Opinion
D069696
04-18-2018
THE PEOPLE, Plaintiff and Respondent, v. ANGEL BLAS BURQUEZ et al., Defendants and Appellants.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Angel Burquez. Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant Arnold Celaya. Gordon S. Brownwell, under appointment by the Court of Appeal, for Defendant and Appellant Antriel Aaron Matthews. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD255510) APPEALS from judgments of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed in part; reversed in part with directions. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Angel Burquez. Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant Arnold Celaya. Gordon S. Brownwell, under appointment by the Court of Appeal, for Defendant and Appellant Antriel Aaron Matthews. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
This case concerns the murder of a 14-year-old boy during a gang-related dispute about a baseball cap. Angel Blas Burquez, Arnold Celaya and Antriel Aaron Matthews (together, defendants) were convicted of first degree murder in the death of Richard Carrillo (Richy). (Pen. Code, § 187). The jury sustained findings the defendants were active participants in a criminal street gang (§ 190.2, subd. (a)(22)); a principal discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)); the crime was committed 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 criminal conduct by gang members (§ 186.22, subd. (b)(1)); and Burquez and Matthews each intentionally and personally discharged a firearm (§ 12022.53, subd. (c)). On January 15, 2016, the court sentenced each defendant to life without the possibility of parole, plus 25 years to life.
The record shows multiple spellings for Richard Carrillo's nickname. For purposes of this opinion, we refer to him as Richy.
Further unspecified statutory references are to the Penal Code.
Burquez contends the trial court prejudicially erred in admitting his incriminatory statements obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He also argues the abstract of judgment should be amended to reflect joint and several liability for direct victim restitution, and a parole revocation fine should be stricken in view of his sentence of life without the possibility of parole. In supplemental briefing, Burquez asks this court to remand his case for resentencing to allow the trial court to consider recently enacted legislation giving the trial court the discretion to strike or dismiss a firearm use enhancement. (§§ 12022.5, subd. (c), 12022.53, subd. (h) [eff. Jan. 1, 2018].)
Celaya asserts the court abused its discretion in excluding impeachment evidence, which prejudicially violated his constitutional right to confront the witnesses against him. Celaya also argues the court was required to, but did not, instruct the jury on the lesser-included offenses that were supported by substantial evidence, thus preventing the jury from returning a verdict of second degree murder on alternative theories of liability.
Matthews argues, in view of his age at the time of the offense, a life sentence without the possibility of parole, consecutive to 25 years to life, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
The People concede defendants' abstracts of judgment should be amended to reflect joint and several liability for direct victim restitution and to strike the parole revocation fine. The People argue newly enacted legislation concerning the trial court's discretion to strike or dismiss a firearm use enhancement applies to these defendants, but oppose remand because the record clearly shows that the court would not have exercised its discretion to strike the defendants' firearm use enhancement.
We agree that some statements Burquez made during a police interrogation were obtained in violation of Miranda, but conclude the error was harmless beyond a reasonable doubt. We accept the People's concessions to amend the defendants' abstracts of judgment to reflect joint and several liability and to strike the parole revocation fine. We also agree that recent legislation giving the trial court discretion to strike or dismiss firearm use enhancements applies in this case, but for reasons we will discuss, determine remand is not required. Otherwise, we find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Overview
In 2012, City Heights Juniors (Juniors), a criminal street gang, and J Block, which at that time was primarily a tagging crew, each claimed the letter "J" and marked their affiliation by wearing Toronto Blue Jays baseball caps. A feud developed between the two sets. Celaya, who had status in Juniors, instructed its members to take "J" baseball caps away from J Block members. The feud escalated into open conflict on March 11, 2012. Two Juniors took a Blue Jays baseball cap from a J Block gang member. A short time later, the Juniors hit the J Block gang member, who was riding a bicycle, with their car, pinning the bicycle under the car and rendering their car inoperable. The J Block gang member retrieved a gun and fired several bullets into the windshield of the car, resulting in his arrest.
On the evening of March 23, 2012, two J Block gang members, Jorge Gomez and Jose H., a 15-year-old J Block member, were hanging out in an alley behind Jose's apartment in southeast San Diego. A white Ford Mustang pulled up. A stocky Mexican man with a shaved head got out of the Mustang and asked Gomez and Jose, "Where are you from," a common gang challenge. Gomez and Jose did not respond and walked away. The man left in his Mustang. Celaya drove a white Mustang and his appearance matched the description of the man who had confronted the J Block members.
On the evening of March 24, 2012, 14-year-old Richard Carrillo was playing with friends, including Gomez and Jose, in the same alleyway where Gomez and Jose had been the previous evening. Richy was not a gang member. Jose was wearing a Blue Jays baseball cap. A Jeep Cherokee (Jeep) pulled up and stopped next to where they were playing. Two men exited the passenger side of the Jeep and began shooting. Richy and his friends started to run away. Richy was hit in the back. A .38-caliber bullet ricocheted through his body, injuring his right lung, aorta and pulmonary artery before lodging in his heart. Police and emergency responders were on the scene within minutes but were unable to save him.
A homicide investigation continued over the next two years. From the outset of the investigation, detectives suspected Juniors may have been involved. A tip led them to Lazaro Basoco-Aguilar (Basoco), a Juniors gang member, who admitted having been in the Jeep at the time of the murder. Basoco identified Matthews as one of the shooters and stated Celaya and Burquez were also in the Jeep. Another Juniors member implicated Matthews and later identified Isaias Lopez, Jr. (Lopez), as the fifth person in the Jeep.
The People initiated criminal proceedings against Burquez, Matthews, Celaya and Basoco on June 6, 2014. Lopez was arrested in January 2015. Basoco and Lopez pleaded guilty to voluntary manslaughter with a gang enhancement, and agreed to cooperate with authorities. On March 6, 2015, a grand jury returned an indictment against Burquez, Matthews and Celaya for the murder of Richard Carrillo with special circumstances.
Basoco and Lopez agreed to testify in exchange for a sentence ranging between time served and 21 years.
The Trial
Opening statements in the defendants' joint trial began on November 9, 2015, and the trial concluded on December 8, 2015. As summarized below, the jury heard testimonies of the two cooperating witnesses, a former Juniors member, three eyewitnesses and several law enforcement officers.
Lazaro Basoco-Aguilar
In early 2012, 16-year-old Basoco became a Juniors member. Basoco spent time at Celaya's house, which was a hangout for the gang. Celaya and Matthews were higher-ups in the gang and engaged in a lot of criminal activity. Burquez was not a gang member but he and Celaya appeared to be good friends. Burquez had a small gun that looked like a .22-caliber pistol. Celaya had a .38-caliber revolver.
Basoco testified he and other Juniors gang members were at Celaya's house on March 24, 2012, the day of the murder. In the late afternoon, Celaya telephoned Burquez and told him to "bring that," referring to Burquez's gun. A short time later, Burquez and a light-skinned Mexican (later identified as Lopez) came to Celaya's house. Burquez was "hyped up." He repeatedly said, "let's go shooting." Celaya told Basoco he was going to take him under his wing and show him the "right way" to commit crimes.
Celaya, Matthews, Burquez, Lopez and Basoco went into Celaya's bedroom. Celaya and Matthews chose who would shoot the guns, who would drive and who would watch the shooting. Celaya handed out darker clothes and hoodies from his closet to those who were wearing lighter-colored shirts or did not have hoodies. The group passed around the two guns and took turns smoking crystal methamphetamine. Basoco said, "[T]hey were going to take the guns and look for J Block gang members to—to shoot them, to kill them really."
Basoco testified that Matthews put Celaya's .38-caliber revolver in the waistband of his pants. Burquez had his own gun. Celaya drove, Burquez sat in the front passenger seat, Matthews was in the rear passenger seat, Lopez sat behind the driver's seat and Basoco sat between Matthews and Lopez. Matthews was wearing a Blue Jays baseball cap and a black hoodie. He had on black gloves and a black bandana, which he pulled up over his face.
It took approximately 10 to 15 minutes to drive from Celaya's home to the J Block area. As they approached, Celaya started driving more slowly. He said, "I think that's them." As soon as he stopped the Jeep, Matthews and Burquez jumped out and started shooting.
Basoco testified that after the shooting, Matthews was excited and said he thought he hit one. When they returned to Celaya's house, Celaya wanted to watch the news. There was a report about the shooting. Celaya and Matthews were "pretty happy." They had big smiles on their faces and said, "We finally hit one." Isaias Lopez, Jr.
Lopez testified that he and Burquez were friends. Lopez became a member of Juniors several months after the shooting. Burquez was not a gang member, but he hated J Block because he lived nearby and would "get hit up by them."
On the day of Richard Carrillo's murder, Celaya telephoned Burquez. Lopez and Burquez drove to Celaya's house in Lopez's father's burgundy Jeep. There, Celaya, Matthews, Burquez and Lopez talked about retaliating on J Block.
When they left, Celaya drove straight to the J Block area in the Jeep. Matthews had a .38-caliber revolver in his lap. When Burquez saw some people by the tailgate of a truck, he told Celaya to stop. As soon as Celaya stopped, Burquez and Matthews stepped out and began shooting. Burquez fired the .25-caliber pistol. Matthews fired the .38-caliber revolver. After the shooting, they drove back to Celaya's house.
A few days later, Lopez was at a meeting with Matthews, Celaya and Burquez at Celaya's house. Matthews said he "fucked up." They were afraid other gangs would come after the Juniors for killing a kid who was not a gang member. Burquez felt badly about Richy's death. He put his head down and worried it might have been his bullet that killed him.
Fabian Sanchez, Former Juniors Gang Member
Fabian Sanchez testified Celaya had a .38-caliber handgun at his house. After Richard Carrillo's murder, Sanchez and Celaya sold the gun. A week or two after the murder, he and others were at Celaya's house smoking methamphetamine. Matthews said he "fucked up," saying he was trying to shoot some J Block gang members but instead shot a "little kid."
Eyewitness Testimonies
In March 2012, Gomez was 20 years old. He was a member of J Block. Gomez was friends with Jose. Jose and Richy were good friends. On the evening of March 24, Gomez, Richy and Jose were hanging out in the parking lot of Gomez's apartment building. There were other children playing nearby. Richy was standing by a truck listening to Jose's iPod.
Gomez saw a burgundy Jeep with tinted windows moving slowly down the alley. When it came to a stop, two of the passengers got out of the Jeep and started shooting at Gomez and his friends. Gomez said the front seat passenger/shooter was a Mexican man, perhaps in his 20s, approximately five feet six inches tall, 150 pounds. He was wearing a gray hoodie and had a gun in his right hand. Gomez did not see the backseat passenger/shooter before he and the others turned and ran.
Jose testified that Richy was not interested in joining J Block. On March 24, Jose was wearing a Blue Jays baseball cap. Jose noticed a burgundy Jeep with tinted windows that stopped in the middle of the alley. The backseat passenger was wearing a Blue Jays baseball cap pulled down and a black hoodie. The front seat passenger was wearing a gray hoodie. He was light skinned. They got out of the Jeep and began shooting. When Jose turned and ran, he heard bullets pass his ear.
Brian M. was 11 years old when he witnessed the shooting. He and Richy had been playing cops and robbers in the alley outside his apartment building, and had been chasing each other. Brian lost track of Richy and began playing with a five-year-old boy. Brian saw a vehicle pull up. A man came out of the front passenger seat. He had short, dark brown hair and looked like a "white Hispanic." Brian saw the man take a silver gun out of his waistband with his left hand. The gun had a wheel around the trigger. Brian heard gunshots and ducked. He hid the five year old behind a car. He saw the gunman run back to the front passenger seat. Brian identified a Raven Arms .25-caliber semiautomatic pistol as the gun used by the front seat passenger/shooter.
Law Enforcement Evidence
The first 911 call reporting the shooting was received shortly before 8:07 p.m. Surveillance audio and video captured the sound of six rapid shots, followed by three more rounds with a different tone. A criminalist with the San Diego Police Department (SDPD) testified the first six shots were consistent with a .38-caliber revolver. The last three shots were consistent with a .25-caliber automatic pistol. A .25-caliber handgun is not common. A .38- or .357-caliber bullet was recovered from the victim's heart and two .25-caliber casings were found at the scene of the crime.
SDPD Detective Alfred Lozano was the lead homicide investigator in the case. Lozano learned there was a feud between Juniors and J Block concerning each gang's claim to wear Toronto Blue Jays baseball caps. Lozano obtained photos showing Celaya displaying a .38- or .357-caliber handgun, and photos of Celaya with Lopez, Matthews and other Juniors gang members. Lozano also recovered a Facebook post Celaya had made on the morning of March 23, 2012, stating, it's "too easy pulling 187s," a term referring to the Penal Code section for murder. On March 30, a Juniors gang member posted on Celaya's Facebook page that she had heard "you guys shot this one fool Richy." Celaya replied, "Aha. Aha. Aha."
Detectives obtained cell phone records for Celaya's and Matthews's cell phones. Celaya's cell phone records showed that on March 24, 2012, there were two calls to Burquez's phone, the first at 4:58 p.m., for two minutes and seven seconds, and the other at 5:21 p.m., for 18 seconds. There were text messages between Celaya and Burquez at 7:07 p.m., 7:10 p.m. and 7:35 p.m. Celaya's records also show a 20-second call to Matthews's cell phone at 7:51 p.m., but no corresponding record on Matthews's cell phone. The cell tower data for phone calls from Matthews's phone between 7:52 p.m. and 7:58 p.m. indicate movement from Celaya's house to the crime scene.
By the time detectives identified Burquez as a suspect, the service provider did not have the historical data for his cell phone.
On June 3, 2014, law enforcement officers questioned Burquez, who was in custody on other charges, about his role in the murder of Richy. The court overruled Burquez's objection to the admission of portions of the interrogation on Miranda grounds and admitted the entire interrogation, with minor redactions on other grounds, into evidence. During the interrogation, Burquez, at first implicitly and later explicitly, admitted to having been in the vehicle at the crime scene. He never admitted to firing a weapon.
See Discussion, Part I, post.
On August 27, 2014, Burquez telephoned his girlfriend from jail and told her to get a message to Lopez (who had not yet been arrested) to "get out of Cali MIA," which meant to leave California and go missing in action. On November 8, 2014, Burquez telephoned his cousin from jail and told him to tell Lopez "to get out or he's getting L," meaning a life-term prison sentence.
Verdicts
The jury returned verdicts of first degree murder with true findings on the gun use and gang enhancements as detailed, ante, at pages 1 to 2.
Sentencing
At the sentencing hearing, the court rejected defendants' argument that the imposition of a life sentence without the possibility of parole constituted cruel and unusual punishment in violation of the Eighth Amendment and the California Constitution, and imposed sentences of life without the possibility of parole on Burquez, Matthews and Celaya, along with additional determinate sentences related to the gun use and gang enhancements.
DISCUSSION
I
BURQUEZ'S MIRANDA CLAIM
A
The Parties' Arguments
Burquez argues the court erred in denying his motion to suppress a portion of his custodial interrogation in which he admitted he was the front seat passenger in the vehicle used in the murder of Richard Carrillo. Burquez contends law enforcement officers violated his rights under Miranda and its progeny by continuing to question him about the murder after he invoked his right to remain silent by stating he did not want to talk and repeatedly telling the officers he wanted to leave. He asserts, in view of the totality of the evidence and the gravity of the constitutional error, the error is prejudicial and his conviction should be reversed.
The People claim Burquez waived his Miranda rights and did not subsequently unequivocally invoke his right to remain silent. In view of Burquez's initial incriminating statement during the interview and the corroborated testimonies of his accomplices, the People argue that error, if any, is harmless beyond a reasonable doubt.
B
Factual Background
On June 3, 2014, Sergeant Lee Norton and Detective Jon Dungan (together, officers) of the SDPD interviewed Burquez, who had been arrested and was in custody. The interrogation was 51 minutes long. The officers told Burquez they wanted to talk to him about the murder of "Little Richy." Burquez denied any knowledge of the crime. Norton said they had investigated the case and knew the identity of everyone who was in the vehicle used in the murder. He advised Burquez they were charging him with the murder of Richard Carrillo. Burquez denied any involvement. Norton read the Miranda advisement to Burquez and asked him if he understood his rights. Burquez gave his consent to the interrogation, saying that he understood his rights.
The officers asked Burquez to sign a written copy of the Miranda advisement, and observed that he signed the document with his left hand. Norton asked Burquez, "You left handed?" Burquez said, "yeah."
Over the next 38 minutes, the interrogation proceeded as follows: The officers said they knew that Burquez was one of the shooters. Burquez continued to deny involvement. The officers said they knew Burquez was in the car. Burquez denied being in the car. Burquez said he passed by the crime scene on the way to the beach with his friend, Lopez, and their girlfriends, and saw all the police cars there.
Norton said he had information the argument with J Block started with J Block targeting Burquez. Burquez said he was jumped and beaten up by J Block members several times. He stated they came to his house "thirty deep" and he hated them. After discussing some unrelated gang incidents, Dungan asked Burquez to put Richy's mother at ease because she had been suffering for two years, thinking her son was shot because he was a gangster. Burquez said Richy "wasn't meant to die." He was a skater, not a gangster.
Norton repeatedly said he knew that Burquez felt badly about Richy's murder and could tell he wanted to talk about it. The officers told Burquez they knew he had borrowed the car used in the shooting. In response, Burquez said, "And I, I didn't, I didn't shoot."
After Burquez avoided answering several questions, Norton said they would start with "the easy stuff" and asked about the model of the car. Burquez responded, "It was a Jeep." He did not respond to a question about the Jeep's color. Norton told Burquez they wanted to see how honest he was and asked if he had borrowed the car from a friend. Burquez said he did not borrow the car, it was his friend's car. When Norton pressed Burquez on the identity of the Jeep's owner, Burquez said, "I don't want to talk. I'd like to go."
The relevant portion of the interrogation is:
"LN: Okay and where did you get the car?
"AB: I don't want to talk. I'd like to go.
"LN: Well I thought you wanted to talk about this.
"AB: You know what?
"JD: You were this close to getting it off your chest man. [¶] . . . [¶]
"JD: Two people shot. Everybody that was there said that.
"AB: Yeah I don't . . . .
"LN: And let me ask you this. You know I've got, I've got different bullets. Different shell casings. You know that okay? There's more than one gun. You know that.
"AB: Uh, I'd like to go. Sorry.
"LN: So you don't want to tell your story? I thought we were that close. You were, you were going to tell me your story.
"AB: It's still the same charge.
"LN: Well you were involved in it. I can't change that. What I can change is the story.
"AB: I don't know. I'd like to go already.
"LN: Angel, listen to what I'm telling you okay. Listen to what I'm telling you. [¶] . . . [¶]
"AB: . . . I'm being charged for this.
"LN: People make mistakes, okay, but . . . .
"AB: I'd like to go . . . .
"LN: . . . the problem is this never goes away.
"AB: Yeah.
"LN: Okay?
"AB: I'd like to apologize. I gotta go.
"LN: Okay. So I guess we're going to write up what I know and . . . .
"JD: Just stay seated, we'll tell 'em.
"LN: Okay, I'll tell them that you're done. You want, you want my card? . . . I'm going to write another phone number down here.
"AB: Can you ask them if I can get a free phone call?
"JD: We can ask. I don't know what their policies are.
"LN: My new number's on the back. So we're done?
"AB: Yeah." (Italics added.)
Norton replied, "Well I thought you wanted to talk about this." Denton said, "You were this close to getting it off your chest man." The officers continued to ask Burquez about the murder. Burquez continued to say he wanted to leave. Burquez's tone was quiet, respectful and apologetic. After the fifth time Burquez said he wanted to go, Norton gave Burquez his card and asked, "So we're done?" Burquez said, "yes."
At this point, approximately 90 seconds after Burquez first said he did not want to talk, there are noises on the recording indicating the officers are getting up to leave. Norton said, "Okay. Just so you know. That this is easiest time to talk to us, because once I walk out of here, things will change for you, okay?" Dungan quickly asked Burquez, "Were any of the other guys in the car left-handed?" Burquez, sounding puzzled, replied, "Left handed? No." Dungan said, "That answers a lot of our questions."
We listened to the entirety of the recording of Burquez's custodial interrogation.
Norton asked whether Burquez was curious about his earlier question about being left-handed. Burquez replied he had one more question. Dungan said, "What you want to know is if the gun you shot killed him right?" Burquez said he wanted to know. Norton said, "Then flat up ask me, 'Is the gun I used, is that the one that' . . . ?" Norton told Burquez he knew which gun killed the victim but would not reveal the information. He told Burquez, "Maybe it was the bullet that you fired." Burquez denied shooting a gun but admitted he had been in the front passenger seat of the car used in the shooting. He said two people in the back seat jumped out of the Jeep. Burquez said he felt sad because he would never shoot a little kid. The officers informed Burquez that everyone who was in the Jeep would be charged with the murder of Richard Carrillo. Burquez said he did not shoot Richy. The officers pointed out that Burquez said he was in the Jeep, and terminated the interrogation.
At trial, Burquez filed a motion to exclude the portion of his interrogation following his statement, "I don't want to talk. I want to go," asserting he had invoked his right to remain silent. The trial ruled there was no Miranda violation and the interrogation was admissible. Later, over Burquez's renewed objection, the court admitted a redacted recording of the interrogation into evidence, including Burquez's explicit admission that he was the front seat passenger in the vehicle at the time it was used in Richard Carrillo's murder.
The redacted version of the interrogation eliminated references to Burquez's codefendants. (See People v. Aranda (1965) 63 Cal.2d 518, 529-531, abrogated in part by Cal. Const., art. I, § 28, subd. (d); Bruton v. United States (1968) 391 U.S. 123, 128-136.)
C
Relevant Legal Principles and Standard of Review
As a safeguard to protect a suspect's Fifth Amendment privilege against self-incrimination, the United States Supreme Court requires law enforcement agencies to advise a suspect, prior to any custodial 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." (Miranda, supra, 384 U.S. at p. 479; People v. Martinez (2010) 47 Cal.4th 911, 947 (Martinez).) Before admitting a defendant's incriminating statements into evidence, the prosecution must demonstrate "the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." (Miranda, at p. 475.)
After a knowing and voluntary waiver of the rights to remain silent and to the presence and assistance of counsel, law enforcement may continue questioning the suspect until and unless the suspect clearly and unambiguously invokes these rights. (Davis v. United States (1994) 512 U.S. 452, 461 (Davis).) An unambiguous request for counsel or refusal to talk bars further questioning (People v. Cruz (2008) 44 Cal.4th 636, 668 (Cruz)) and "the interrogation must cease" (Miranda, supra, 384 U.S. at p. 474). A warning by law enforcement officers that it is the suspect's last chance to cooperate violates Miranda when the warning is designed to evoke an incriminating response. (United States v. Padilla (2004) 387 F.3d 1087, 1093 (Padilla); see R.I. v. Innis (1980) 446 U.S. 291, 301 (Innis).)
If a suspect makes an ambiguous statement that could be construed as an invocation of his Miranda rights, a different standard applies. A statement is ambiguous when a reasonable officer, in view of the totality of the circumstances, would have understood "only that the suspect might be invoking the right" to remain silent or to the assistance of counsel. (People v. Williams, (2010) 49 Cal.4th 405, 428 (Williams).) "[O]fficers may, but are not required to, seek clarification of ambiguous responses before continuing substantive interrogation." (Id. at p. 427 [discussing invocation of right to counsel]; see Martinez, supra, 47 Cal.4th at p. 949 [the same rules apply to invocations of the right of counsel and the right to remain silent].)
"In certain situations, words that would be plain if taken literally actually may be equivocal under an objective standard, in the sense that in context it would not be clear to the reasonable listener what the defendant intends. In those instances, the protective purpose of the Miranda rule is not impaired if the authorities are permitted to pose a limited number of followup questions to render more apparent the true intent of the defendant." (Williams, supra, 49 Cal.4th at p. 429.) Although officers are not required to clarify what may be a postwaiver invocation, " 'it will often be good police practice for the interviewing officers to clarify . . . ' whether the right was being invoked." (Martinez, supra, 47 Cal.4th at p. 947, quoting Davis, supra, 512 U.S. at p. 461.)
The reviewing court conducts an independent review of the trial court's legal determination of the postwaiver invocation of a Miranda right, relying upon the trial court's factual findings, if supported by substantial evidence. (Williams, supra, 40 Cal.4th at p. 425.)
D
The Officers' Continued Questioning Violated Burquez's Right Against Self-incrimination
Burquez argues that his statement, "I don't want to talk. I'd like to go," followed by four additional statements that he wanted to leave the interrogation, constitute an unequivocal invocation of his right to remain silent. The People assert Burquez's statements were merely expressions of frustration with the officers' refusal to believe his story. We do not find the People's argument persuasive.
Burquez's initial statement, "I don't want to talk. I'd like to go," is plain if taken literally; however, the officers did not violate Miranda by posing a limited number of follow-up questions to clarify Burquez's intent. (Williams, supra, 49 Cal.4th at p. 429.) While the officers properly asked Burquez whether he was certain he did not want to tell his story, Norton's question whether Burquez knew there were different bullets and shell casings was designed to evoke an incriminating response and thus violated Miranda.
The officers again violated the Miranda rule by interrogating Burquez after ostensibly terminating the interview by asking additional questions intended to elicit incriminating information. Norton told Burquez, "Okay. I'll tell them that you're done," gave Burquez his card, and clarified that Burquez did not want to talk to the officers. Norton asked, "So we're done?" Burquez replied, "Yeah." Norton stated he would tell the others the interrogation was finished and again confirmed that Burquez intended to remain silent. (See Cruz, supra, 44 Cal.4th at p. 668 [defendant's refusal to talk barred further questioning].)
However, as the officers started to leave the room, Norton told Burquez, "Okay. Just so you know. That this is easiest time to talk to us, because once I walk out of here, things will change for you, okay?" Dungan, very quickly, asked Burquez, "Were any of the other guys in the car left-handed?" Burquez, sounding puzzled, replied, "Left-handed? No." Because Burquez's answer would implicitly acknowledge he knew all the men in the vehicle when the shooting occurred, and the officers knew that an eyewitness claimed that one of the shooters was left-handed and that Burquez was left-handed, Burquez's denial that any of the other men in the car were left-handed would directly implicate him as one of the shooters. The hurried manner in which Dungan posed the question, after informing Burquez they were leaving, suggests Dungan was trying to elicit incriminating information from Burquez before stopping the interrogation in compliance with Miranda and its progeny.
In addition, Norton's statement, "things will change for you," once the officers left essentially warned Burquez it was his last chance to cooperate with police and potentially benefit from that cooperation. (See Padilla, supra, 387 F.3d at p. 1093 [officer's warning it was suspect's last chance to cooperate was designed to evoke an incriminating response].) Norton's threat was "reasonably likely to elicit an incriminating response from the suspect" and was therefore prohibited. (Innis, supra, 446 U.S. at p. 302.)
The People maintain Burquez's postinvocation statements show he did not actually invoke his right to remain silent. This argument is undermined by Norton's statement, "I'll tell them that you're done," implicitly terminating the interrogation and recognizing that Burquez was asserting his right to remain silent. Moreover, a suspect's postinvocation responses to further questioning may not be used to cast doubt on the validity of an unambiguous invocation of his rights. (Smith v. Illinois (1984) 469 U.S. 91, 98-99; People v. Villasenor (2015) 242 Cal.App.4th 42, 65.) By this point in the interrogation, there was no ambiguity about Burquez's intent. Using a suspect's "subsequent responses to cast doubt on the adequacy of the initial request itself is even more intolerable. 'No authority, and no logic, permits the interrogator to proceed . . . on his own terms and as if the defendant had requested nothing, in the hope that the defendant might be induced to say something casting retrospective doubt on his initial statement that he wished to speak through an attorney or not at all.' " (Smith, at pp. 98-99.)
Considering all the circumstances, the record shows that Burquez unambiguously invoked his right to remain silent by asserting he did not want to talk to the officers and insisting he wanted to leave. The officers continued to interrogate him with the purpose of eliciting incriminating responses. We conclude the continuation of the interrogation violated Burquez's constitutional right against self-incrimination, but the statements he made prior to his invocation of Miranda rights were properly admitted in evidence. (Miranda, supra, 384 U.S. at p. 474; Davis, supra, 512 U.S. at p. 461; Cruz, supra, 44 Cal.4th at p. 668.)
E
The Error Was Harmless Beyond a Reasonable Doubt
The erroneous admission of statements obtained in violation of Miranda is reviewed for prejudice under Chapman v. California (1967) 386 U.S. 18, which requires the error to be harmless beyond a reasonable doubt. (Arizona v. Fulminate (1991) 499 U.S. 279, 310; People v. Cunningham (2001) 25 Cal.4th 926, 994.) Here, the trial court erroneously admitted the portion of the interrogation after Burquez stated he did not want to talk to the officers and wanted to leave. This portion included his admission he was in the front passenger seat of the Jeep at the time of the murder. We emphasize that Burquez's statements from the time he waived his Miranda rights to the time he reasserted those rights were properly admitted in evidence (admissible portion of the interrogation).
Burquez contends the Miranda violation was prejudicial because other than his incriminating statements—most importantly his explicit admission he was in the Jeep at the time of the murder—the only evidence against him was based on Basoco's and Lopez's self-serving testimonies. He notes there was no forensic evidence to connect him to the car, gun or bullets used in the shooting, and no eyewitness identification. He points out the jury asked for, and obtained, a copy of the transcript of the interrogation, and argues this indicates the jury focused on the improperly admitted evidence. Burquez states the prosecution relied heavily on his incriminating statements in closing argument and, therefore, even in view of the lack of credible, corroborated evidence against him, his defense could not overcome the impact of his improperly obtained confession.
We are not persuaded. The evidence shows beyond a reasonable doubt Burquez was involved as a principal in the murder of Richard Carrillo. During the admissible portion of the interrogation, Burquez made several incriminating statements. He admitted he was left-handed. He told the officers he hated J Block because they had assaulted him on several occasions, implicitly providing a motive for his involvement. Burquez said Richy "wasn't meant to die," an implicit admission they were targeting others. When the officers told Burquez they knew he had borrowed the car used in the shooting, Burquez did not deny it. Instead, he responded, "I didn't shoot," thereby implicating himself as having been in the car at the time of the shooting. Burquez implicitly confirmed his participation by identifying the vehicle used in the shooting as a Jeep.
In addition to Burquez's explicit and implicit admissions during the admissible portion of the interrogation, there is ample evidence to corroborate Basoco's and Lopez's testimonies. Basoco and Lopez each testified that shortly before the murder, Burquez received a telephone call from Celaya instructing him to bring his gun. Telephone records confirm telephone calls between Celaya's phone and Burquez's phone shortly before the shooting. Basoco testified Burquez and Lopez showed up at Celaya's house a short time after Celaya telephoned Burquez. Burquez had his gun and was eager to shoot a J Block member. Lopez said J Block members had harassed Burquez and that Burquez hated them. This is confirmed by Burquez's own statement to the officers that he hated J Block. Lopez testified that, shortly before the murder, he drove his father's Jeep to Celaya's house with Burquez. This is corroborated by Burquez's admissible statements to the police. In trying to establish an alibi, Burquez mentioned he and a friend, Lopez, had passed the crime scene on their way to the beach with their girlfriends. Although he did not identify Lopez by name, Burquez said the Jeep used in the murder was his friend's vehicle.
Basoco and Lopez identified Burquez as the front seat passenger and one of the shooters. Eyewitness descriptions of the front seat passenger/shooter matched Burquez's physical description, and an eyewitness said that the shooter was left-handed, as was Burquez. Basoco said Burquez had a small handgun. An eyewitness saw the front seat passenger/shooter with an uncommon .25-caliber gun and there were .25-caliber casings found at the crime scene. Lopez said Burquez was remorseful when he learned they had killed Richy, and was worried that a bullet from his gun had killed him. During the admissible portion of the interrogation, Burquez expressed regret that Richy had been killed. He approached Richard Carrillo's mother seeking information about her son's death. After his arrest, Burquez told his girlfriend and cousin to tell Lopez to leave town before Lopez had been identified by police as the fifth person in the Jeep at the time of the murder.
In view of the testimonies identifying Burquez as an active participant in the murder of Richard Carrillo, his motive for the shooting, and the corroborating evidence, including Burquez's implicit admission during the admissible portion of the interrogation that he was in the Jeep at the time of the crime, Burquez's resemblance to the description of the front seat shooter, including the fact he was left-handed, and the evidence linking Burquez's .25-caliber gun to the crime scene, we conclude that the admission of the portion of the custodial interrogation obtained in violation of Miranda was harmless beyond a reasonable doubt.
II
EXCLUSION OF IMPEACHMENT EVIDENCE
Celaya, joined by Matthews, contends the trial court erred when it denied defendants' request to impeach Sanchez, who had five felony convictions for car theft and auto burglary, with the uncharged act of throwing a beer bottle at his girlfriend while their children were present. He argues domestic assault is a crime of moral turpitude and was therefore relevant to Sanchez's credibility as a witness. Celaya asserts the error is of constitutional magnitude.
A
Additional Factual Background
The record shows defendants made a pretrial motion, including an offer of proof, to impeach Sanchez with his act of violence against his children's mother. The defense asked to allow the victim and another eyewitness to testify. The prosecutor argued the uncharged conduct did not implicate Sanchez's truthfulness or veracity, and would result in the undue consumption of time because the People would then call additional witnesses to testify about the incident and explain why the city attorney rejected the case for misdemeanor prosecution.
The court said it would certainly permit a witness to be impeached with documentary evidence of prior convictions involving crimes of moral turpitude. Citing Evidence Code section 352, the court refused to "open the door for collateral and extraneous witnesses to come in on a collateral matter as it relates to credibility" and denied the request to impeach with evidence of the uncharged misconduct.
At trial, Sanchez testified he joined Juniors when he was 11 years old but was no longer a gang member. He frequently used methamphetamine at Celaya's house. Sanchez said he had been convicted of auto theft and four counts of car burglary. He acknowledged he helped Celaya sell his gun after the murder. On cross-examination, Sanchez said he had four felony cases pending sentencing on a total of six felony convictions, including unlawfully driving another person's car, car burglary, car theft and possession of methamphetamine. He was facing a total of eight years four months in prison. In exchange for his cooperation in this and another criminal case, the district attorney agreed to recommend sentencing Sanchez to probation.
After Sanchez testified, defense counsel asked to call two witnesses to testify Sanchez threw a beer bottle at the mother of his children. The defense wanted the jury to understand the extent of Sanchez's moral turpitude. The court again denied the request under Evidence Code section 352. The defense claimed the inability to impeach Sanchez violated their clients' rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.
B
Relevant Legal Principles and Standard of Review
"Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination.' (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352." (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) "A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (Ibid.)
A trial court has the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) The trial court has broad discretion to control the admission of proposed impeachment evidence " ' "to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." [Citation.]' " (People v. Lewis (2001) 26 Cal.4th 334, 374-375.)
"[R]eliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendant's constitutional rights to confrontation and cross-examination." (People v. Brown (2003) 31 Cal.4th 518, 545; People v. Mendoza (2011) 52 Cal.4th 1056, 1089-1090 (Mendoza) [not every restriction on a defendant's desired method of cross-examination is a constitutional violation].)
We review a trial court's ruling under Evidence Code section 352 for abuse of discretion. (People v. Mills (2010) 48 Cal.4th 158, 195 (Mills).)
C
Analysis
The court reasonably determined the issue of whether Sanchez threw a beer bottle at his children's mother was collateral to any material disputed issue concerning the murder of Richard Carrillo. Even though a fact may bear on the credibility of a witness, the underlying incident may be collateral to the case. (People v. Contreras (2013) 58 Cal.4th 123, 152.) The trial court has wide latitude to exclude evidence offered for impeachment that is collateral to the underlying disputed action. (Ibid.) Here, the court rejected defense claims that presenting witnesses to testify about the incident would not involve undue time, stating, "I don't think anything's very quick when I've got three defense counselors and a prosecutor" with the right to cross-examine every witness. The prosecution said in the event the defense was allowed to impeach Sanchez with this evidence, it would also call several witnesses.
"[I]mpeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (People v. Wheeler (1992) 4 Cal.4th 284, 296-297; People v. Chatman (2006) 38 Cal.4th 344, 373.) In view of the undue consumption of time on a collateral matter, we find no abuse of discretion under Evidence Code section 352.
A reasonable jury would not have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. (Quartermain, supra, 16 Cal.4th at pp. 623-624.) The jury heard evidence that Sanchez was a longtime Juniors gang member with a history of felony convictions. He was a methamphetamine user. He admitted helping Celaya sell the gun used to kill Richard Carrillo. Sanchez was cooperating with the prosecution to avoid significant prison time. The routine application of state evidentiary law does not implicate a defendant's constitutional rights. (Mills, supra, 48 Cal.4th at p. 196.) We therefore reject defendant's constitutional claims.
III
CLAIM OF INSTRUCTIONAL ERROR
Celaya contends the trial court erred in failing to instruct the jury on two theories of second degree murder: One, the murder of Richard Carrillo was a natural and probable consequence of defendants' uncharged conspiracy to commit assault with a firearm; and, two, the murder was a natural and probable consequence of defendants' plan to kill a J Block gang member. Celaya submits the error is prejudicial, arguing there was ample evidence on which the jury could conclude there was reasonable doubt of intent and premeditation.
The People disagree, noting the court properly instructed the jury on the lesser included offense of second degree murder under theories of direct aider and abettor liability and coconspirator liability, and instructions based on the natural and probable consequence doctrine were unwarranted because (1) there was no evidence to show that Celaya or his coconspirators intended to commit only an assault, and (2) the proof required to establish that Richard Carrillo's murder was the natural and probable consequence of defendants' intent to kill a J Block member is identical to the proof required to convict Celaya of first degree murder under the doctrine of transferred intent, and no reasonable jury could conclude that only the lesser crime was committed. The People also assert the error, if any, is harmless because the jury found beyond a reasonable doubt that Celaya had the specific intent to kill and had resolved disputed factual issues related to theories of second degree murder against him.
A
Procedural Background
During a midtrial discussion with counsel, the court asked the prosecutor for his theory of first degree murder, noting it took time to edit the jury instructions. The prosecutor said he was relying on premeditation and deliberation, and would not be using theories of lying in wait or natural and probable consequences. Defense counsel did not object.
After the close of evidence, during a jury instruction conference, the prosecutor objected to language in the conspiracy instruction (CALCRIM No. 417) that referred to the natural and probable consequence of an uncharged conspiracy to commit murder. Burquez's counsel objected, saying the natural and probable consequence doctrine was a part of the definition of conspiracy, and the court should not instruct on conspiracy without including the natural and probable consequence language.
The court concluded that the natural and probable consequence doctrine was not relevant to this case and refused to include that language in the conspiracy instruction. The court noted this decision inured to defendants' benefit because redacting the natural and probable consequence language from the uncharged conspiracy instruction would enhance the defendants' due process protections.
We reject Celaya's claim the trial court allowed the prosecutor to "veto" jury instructions on the natural and probable consequence theory of second degree murder. The record shows the trial court listened to arguments of counsel and made its decision.
Therefore, the court instructed the jury that "[t]o prove that a defendant was a member of a conspiracy in this case, the People must prove that: [¶] 1. the defendant intended to agree and did agree with one or more of the other defendants and/or . . . Basoco . . . and/or . . . Lopez to commit Murder," and one or more of the coconspirators committed at least one overt act, including obtaining firearms or a vehicle, traveling by vehicle to the crime scene, exiting the vehicle with a loaded firearm, and shooting a firearm at others. (CALCRIM No. 416.) The court also instructed the jury "[a] member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime." The court omitted the natural and probable consequence language usually contained in that instruction. (See CALCRIM No. 417 ["A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the . . . conspiracy . . . . [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes."].)
The court further instructed the jury: "If you decide that the defendant committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree . . . ." (CALCRIM No. 520.) To prove murder in the first degree, the People must prove the defendant acted willfully, deliberately and with premeditation. (CALCRIM No. 521.) "The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder." (CALCRIM No. 521.)
B
Relevant Law and Standard of Review
In a criminal case, a trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) A trial court has a sua sponte duty to instruct the jury on all theories of a lesser included offense that find substantial support in the evidence. "Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense." (People v. Shockley (2013) 58 Cal.4th 400, 403 (Shockley).) "On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (Breverman, at p. 162; People v. Smith (2013) 57 Cal.4th 232, 240.)
Claims of instructional error are reviewed de novo. (People v. Shaw (2002) 97 Cal.App.4th 833, 838.)
C
Duty to Instruct on Natural and Probable Consequence of an Uncharged Conspiracy to
Commit Assault with a Firearm
Celaya's argument lacks merit as it lacks evidentiary support. At trial, not one of the defendants advanced the proposition that if there were a conspiracy, it was based on an agreement to shoot at, but not kill, members of J Block. At the crime scene, the defendants did not brandish weapons or shoot warning shots. Instead, after someone in the Jeep determined there was a J Block member in the alley, Celaya stopped and, without warning, Burquez and Matthews jumped out of the Jeep and started firing their guns directly into a crowd of young people and children. Jose, wearing a Blue Jays baseball cap, said he heard bullets pass his ear. When Celaya learned the defendants had killed someone, he was happy they "finally hit one." Celaya does not, and cannot, point to any evidence to support the theory defendants intended only to commit an assault with a firearm.
Celaya argues a properly instructed jury could have rejected Basoco's and Lopez's testimonies concerning the events on the evening of March 24. Celaya asserts that, without their testimonies, there is no evidence to show that Celaya was involved in a murder conspiracy that resulted in Richard Carrillo's death. This argument misstates the legal standard. Credibility is a question for the jury, and does not enter into this court's assessment of whether the theory of liability has substantial support in the evidence "from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense." (Shockley, supra, 58 Cal.4th at p. 403.) For the jury to believe that the defendants had entered into a conspiracy to commit assault with a firearm, there would have to be some support in the evidence to show the defendants intended only to assault J Block members, not to kill them. We find none in the record.
The evidence shows that Celaya, who had status in the Juniors, did not want J Block members to wear Blue Jays baseball caps. Celaya telephoned Burquez in the late afternoon of the day of the murder and asked Burquez to come to his house and bring his gun. A short time later, Burquez and Lopez arrived at Celaya's house. Celaya told Basoco he was going to take him under his wing and show him the "right way" to commit crimes. Celaya, Matthews, Burquez, Lopez and Basoco went into Celaya's bedroom. Celaya and Matthews planned the attack. Basoco said, "[T]hey were going to take the guns and look for J Block gang members to—to shoot them, to kill them really."
As they approached the J Block area, Celaya started driving more slowly. He said, "I think that's them." As soon as he stopped, Matthews and Burquez jumped out and started shooting. After the shooting, Matthews was excited and said he thought he "hit one." When they returned to Celaya's house, Celaya wanted to watch the news. There was a report about the shooting. Celaya and Matthews were "pretty happy." They had big smiles on their faces and said, "We finally hit one." Later, Matthews said he "fucked up." He was trying to shoot some J Block gang members but instead shot "the little kid." The court is not obliged to instruct on theories that have no evidentiary support. (Breverman, supra, 19 Cal.4th at p. 162.) We conclude the trial court did not err in not instructing the jury on a theory of second degree murder based on natural and probable consequences of an uncharged conspiracy to commit assault with a firearm.
D
Duty to Instruct on Natural and Probable Consequence of an Uncharged Conspiracy to
Kill a J Block Member
We also reject Celaya's theory that he was guilty only of second degree murder on the theory the murder of Richard Carrillo was a natural and probable consequence of the conspiracy to kill J Block members. Celaya relies on In re Brigham (2016) 3 Cal.App.5th 318 (Brigham), in which the reviewing court granted a petition for writ of habeas corpus and reversed a conviction for first degree murder. The reviewing court held that it was impossible to determine whether the jury impermissibly relied on the natural and probable consequence theory to convict petitioner of first degree murder or whether the jury based its verdict on the permissible theory petitioner directly aided and abetted the murder under the doctrine of transferred intent. (Brigham, supra, at pp. 328-329.) Brigham is factually dissimilar to this case and does not assist Celaya's argument.
In Brigham, petitioner and codefendants Bluitt and Moore set out to kill Chuckie, an enemy of their group. Petitioner believed the other group wanted to kill him. (Brigham, supra, 3 Cal.App.5th at p. 323.) In searching for Chuckie, they came across 14-year-old Hosea Barfield. Petitioner told Bluitt that Barfield was not Chuckie. Bluitt said he was going to kill Barfield anyway because of his race. Petitioner tried to stop Bluitt but was unable to prevent him from firing his weapon, killing Barfield. (Id. at p. 324.) The trial court instructed the jury on two theories of first degree murder: one permissible (direct aiding and abetting) and one impermissible (an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequence doctrine). (Id. at pp. 326, 328.)
In reversing the murder conviction, the Brigham court explained petitioner could be found guilty of first degree, premeditated murder as a direct aider and abettor, only if he " 'aided or encouraged the commission of the murder [of Barfield] with knowledge of the unlawful purpose of . . . committing, encouraging, or facilitating its commission.' [Citation.] If he did not intend to commit, encourage or facilitate the premeditated murder of Barfield, he could not be found guilty of that offense on the theory that the murder of Barfield was a natural and probable consequence of the crime he did intend to commit, encourage or facilitate (the premeditated murder of Chuckie)." (Brigham, supra, at p. 329.) Celaya's circumstances are completely different from those of Brigham.
Here, Celaya directly aided and abetted the target offense, to kill J Block members. The record does not show, as in Brigham, that one of Celaya's codefendants realized Richard Carrillo was not a target but decided to kill him anyway. Instead, Matthews and Burquez sprayed bullets at a young man wearing a Blue Jays baseball cap, which resulted in Carrillo's death. As the Brigham court observed, "if Bluitt intended to kill Chuckie and thought he was doing so, but accidentally killed Barfield, petitioner would have been liable as a direct aider and abettor under the doctrine of transferred intent." (Brigham, supra, 3 Cal.App.5th at p. 329.)
This is what happened here. Celaya intended to kill a J Block member but instead facilitated Richard Carrillo's murder under the doctrine of transferred intent. The way in which the defendants planned and perpetrated the murder—by shooting into a group of children playing in an alley—increased the risk the perpetrator would kill someone other than the intended target. Thus, unlike Brigham, in which there was an "independent, intentional, deliberate and premeditated decision to kill a different victim [that] would reflect a personal and subjective state of mind" that did not justify holding the aider and abettor liable for the perpetrator's premeditated independent act (Brigham, supra, 3 Cal.App.5th at p. 329), here there was no such evidence of intent to kill a different victim that would preclude a first degree murder conviction.
To instruct on a theory of a lesser included offense, a reasonable jury must conclude from the evidence the defendant committed "the lesser, but not the greater, offense." (Shockley, supra, 58 Cal.4th at p. 403.) Here, although the jury was properly instructed on second degree murder and that it could not return a verdict of second degree murder unless it found the defendants not guilty of first degree murder (CALCRIM No. 460), the jury did not return a verdict of second degree murder.
Thus, even if the court erred and should have provided a natural and probable consequence instruction, there is no prejudice. Here, the jury received the standard transferred intent instruction, which provides, "[i]f a defendant intended to kill one person, but by mistake or accident killed someone else instead, then the crime, if any, is the same as if the intended person had been killed." (CALCRIM No. 562.) Accordingly, any evidence supporting a theory of second degree murder as a natural and probable consequence of a plan to murder a J Block member would also establish second degree murder under the doctrine of transferred intent. The jury was also instructed that to return a verdict of first degree murder, it must find beyond a reasonable doubt the defendant acted willfully, deliberately and with premeditation, which it did here.
In view of this instruction, the jury necessarily determined that the killing of Richard Carrillo was first degree murder, not murder in the second degree, and error, if any, is harmless. (Cf. People v. Rogers (2006) 39 Cal.4th 826, 884 [failure to instruct on involuntary manslaughter was harmless where jury received instructions on second degree murder and voluntary manslaughter and convicted defendant of first degree murder]; People v. Elliot (2005) 37 Cal.4th 453, 476 [failure to instruct on second degree murder was harmless where special circumstances finding resulted in conviction of first degree felony murder]; People v. Earp (1999) 20 Cal.4th 826, 885-886 [refusal to instruct on implied malice theory of second degree murder and involuntary manslaughter was harmless in view of jury's special circumstances findings]; People v. Price (1991) 1 Cal.4th 324, 464 [failure to give manslaughter instruction was harmless in view of jury's special circumstance finding].)
Because we reject Celaya's arguments concerning instructional error, we need not address his contention the vicarious firearm enhancement under section 12022.53, subdivision (e) does not apply to a conviction for second degree murder based on the natural and probable consequence doctrine.
IV
SENTENCING
A
Matthews's Eighth Amendment Claim
1. The Parties' Arguments
Matthews, who was 21 years old at the time of the murder, argues the bright line rule barring life sentences for those under the age of 18 years should not be applied where a young adult continues to exhibit patterns of adolescent risk-taking and emotional immaturity. He contends his chronological age should not present an impenetrable bar to relief from a sentence from which he can never have an opportunity to demonstrate his rehabilitation and rejoin society. Matthews acknowledges that existing law does not support his position, but argues in view of the "evolving standards of decency that mark the progress of a maturing society" (Roper v. Simmons (2005) 543 U.S. 551, 561 (Roper)), the imposition of a life sentence without parole on a young adult absent any individualized consideration of his or her adolescent age patterns categorically violates the Eighth Amendment's prohibition against cruel and unusual punishments.
The People maintain the United States Supreme Court and the California Supreme Court have consistently held that heightened scrutiny of life sentences is available only to defendants who are under the age of 18 at the time the offense was committed.
2. Relevant Legal Principles and Standard of Review
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." (U.S. Const., 8th Amend.; Kennedy v. Louisiana (2008) 554 U.S. 407, 419.) The protection against cruel and unusual punishments stems from the fundamental concept that punishment "should be graduated and proportioned" to the crime. (Weems v. United States (1910) 217 U.S. 349, 366-367.) The standard is determined by reference to currently prevailing norms and " 'draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.' " (Kennedy v. Louisiana, supra, at p. 419.) Cruel and unusual punishment is also prohibited by article I, section 17 of the California Constitution. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358 [punishment is cruel and unusual if it is so disproportionate to the crime committed it shocks the conscience and offends fundamental notions of human dignity].)
In 2005, the United States Supreme Court held that imposing the death penalty on juveniles violates the Eighth Amendment. (Roper, supra, 543 U.S. at p. 575.) Five years later, the court ruled the imposition of a life sentence without the possibility of parole on juveniles for nonhomicide offenses violates the Eighth Amendment. (Graham v. Florida (2010) 560 U.S. 48, 74 (Graham); accord, People v. Caballero (2012) 55 Cal.4th 262, 268.) Roper and Graham recognize that " 'children are constitutionally different from adults for purposes of sentencing' " because they have " 'diminished culpability and greater prospects for reform.' " (Montgomery v. Louisiana (2016) ___ U.S. ___ [136 S.Ct. 718, 733] (Montgomery).)
Relying on this principle, the court in Miller v. Alabama (2012) 567 U.S. 460 (Miller), held that a juvenile convicted of a homicide offense could not be sentenced to life in prison without the possibility of parole absent consideration of the juvenile's special circumstances. Miller requires courts to consider "a juvenile offender's youth and attendant characteristics" to determine whether the sentence is proportionate. (Montgomery, supra, ___ U.S. ___ ; accord, People v. Gutierrez (2014) 58 Cal.4th 1354, 1390 [sentencing court must consider all relevant evidence about the defendant's "distinctive attributes of youth"].)
This constitutional rule has not been applied to nonjuvenile offenders. For persons ages 18 years and older, the penalty for a defendant found guilty of murder in the first degree is death or imprisonment for life without the possibility of parole. (§ 190.2.) Here, the jury found the defendants willfully, deliberately and with premeditation killed the victim while they were active participants in a criminal street gang, and the murder was carried out to further the activities of the criminal street gang. (§ 190.2, subd. (22).) The jury's findings elevated the second degree murder charges to murder in the first degree, with a mandatory sentence of life without the possibility of parole.
3. The Protections Afforded Juvenile Offenders Do Not Apply to Matthews
Relying on Roper, Graham, Miller, Montgomery and Gutierrez, Matthews, who was 21 years old when he shot and killed Richard Carrillo, asks this court to extend the constitutional protections afforded to juvenile offenders to all youthful offenders. Matthews acknowledges that our colleagues in the Second District have rejected similar claims. (People v. Argeta (2012) 210 Cal.App.4th 1478 (Argeta); People v. Abundio (2013) 221 Cal.App.4th 1211 (Abundio).) A division of this court, relying on Argeta, has also rejected a similar argument. (People v. Perez (2016) 3 Cal.App.5th 612 (Perez).)
We, too, conclude that the reasoning in Argeta is persuasive and adopt it here. The Argeta court stated: "These arguments regarding sentencing have been made in the past, and while '[d]rawing the line at 18 years of age is subject . . . to the objections always raised against categorical rules . . . [, it] is the point where society draws the line for many purposes between childhood and adulthood.' (Roper[, supra,] 543 U.S. at p. 554 . . . ; see Graham, supra, 560 U.S. at p. ___ .) Making an exception for a defendant who committed a crime just five months past his 18th birthday opens the door for the next defendant who is only six months into adulthood. Such arguments would have no logical end, and so a line must be drawn at some point. We respect the line our society has drawn and which the United States Supreme Court has relied on for sentencing purposes, and conclude [defendant's] sentence is not cruel and/or unusual under Graham, Miller, or Caballero." (Argeta, supra, 210 Cal.App.4th at p. 1482; see also Abundio, supra, 221 Cal.App.4th at pp. 1220-1221; Perez, supra, 3 Cal.App.5th at p. 617.)
Because Matthews was not a juvenile at the time of the offenses, Roper, Graham, Miller, Montgomery and Gutierrez are not applicable. We cannot conclude, based on the references to studies and law review articles that Matthews cites, "the bright line of 18 years old in the criminal sentencing context is unconstitutional. Our nation's, and our state's, highest court have concluded 18 years old is the bright-line rule and we are bound by their holdings. (People v. Bradley (1969) 1 Cal.3d 80, 86 [Courts of Appeal bound by Supreme Court of United States on federal law matters]; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [Courts of Appeal bound by Supreme Court precedent].)" (Perez, supra, 3 Cal.App.5th at p. 617.)
In rejecting defendants' argument their life sentences without the possibility of parole violated the Eighth Amendment, the court said it was not cruel and unusual punishment for the defendants to lose their freedom for taking the life of an innocent child. The record shows that Matthews, along with his codefendants, planned and carried out an unprovoked attack on a group of children because they did not want members of another gang to wear Blue Jays baseball caps. The court found that spending a lifetime in prison was a proportionate sentence for taking the life of a 14-year-old child. We agree. The imposition of a sentence of life without the possibility of parole on a young adult who has committed first degree murder does not violate constitutional principles.
B
Firearm Enhancement
Prior to the enactment of Senate Bill No. 620, sections 12022.5, subdivision (c) and 12022.53, subdivision (h) precluded the superior court from striking the firearm enhancements contained in those statutes. The new legislation, which took effect on January 1, 2018, gives the sentencing court discretion to strike sections 12022.5 and 12022.53 firearm enhancements pursuant to section 1385. Senate Bill No. 620 deletes the prohibition on striking the enhancements and substitutes the following language: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, §§ 1-2.)
Burquez, joined by Celaya, asserts that because their judgments are not yet final, the new law should be applied retroactively to this case under In re Estrada (1965) 63 Cal.2d 740, In re Griffin (1965) 63 Cal.2d 757 and People v. Francis (1969) 71 Cal.2d 66. Estrada recognized the general rule that changes in the law apply prospectively unless expressly made retroactive (see § 3), but created an exception for cases not yet final when a new law that mitigates punishment for a specific criminal offense takes effect. The statute at issue in Estrada reduced the maximum prison term for the specific crime to which the defendant had pleaded guilty. (Estrada, at pp. 743-744; Griffin, at p. 759 [Estrada applies where there is only the mere possibility of a reduced sentence]; Francis, at p. 76 [Estrada applies to a change in the law giving the trial court discretion to sentence the defendant to a misdemeanor rather than a felony].) In view of the retroactive application of amended section 12022.53, subdivision (h), Burquez and Celaya contend their cases must be remanded to the trial court for resentencing.
Although Matthews does not join in the sentencing argument Burquez and Celaya raised in supplemental briefing, our analysis applies to his case as well as to those of his codefendants.
The People concede that Estrada's rule of retroactive application to nonfinal judgments should be applied in this case but assert remand is not required because the record clearly shows that the trial court would not have exercised its discretion to lessen the sentence. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez).)
In view of the California Supreme Court's holdings in Estrada, Francis and, most recently, People v. Superior Court (Lara) (2018) 4 Cal.5th 299, in which the court applied Estrada to Proposition 57 to ameliorate possible punishment for juvenile offenders, we agree Senate Bill No. 620 applies to this case. We also agree that in view of the facts of the crime and the trial court's remarks at sentencing, "no purpose would be served" by remand. (Gutierrez, supra, 48 Cal.App.4th at p. 1896; People v. Almanza (Mar. 15, 2018, B270903) ___ Cal.App.5th ___ ; People v. Leavel (2012) 203 Cal.App.4th 823, 838 (Leavel).)
Here, the trial court found that the defendants planned to shoot to kill members of the J Block gang for wearing Blue Jays baseball caps. They organized an attack on a group of unidentified persons, including children, by firing randomly into the group, killing a child. An 11-year-old child had to shield a five-year-old child from defendants' bullets. The court observed that defendants' willingness "to take a firearm and shoot randomly [at] a group of people that you have not even clearly identified, for the purposes for which you folks were shooting at them, and that was, as far as the Court understands, a dispute over a cap . . . . I don't understand it. And I would hope that I never come to understand . . . how a 14-year-old kid can be caught up in gang crossfire over a cap." Richard Carrillo was an innocent bystander. The court said this was "[e]very parent's nightmare when their children go out of their homes into their communities, just to explore life, enjoy life, that something will happen, and they will not come back home."
In imposing sentences of 25 years to life for the firearm offense under sections 12022.53 and 12022.5, and life without the possibility of parole for murder, the court said the law exacts punishment for crimes, and was applicable to the defendants. The court acknowledged the defendants were remorseful "[b]ut that cannot undo what has been done. That does not bring this young man back, and the law has consequences for that conduct." In view of the court's comments when imposing the sentences and the facts of the case, we conclude that remand is not necessary. (Gutierrez, supra, 48 Cal.App.4th at p. 1896; Leavel, supra, 203 Cal.App.4th at p. 838.)
C
The Abstract of Judgment Must Be Corrected to Show Joint and Several Liability
At sentencing, the trial court ordered Burquez, Matthews, Celaya, Basoco and Lopez to pay, jointly and severally, direct victim restitution in the amount of $5,486. (§ 1202.4, subd. (f).) Defendants state the orders for joint and several victim restitution are not accurately reflected in the abstracts of judgment for Burquez, Matthews and Celaya. The People concede error, and we agree. We shall therefore order the abstracts of judgment to be amended to reflect the trial court's oral pronouncement for joint and several liability. (People v. Jessee (2013) 222 Cal.App.4th 501, 510; People v. Neely (2009) 176 Cal.App.4th 787, 800.)
D
The Parole Revocation Fine Was Erroneously Imposed
The trial court sentenced the defendants to life imprisonment without the possibility of parole. Burquez and Matthews claim that because their sentences did not include a period of parole, the court erred in imposing and then staying a $10,000 parole revocation restitution fine pursuant to section 1202.45. They are correct. "When there is no parole eligibility, the fine is clearly not applicable." (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1184.) The People concede the point, and indicate it also applies to Celaya. We shall therefore order the fines imposed under section 1202.45 to be stricken and the judgments modified to so reflect. (People v. McWhorter (2009) 47 Cal.4th 318, 380.)
DISPOSITION
The trial court is ordered to strike the fines imposed under section 1202.45 and to amend the abstracts of judgment to reflect defendants' joint and several liability for victim restitution and forward copies to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
HALLER, Acting P. J. WE CONCUR: AARON, J. GUERRERO, J.