Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. BA286196, BA322888, William C. Ryan, Judge.
Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Appellant Jamar Golson, a minor at the time of the offense, was charged with one count of murder in the first degree (Pen. Code, § 187, subd. (a)), one count of robbery (§ 211), and one count of attempted murder (§§ 187, subd. (a) & 664), with the special circumstance allegation that he committed the murder while engaged in a robbery (§ 190.2, subd. (a)(17)(A)), three gun use allegations (§ 12022.53), and a criminal street gang allegation (186.22, subd. (b)(1)(B)). A jury convicted Appellant of first degree murder, finding true the allegation that the murder was committed during the commission of robbery, and convicted him of second degree robbery, but the jury was unable to reach a verdict as to the attempted murder count. The jury found true the criminal street gang allegation and the allegation that a handgun was used, but it did not find true the allegation that the gun was intentionally discharged. Because of Appellant’s age, the court sentenced him on the murder count to a term of 25 years to life, plus a consecutive term of 10 years for the use of a firearm allegation. (See Pen. Code, § 190.5, subd. (b) [the court has discretion to sentence a defendant between 16 and 18 years of age convicted of certain first degree murders to 25 years to life].) As to the robbery count, the court imposed sentence but stayed the sentence pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise specified.
Appellant challenges his conviction on three grounds. First, he argues that his confession was inadmissible because it was obtained in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and, second, that prosecution of a minor under the felony-murder rule violates due process of law. Finally, he contends that his sentence violates the Eighth Amendment’s proscription against cruel and unusual punishment and the California Constitution’s against cruel or unusual punishment. We will affirm.
BACKGROUND
In June 2005, Oscar Orellana parked his car near his home in Los Angeles and started walking toward his house, carrying a Bible and talking on his cell phone. As he approached his house, Appellant and Michael Eldridge walked toward him and tried to grab him. Orellana threw his Bible and cell phone and tried to run away, but he tripped and fell. Appellant picked up the cell phone.
This account of the facts is taken from Orellana’s testimony during Appellant’s trial.
After Orellana fell, Appellant and Eldridge started to hit him, and Appellant was asking Orellana for money. Eldridge picked Orellana up from the ground and stood behind Orellana while Appellant put his hand in Orellana’s pocket, removing Orellana’s keys and wallet. Appellant asked Orellana where his money was, and Orellana responded that he did not have any money. Appellant continued to ask Orellana for money, but Orellana told him that he did not have any.
Orellana saw a gun in Appellant’s hand, pointed toward Orellana’s stomach. While Eldridge held Orell`ana’s right arm, Orellana used his left arm to try to wrest the gun from Appellant. Orellana let go of the gun. Eldridge then grabbed Orellana from behind in a “bear hug,” wrapping his arms around Orellana, while Appellant stood in front of Orellana with the gun and continued to ask Orellana for money. Orellana then saw “a flame on [his] right side close to [his] face” and heard a blast. When he felt Eldridge let go of him, Orellana ran across the street and called the police. When Orellana looked back, he saw “another person taking photographs,” Eldridge on the ground, and Appellant putting his hands on Eldridge’s throat.
When the police arrived, Orellana identified Appellant and Eldridge as the men who had attacked him. Orellana felt pain in his right shoulder, but he did not realize that he had been shot there until paramedics showed him a mirror. Eldridge was killed by a gunshot wound to his neck.
Christopher Marasek was in his home on the night of the incident, when he heard a loud bang around 10:30 p.m. He looked out his living room window and did not see anything, so he went outside to see if anything was wrong. Although he did not see anything, he heard a man yelling for help. He crossed the street and peered around a van and saw Eldridge lying on the sidewalk and Appellant holding Eldridge’s head. Marasek noticed that Appellant was yelling to a woman who was sitting in the driver’s seat of a car that was parked approximately 25 feet away. The woman, later identified as Stephanie Perkins, was looking over her shoulder at the two people on the sidewalk. She started backing up the car, and then she drove forward slowly and turned the corner.
Marasek yelled the license plate number to his wife, then ran into his house to get his camera. Marasek then went back outside and took a picture of the two men on the sidewalk, keeping himself hidden behind the van. Appellant lunged at Marasek when he saw him take the picture. Marasek spoke with a 911 dispatcher about what he had seen. Marasek also saw another car drive down the street.
After the police arrived, Marasek waved them over to the people on the sidewalk. Marasek saw what appeared to be a bullet wound in Eldridge’s neck.
Officer Chilingarian was one of the officers who responded to the shooting. He testified that, when he responded to the shooting, he saw a woman walking down the street who fit the description of someone who might have been involved in the incident. He stated that she looked over her shoulder, saw the police car, and quickly walked out of view behind a construction trailer. As she emerged from behind the trailer, she stated, “I had nothing to do with it,” and she asked, “Is that Mexican guy dead?” Chilingarian ordered her to the ground, waited for backup, and handcuffed her. After other officers arrived, they checked the area and found a gun partially hidden under the trailer; they took the gun into evidence. Officers found a spent casing inside the gun, meaning that a round had been fired.
Appellant’s fingerprints were found on a CD case that was inside the car being driven by Perkins. Eldridge’s prints were found on the outside and the inside of the car.
Martha Reyes was riding in a car being driven by her husband in the area of the shooting, around 10:45 that same night. Reyes saw a woman walking down the street, looking a little nervous. Reyes asked her if something was wrong; the woman said no and continued walking.
Reyes and her husband were looking for a parking space, so they turned around and circled back. Because the police closed the street, Reyes’ husband stopped the car, and they got out of their car. Reyes told the police about the woman she had seen walking up the street. The police then took Reyes to identify a woman they had detained, and Reyes told them that she was the person that she had seen.
Appellant was arrested and taken to the police station. Officers found a cell phone, later determined to be Orellana’s cell phone, in Appellant’s pockets. As the officers collected Appellant’s clothing, Appellant “had like a blank stare on his face and just walking [sic] back and forth just saying, ‘I just wanted to make a little money. I just wanted to make a little money.’” No one was questioning Appellant; instead, he seemed to be saying it repeatedly to himself.
Orellana was interviewed by Detective Gevork Shamlyan at the police station around 1:00 in the morning. The transcript of this interview indicated that it was unclear whether Appellant was pointing the gun at Orellana or holding it down by his side. It further indicated that Orellana thought that the gun might have gone off during the struggle for the gun, rather than after he had let go of the gun, although it was not clear.
During the interview, Shamlyan noted that Orellana’s pant leg was torn and that he had an abrasion on his knee. Shamlyan showed Orellana the cell phone that was found in Appellant’s pocket, and Orellana identified it as his own. Shamlyan asked Orellana the phone number, and when Shamlyan dialed the number, the phone started to ring. Shamlyan returned the phone to Orellana.
Appellant was interviewed by Shamlyan at the police station at 4:45 in the morning. Appellant was 16 years old at the time of the interview. Appellant spoke to his mother before the interview, around 4:10 in the morning.
Shamlyan started the interview by saying, “I’m going to read you these rights, okay, what you have?” He told Appellant to let him know if he had any questions or did not understand anything. Shamlyan explained Appellant’s Miranda rights to him and ensured that Appellant understood what an attorney is. Shamlyan then asked Appellant, “Do you want to talk to me about what happened last night?” Appellant’s reply was inaudible, but when Shamlyan stated, “Excuse me,” Appellant replied as follows:
“All I remember (inaudible) walking [sic] down the street and (inaudible) and I’m not going to lie to you, man, I see somebody walking down the street and then, you know, I asked him what time it was, and then he looked at me and then I tried to go into his pockets or whatever and then he started running and then, you know, I was trying to hurry up, you know, at least get a dollar or some. I wasn’t hitting him or nothing, though, then he starts swinging and then my boy, like, he didn’t really want to do it, like, he’s like ‘nah man, don’t do that cause then you’re going be caught up,’ in some stupid shit like that.
“So, then he seen me like trying to fight with the dude, so he was trying to push the dude off of me, like, you know, and then all of a sudden I seen some shots coming from the back of me, this way. While my boy, he was trying to push me back and I was hearing some shots and looked up. And then I looked at my boy and he’s like ‘I’m shot,’... And I took off my shirt. I wrapped it around his neck... It was a phone on the floor that was the Hispanic guy’s, so I picked it up but it was so much blood. I just put it in my pocket....”
Shamlyan then asked Appellant if he wanted to talk, and Appellant admitted that he tried to “take some money.” Appellant told Shamlyan that Eldridge was not the one who wanted to rob Orellana. Shamlyan asked Appellant if he belonged to a gang, and Appellant stated that he used to belong to “Five Deuce Hoover.”
Shamlyan asked how Appellant and Eldridge, known as Kiki to Appellant, got to the area, and Appellant told him that they had taken the bus. Appellant stated that Eldridge had asked him to go with him to pick up money from someone. Shamlyan subsequently told Appellant that he knew that Appellant was not being honest because the police had found the car Appellant and Eldridge had been in. Shamlyan asked Appellant if the car was “her car” and told Appellant that “she’s here too and she’s talking.” Appellant stated that he did not know whose car it was and that he did not want to answer the question.
Shamlyan stopped questioning Appellant when Appellant stated that he did not want to answer any more questions without a lawyer. Appellant subsequently told Shamlyan that he wanted to speak with him again, but Shamlyan explained that they could not speak because of Appellant’s invocation of his right to a lawyer. Appellant acknowledged this, but he wanted to speak with Shamlyan anyway. The second interview was not introduced at trial.
Appellant and Perkins were charged by information with murder, second degree robbery, and attempted murder. Appellant entered not guilty pleas. Appellant’s case was severed from Perkins’ case for trial.
During Appellant’s trial, defense counsel moved to suppress the statement that Appellant made to Shamlyan in the police station on the basis that, given Appellant’s age at the time, the statement was not voluntary. Defense counsel argued that different considerations arise when determining the voluntariness of a statement made by a juvenile. He pointed out that the interview took place around 4:00 in the morning, raising a concern regarding “sleep deprivation,” and that photos of Appellant showed that he was “extremely fatigued” at the time.
The trial court found that Appellant’s statement was voluntary. The court stated that Appellant “certainly knows his rights to an attorney and his rights,” reasoning that, at the time of the interview, Appellant was “six weeks away from his 17th birthday and has previously been through the criminal justice system.” The court further pointed out that Shamlyan explained the rights to Appellant and asked follow-up questions to be sure that Appellant understood.
In addition, the court noted that Shamlyan asked Appellant preliminary questions, such as his age, his address, and his parents’ names and occupations, that helped Shamlyan determine Appellant’s levels of fatigue, sobriety, and intelligence. The court relied on the transcript of the interview to conclude that Appellant gave appropriate answers to the questions, further indicating Appellant’s understanding of his rights.
Finally, the court found that “[t]he environment seems to be as noncoercive as a police interrogation can be,” reasoning that it was “one-on-one,” there were no threats, and Appellant had the opportunity to rest and use the restroom prior to the interview. Although Appellant was upset when he first was brought in, “that does not necessarily make the interrogation involuntary or the statement involuntary.” The court thus found that the totality of the circumstances indicated that the interview was not coercive and the statement was voluntary. Accordingly, the tape of the interview was played for the jury, and the transcript was introduced into evidence.
The interview had been redacted to remove statements regarding prior conduct by Appellant.
Appellant testified at trial in his defense that, on the day of the shooting, he and Eldridge went in a car being driven by Eldridge to pick up Perkins, who was a friend of Eldridge. Eldridge told Appellant that he needed to get some money, but Appellant did not understand what Eldridge meant. Eldridge stopped the car, told Appellant to get out with him, and told Perkins to park the car. As Eldridge and Appellant walked down the street, Eldridge pulled out his gun and told Appellant to hold it for him. Appellant waited while Eldridge went into a house, then they returned to the car, and Perkins drove, until Eldridge and Appellant again got out of the car.
Appellant stated that he saw Orellana walking toward them and that Eldridge attempted unsuccessfully to grab Orellana. Orellana ran away, fell down, and was picked up by Eldridge. Eldridge asked Appellant if he still had the gun and told Appellant to pull the gun out. Appellant took out the gun, holding it down by his left side. Eldridge went through Orellana’s pockets, removing Orellana’s wallet and handing it to Appellant, who put the wallet in his pocket.
While Appellant was looking away from Orellana to put the wallet in his pocket, he felt Orellana try to take the gun from him. Appellant pulled the gun away from Orellana, Eldridge grabbed Orellana from behind, and then the gun went off. Appellant testified that he did not intentionally fire the gun, that he had never fired a gun before, and that he did not intend to shoot Orellana. He stated that Orellana and Eldridge fell to the ground, and Orellana got up and started to run. Appellant went to help Eldridge, who told him that he had been shot and told Appellant to tell Perkins to back up the car. Appellant yelled at Perkins to back up the car and to get help for Eldridge. Perkins drove off, and Appellant tried to help Eldridge by pushing on the wound.
Appellant testified that he was not honest in his interview with Shamlyan because he was scared, and that it was not true that, following his arrest, he was repeating the words, “‘All I wanted was money.’” On cross-examination, the prosecutor played Appellant’s confession and asked Appellant, “Nobody forced you to say these words; true?” Appellant replied, “No.” The prosecutor then asked, “We heard you giving your rights that you didn’t want to talk to the police at all [sic]. You could have remained silent; true?” Appellant replied, “Correct. True.” The prosecutor later asked Appellant, “You, in fact, talked to your mother on the phone before the detective interviewed you; is that true?” Appellant replied, “I don’t remember. I can’t recall.”
After several days of deliberations, the jury was unable to reach a verdict as to Count 3, the attempted murder of Orellana, and several of the special allegations as to the first two counts. The court accordingly declared a mistrial as to Count 3 and the special allegations upon which the jury could not reach agreement. The jury found Appellant guilty of first degree murder of Eldridge (§ 187, subd. (a)) and found true the allegations that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(B)), that a principal personally used a firearm in the commission of the offense (§ 12022.53, subds. (b) & (e)(1)), and that the offense was committed while Appellant was engaged in robbery (§ 190.2, subd. (a)(17)(A)). The jury also found Appellant guilty of second degree robbery (§ 211) and found true the allegations that the offense was committed for the benefit of a criminal street gang (§186.22, subd. (b)(1)(B)) and that a principal personally used a firearm in the commission of the offense (§ 12022.53, subds. (b) & (e)(1)). The jury did not find true the allegations that Appellant personally and intentionally discharged a firearm while committing the offenses.
The trial court sentenced Appellant to an indeterminate term of 25 years to life on count one, the murder charge (§ 190.5, subd. (b)). The court exercised its discretion pursuant to section 190.5, subdivision (b), in favor of the possibility of parole because of Appellant’s age at the time of the offense, the possibility that the shooting was unintentional, Appellant’s minimal criminal history, Appellant’s aid to Eldridge and his remaining with Eldridge until authorities arrived, and Eldridge’s family’s request for leniency. The court imposed an additional consecutive determinate term of 10 years for the use of a handgun during the murder. As for the street gang allegation, the court reasoned that section 186.22, subdivision (b)(5), operated to make the minimum term for count 1 at least 15 years. Because the minimum term was already 25 years, the court stated that “the requirements of section 186.22(b)(5) have been complied with and no additional term need be imposed.
Section 190.5, subdivision (b), provides that “[t]he penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.”
As to count two, the robbery charge, the court imposed a term of three years (§ 213, subd. (a)(2)), along with additional consecutive terms of 10 years each for the street gang allegation and the use of a firearm allegation, for an aggregate term of 23 years. The court stayed the sentence pursuant to section 654, subdivision (a), but found in the alternative that if section 654, subdivision (a) did not apply, the sentence for count two would run concurrently with that of count one. Appellant timely appealed.
Section 654, subdivision (a) provides that “[a]n 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.”
DISCUSSION
Appellant challenges his conviction on two grounds: (1) his statement to the police should have been excluded as involuntary because it was obtained in violation of his Miranda rights; and (2) his murder conviction should be reversed because the prosecution of a minor under the felony-murder rule violates due process. Appellant also challenges his sentence on the ground that the sentence constitutes cruel and/or unusual punishment under the California and the United States Constitutions.
I. Admission of Confession
“[A]ny statement obtained from a criminal suspect by a law enforcement officer during custodial interrogation is potentially involuntary because such questioning may be coercive....” (People v. Neal (2003) 31 Cal.4th 63, 79.) Thus, in Miranda, “the United States Supreme Court laid down its now familiar rule,” (ibid.) that “‘a suspect [may] not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel.’ [Citations.]” (People v. Dykes (2009) 46 Cal.4th 731, 751.)
“The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant’s involuntary confession.” (People v. Massie (1998) 19 Cal.4th 550, 576.) The burden is on the prosecution to establish by a preponderance of the evidence that a defendant’s confession was voluntary. (Ibid.)
On appeal, “‘the trial court’s findings as to the circumstances surrounding the confession,’” its resolution of disputed facts and inferences, and its credibility determinations are upheld if supported by substantial evidence. (People v. Holloway (2004) 33 Cal.4th 96, 114; People v. Dykes, supra, 46 Cal.4th at p. 751.) However, “‘the trial court’s finding as to the voluntariness of the confession is subject to independent review. [Citations.] In determining whether a confession was voluntary, “[t]he question is whether defendant’s choice to confess was not ‘essentially free’ because his will was overborne.”’ [Citation.]” (People v. Holloway, supra, 33 Cal.4th at p. 114.)
“[T]he determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel.” (Fare v. Michael C. (1979) 442 U.S. 707, 724-725 (Fare).) The factors to be considered include the element of police coercion, the length and location of the interrogation, and the defendant’s maturity, education, physical condition, and mental health. (People v. Massie, supra, 19 Cal.4th at p. 576.)
In Fare, the United States Supreme Court addressed whether a juvenile’s request to speak to his probation officer constituted an invocation of his right to counsel pursuant to Miranda. The Court held that the juvenile’s request did not constitute an invocation of his right to counsel and that it was therefore error to suppress the statements he made after his request. (Fare, supra, 442 U.S. at p. 724.) The Court stated that the totality-of-the-circumstances approach to determining voluntariness applied “even where interrogation of juveniles is involved,” reasoning that “[t]he totality approach... mandates... inquiry into all the circumstances surrounding the interrogation,” such as “the juvenile’s age, experience, education, background, and intelligence....” (Id. at p. 725.)
Appellant raises four circumstances that he contends rendered his statement involuntary. First, he contends that his waiver of his rights was ambiguous because, when Shamlyan asked him if he wanted to talk about what happened, Appellant’s response was inaudible. Second, Appellant contends that his statement was involuntary because the interrogation took place at 5:00 a.m., and he was tired, he had been kept for four hours in “the holding tank,” where there was no bed or toilet, and there was no evidence that he had been given any food. Third, Appellant states that he was 16 years and 10 months old at the time of the interview and that, although he had had prior experience with the criminal justice system, it was not extensive. Appellant’s final contention is that his request to speak with his mother should have been construed as an invocation of his right to counsel.
Shamlyan explained Appellant’s Miranda rights to him as follows:
The “Q,” indicates Shamlyan’s question, and “A” stands for Appellant’s answer.
“[Q]: I’m going to, I’m going to tell you, I’m going to give you these rights, then ask you if you understand them. So you need to say yes, or no. All right. You understand? You understand, then you’re going to say yes. Okay. Okay. You have a right to remain silent. Do you understand?
“[A]: Yes.
“[Q]: Okay. Anything you say may be used against you in court. Do you understand?
“[A]: Yes.
“[Q]: Okay. You have a right to the presence of an attorney before and during any questioning. Do you understand?
“[A]: Yes.
“[Q]: Do you know what an attorney is?
“[A]: Yes.
“[Q]: Okay. If you cannot afford an attorney one will be appointed for you free of charge before any question if you want. Do you understand?
“[A]: Yeah.
“[Q]: Okay. So you know what an attorney is, he’s a lawyer, right?
“[A]: (Inaudible)
“[Q]: Exactly. Alright. Do you want to talk to me about what happened last night?
“[A]: (Inaudible)
“[Q]: Excuse me.”
Appellant then began the narrative set forth at page 6 above. Following this narrative, Shamlyan asked, “Alright so, basically, you want to talk to me?” Appellant replied, “Yeah, I admit that I, you know,... attempted to... try and take some money but – ”
Although Appellant’s response to Shamlyan’s question of whether he wanted to talk about the incident was inaudible, the record reveals that Appellant indicated his understanding of his Miranda rights and nonetheless chose to talk with Shamlyan about “what happened.” “Once a suspect receives Miranda warnings, he ‘is free to exercise his own volition in deciding whether or not to make a statement to the authorities.’ [Citation.]” (People v. Simons (2007) 155 Cal.App.4th 948, 954.) Moreover, “‘[f]aced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda [citation], either to ask clarifying questions or to cease questioning altogether.’” (People v. Rundle (2008) 43 Cal.4th 76, 115, disapproved on other ground by People v. Doolin (2009) 45 Cal.4th 390, 416, 421 fn. 22.) Rather, in order to assert the right to counsel or the right to remain silent, a suspect must unambiguously invoke his right. (See People v. Stitely (2005) 35 Cal.4th 514, 535; People v. Simons, supra,155 Cal.App.4th at p. 957.)
Here, Appellant responded that he understood each right that Shamlyan explained to him. Although his response when Shamlyan asked if he wanted to talk about the incident was inaudible, he already had expressed his understanding of his rights and chose to talk about the incident anyway. Appellant did not make any request for counsel, ambiguous or unambiguous, and he gave no indication that he wished to remain silent. (See People v. Davis (1981) 29 Cal.3d 814, 824 (“[D]efendant’s failure to respond when asked if he would speak to the polygraph administrator does not appear from the circumstances to have been a general assertion of his right to remain silent.”].) “The absence of an express waiver does not in itself establish that the right [to remain silent] has been invoked.” (Ibid.) Appellant’s “inaudible” response to whether he wanted to speak accordingly did not render his statement involuntary.
As to Appellant’s second and third contentions, it is true that he was 16 years old and that the interrogation occurred around 5:00 a.m. According to Shamlyan, there was no restroom in the holding tank where Appellant was detained prior to the interrogation, but, if someone knocked on the door and asked to use the restroom, they were to be allowed to do so. Shamlyan further testified that there was a bench to lie down on and that he did not know whether Appellant had received anything to eat. There is no evidence regarding whether Appellant slept or ate prior to the interrogation.
In People v. Salcido (2008) 44 Cal.4th 93, the court rejected the defendant’s argument that circumstances such as “lengthy confinement in a small aircraft, lack of sleep, water, and access to a telephone, his inability to communicate effectively in English, and [the detective’s] assertedly coercive questioning tactics” rendered his confession involuntary. (Id. at p. 129.) The court concluded that the circumstances did not indicate that his will had been overborne, reasoning that his “spontaneous initial admission of guilt..., the absence of physical signs or other evidence that defendant had been mistreated prior to or during his transfer to American officials, together with the recording of the Miranda advisements, defendant’s explicit waiver of his rights, and his subsequent lengthy and detailed narrative of the circumstances of the crimes are simply inconsistent with involuntary conduct on his part.” (Id. at pp. 129-130.)
By contrast, in People v. Neal, supra, 31 Cal.4th 63, the 18-year-old defendant did not have extensive experience with legal matters, failed to graduate from high school, and had “quite low” intelligence. (Id. at p. 84.) In addition to these circumstances, there was evidence that, after his arrest, he “was placed in a cell without a toilet or a sink, he did not have access to counsel or to any other noncustodial personnel, he was not taken to a bathroom or given any water until the next morning, and he was not provided any food until some time following the third interview, after more than 24 hours in custody and more than 36 hours since his last meal.” (Ibid.) More importantly, he asked to speak with a lawyer, but the detective refused. The court concluded that the totality of the circumstances indicated that the confessions were involuntary. (Id. at p. 85.)
Similar to the defendant in People v. Neal, Appellant was young and did not graduate from high school. However, unlike People v. Neal, there are no other circumstances that indicate that Appellant’s will was overborne. Rather, as in People v. Salcido, there was no evidence here that Appellant had been mistreated or that he had been deprived of sleep, food, or water. Also similar to People v. Salcido, Appellant acknowledged that he understood his rights, and he then went on to give a “lengthy and detailed narrative” regarding the circumstances surrounding the shooting. (People v. Salcido, supra, 44 Cal.4th at p. 130.)
During Appellant’s trial, he never testified that he was subjected to any circumstances that would have rendered his interrogation coercive. To the contrary, under cross-examination, Appellant conceded that no one forced him to talk to Shamlyan. He also agreed that he could have remained silent after receiving his rights. Thus, as in People v. Salcido, the circumstances here do not indicate that Appellant’s will was overborne. (See People v. Salcido, supra, 44 Cal.4th at pp. 129-130.)
Finally, Appellant contends that his request to speak with his mother should have been construed as an invocation to his right to counsel. We conclude, however, that there is no evidence in the record that Appellant asked to speak with his mother. A juvenile arrest report indicated that, at 4:10 a.m., before the interrogation, Appellant’s mother was contacted, and Appellant was allowed to speak with her; however, Appellant testified that he did not remember whether or not he spoke with her. Shamlyan testified that he did not know whether Appellant spoke to his mother pursuant to a request by Appellant or pursuant to police department policy. However, Shamlyan did state that Appellant never asked Shamlyan for the opportunity to speak with his mother. There is no evidence that Appellant asked any other officer for the opportunity to speak with his mother.
Thus, the only evidence that was presented indicated that, although Appellant might have spoken with his mother pursuant to police department policy, Appellant did not ask to speak with her. Under these circumstances, the trial court’s determination that the confession was voluntary is not erroneous.
Examining the circumstances surrounding the interrogation, we conclude that the confession was voluntary. Appellant’s acknowledgement that he understood his Miranda rights, followed by his spontaneous narrative regarding the shooting, and the lack of evidence that he was mistreated or coerced indicate that Appellant’s will was not overborne. The trial court’s finding that the confession was voluntary accordingly is affirmed.
II. Felony-Murder Rule
Appellant challenges his conviction on the basis that the prosecution of a minor under the felony-murder rule violates due process of law. He relies on Roper v. Simmons (2005) 543 U.S. 551 (Roper), in which the United States Supreme Court held that the imposition of the death penalty on juvenile offenders under the age of 18 violated the Eighth Amendment. The Court in Roper thoroughly discussed the differences between juvenile and adult offenders in explaining why the death penalty could not be imposed on juvenile offenders. (Id. at pp. 568-574.) For example, the Court pointed out that the young are more likely to have a “‘lack of maturity and an underdeveloped sense of responsibility’” than adults, and that “juveniles are more vulnerable or susceptible to negative influences and outside pressures.” (Id. at p. 569.) In addition, the Court pointed out that “the character of a juvenile is not as well formed as that of an adult.” (Id. at p. 570.) Appellant contends that the character traits of juvenile offenders discussed in Roper indicate that juveniles also should not be subject to the felony-murder rule.
Appellant also relies on People v. Dillon (1983) 34 Cal.3d 441 (Dillon), in which the California Supreme Court rejected the defendant’s request to abolish the felony-murder rule. The court stated that the rule “is a creature of statute,” and that the court lacked “the power to judicially abrogate a statute merely because it is unwise or outdated.” (Id. at p. 463.) The decision in Dillon indicates that, despite the court’s misgivings regarding the felony-murder rule, the court recognized that it had no power to abrogate it.
Moreover, Roper was concerned with the application of the death penalty to juveniles, not the felony-murder rule, which is, in California, “a creature of statute.” (Dillon, supra, 34 Cal.3d at p. 463.) Thus, even acknowledging the concerns raised by the Supreme Court in Roper regarding the differences between juveniles and adults, Appellant points to no reason that Roper should be applied here, and we decline to do so.
III. Sentence
Appellant contends that his sentence constitutes cruel and/or unusual punishment in violation of the California and United States Constitutions. He argued that he was 16 years old at the time of the crime; he had a minimal prior criminal record; the crimes were not “particularly egregious”; and the victim of the shooting was a participant in the robbery, not the robbery victim. We reject Appellant’s contention.
“Article I, section 17 of the California Constitution prohibits infliction of ‘[c]ruel or unusual punishment.’ A sentence may violate this prohibition if ‘“it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”’ [Citation.]” (People v. Em (2009) 171 Cal.App.4th 964, 972.) In determining whether a sentence violates the California Constitution, we use a three-pronged test: first, we consider “‘the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society’”; second, we “compare the punishment with punishments imposed by California law for more serious offenses”; third, we “compare the punishment imposed with punishments prescribed by other jurisdictions for the same offense.” (Ibid., quoting In re Lynch (1972) 8 Cal.3d 410.) “‘Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.’ [Citation.]” (Id. at p. 971.)
Appellant “must overcome a ‘considerable burden’ to show the sentence is disproportionate to his level of culpability. [Citation.] Therefore, ‘[f]indings of disproportionality have occurred with exquisite rarity in the case law.’ [Citation.]” (People v. Em, supra, 171 Cal.App.4th at p. 972; see also People v. Felix (2003) 108 Cal.App.4th 994, 1000 [“The reduction of a sentence because it is cruel or unusual ‘“must be viewed as representing an exception rather than a general rule.”’”].)
“There can be no dispute that murder is a serious crime, and that armed robbery and the use of a gun by a gang member in the commission of a crime present a significant degree of danger to society.” (People v. Em, supra, 171 Cal.App.4th at p. 972.) Furthermore, courts have held that “[l]ife sentences pass constitutional muster for those convicted of aiding and abetting murder, and for those guilty of felony murder who did not intend to kill. [Citations.]” (Id. at pp. 972-973.) The nature of the offense accordingly does not support Appellant’s position.
Appellant cites his youth in support of his contention. It is true that, “[w]hen considering whether a sentence is cruel or unusual punishment, the defendant’s age matters. [Citation.] It is also manifestly true, however, that murder matters. [Citations.]” (People v. Em, supra, 171 Cal.App.4th at p. 976.) Although Appellant was a youth at the time of the offense, he has not presented evidence, for example, that he “was an unusually immature youth” with “no prior trouble with the law.” (Dillon, supra, 34 Cal.3d at p. 488.) Appellant has failed to meet his “‘considerable burden’” of showing that his “sentence is disproportionate to his level of culpability.” (People v. Em, supra, 171 Cal.App.4th at p. 972.)
Unlike the California Constitution, which prohibits cruel or unusual punishment, the Eighth Amendment of the United States Constitution prohibits the imposition of cruel and unusual punishment. (U.S. Const., 8th Amend.; see People v. Carmony (2005) 127 Cal.App.4th 1066, 1085 [explaining that the distinction “is purposeful and substantive rather than merely semantic”]. The California Constitution accordingly “affords greater protection to criminal defendants by prohibiting cruel ‘or’ unusual punishment. [Citations.]” (People v. Haller, supra, 174 Cal.App.4th at p. 1092.) Because we conclude that Appellant’s sentence is not grossly disproportionate pursuant to the California Constitution, a fortiori, the sentence does not offend the federal constitution.
Moreover, the Supreme Court has rejected a claim that a sentence of 25 years to life for the offense of felony grand theft, imposed pursuant to the Three Strikes Law, violated the Eighth Amendment’s proscription against cruel and unusual punishment. (Ewing v. California (2003) 538 U.S. 11, 30-31.) The Supreme Court noted that, “‘[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.’” (Id. at p. 21.) In light of this holding, Appellant’s sentence for felony-murder does not violate the Eighth Amendment.
We reject Appellant’s challenge to his sentence and affirm.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., JOHNSON, J.