Filed 3/16/15


                     CERTIFIED FOR PARTIAL PUBLICATION*


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D064010

        Plaintiff and Respondent,

        v.                                         (Super. Ct. No. SCD234048)

SHAQUILLE KASIYA JORDAN et al.,

        Defendants and Appellants.


        APPEAL from a judgment of the Superior Court of San Diego County, Kerry

Wells, Judge. Affirmed as modified.



        Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and

Appellant Shaquille Kasiya Jordan.

        Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and

Appellant Seandell Lee Jones.



*      Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part II., sections A., B., D. and E.
       Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and

Appellant Rashon Jay Abernathy.

       Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff

and Respondent.

       Based on a robbery and killing that occurred on May 11, 2011, when each of the

defendants was 17 years old, Rashon Jay Abernathy, Seandell Lee Dupree Jones and

Shaquille Kasiya Jordan (collectively, defendants) were found guilty of first degree

murder (Pen. Code, §§ 187, subd. (a), 189);1 two counts of robbery (§ 211); shooting at

an occupied motor vehicle (§ 246); and unlawfully taking and driving a vehicle (Veh.

Code, § 10851, subd. (a)). Based on a different incident on May 5, 2011, the jury also

found Abernathy guilty of an additional count of robbery (§ 211). The jury made true

findings that Abernathy personally used a firearm during the robberies, the murder and

the shooting at an occupied vehicle. (§ 12022.53, subds. (b), (d).)

       The trial court sentenced Jones and Jordan to a prison term of 25 years to life and

sentenced Abernathy to a prison term of 50 years to life.

       On appeal, all three defendants contend that (1) the trial court prejudicially erred

in failing to instruct that, for the purposes of the felony-murder rule, the jury must find

that the target felony (robbery) ended at the point defendants reached a place of

temporary safety, known as "the escape rule"; (2) the sentences imposed by the trial court


1      Unless otherwise indicated, all further statutory references are to the Penal Code.

                                              2
are unconstitutional under either the federal or state Constitutions because they constitute

cruel and unusual punishment; and (3) at sentencing, the trial court incorrectly calculated

the defendants' presentence custody credits. Jones and Abernathy further contend

insufficient evidence supports their convictions for unlawfully taking or driving a vehicle,

and Jones contends the abstract of judgment does not accurately reflect that his five-year

sentence for shooting at an occupied vehicle in count 4 was stayed by the trial court

pursuant to section 654.

       We conclude that (1) although the trial court erred in failing to instruct with the

escape rule for felony murder, the error was not prejudicial; (2) sufficient evidence

supports Abernathy's and Jones's conviction for unlawfully taking or driving a vehicle;

(3) there is no merit to the defendants' contention that their sentences constitute cruel and

unusual punishment; (4) Abernathy's and Jordan's judgment should be modified to award

an additional day of presentence custody credit; and (5) a clerical error in Jones's abstract

of judgment must be corrected to reflect that the sentence on count 4 is stayed pursuant to

section 654. Accordingly, we modify the judgment as to Abernathy and Jordan to award

an additional day of presentence custody credit, and we order that the abstract of

judgment be corrected as to Jones to accurately reflect that his sentence on count 4 is

stayed. In all other respects, the judgments are affirmed.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

       In May 2011, Abernathy placed an advertisement on Craigslist claiming that he

had a MacBook Pro computer to sell for $900. After Abernathy communicated with a

                                              3
potential buyer, Erick Castillo, by exchanging text messages, Abernathy met with

Castillo at a recreation center on May 5, 2011. Abernathy brought along a friend for the

transaction, but the other two defendants were not involved. When Castillo took out

$600 in cash to pay for the computer, Abernathy's friend grabbed the money and ran

away with Abernathy. Castillo chased them, and as Castillo came closer, Abernathy

pulled out a gun and pointed it at Castillo, stating "I'm going to fucking kill you."

Castillo gave up the chase and called 911.

       A second robbery occurred on May 11, 2011, and involved Abernathy, Jones and

Jordan. Using the same Craigslist advertisement, Abernathy arranged to meet with 18-

year-old Garrett Berki in front of a school around 9:15 p.m. Berki brought his girlfriend,

Alejandra Faudoa, along in the car for the transaction. After waiting in front of the

school for a few minutes, Berki got a call from Abernathy stating that the meeting place

had changed to an apartment complex in the neighborhood. Berki drove to the new

location, where Abernathy and Jones were waiting outside. Abernathy insisted that Berki

show him the money before handing over the computer. During the discussion, Jones

either showed Berki a gun or pointed it at him, stating that Abernathy would count the

money. Berki handed over the money, and Abernathy demanded that Berki and Faudoa

give him their cell phones. Abernathy and Jones then ran away through the apartment

complex with a total of $640 and the two cell phones.

       According to Abernathy, he got to the scene of the May 11 robbery after being

picked up from home in a Honda driven by Jordan, in which Jones was a passenger.

Jordan parked near the apartment complex and dropped off Abernathy and Jones so that

                                              4
they could commit the robbery. After the robbery Abernathy and Jones ran back to the

Honda, and the three defendants decided to go to a nearby house where Jones's and

Jordan's girlfriends lived. According to Abernathy, they stayed at the house for a few

minutes but then were asked to leave, so they started driving toward a shopping mall.

       Meanwhile, after being robbed, Berki and Faudoa sat in their car for a few minutes

before deciding that Berki would drive to the police station to report the robbery. When

Berki had driven one or two blocks from the scene of the robbery, he noticed Jordan,

Jones and Abernathy in the Honda driving toward him. Berki and Faudoa decided to

follow the Honda so that they could get the license plate number. Berki followed the

Honda in and out of a parking lot and then through the streets and onto a freeway. Berki

was driving close behind the Honda to try to see the license plate, and he was also driving

in a manner that he hoped might attract the attention of the police, such as pulling directly

in front of the Honda and putting on his brakes.

       The Honda exited the freeway while Berki's car was in front of it, but Berki

managed to drive over the freeway shoulder and down the off-ramp, following the Honda

into a residential neighborhood. Both cars ended up on a dead-end street. Berki stopped

his car at an angle before the end of the cul-de-sac while the Honda turned around at the

end of the cul-de-sac and drove up next to Berki's car. Abernathy pointed a gun out of a

backseat window of the Honda and fired one shot into Berki's car. Berki was shot in the

left chest and was pronounced dead at the hospital a short time later.

       The defendants drove a few blocks away, crashed the Honda and fled into the

backyards of the residential neighborhood, where police located them by use of infrared

                                             5
helicopter cameras and K-9 units. After being arrested, Jones, Jordan and Abernathy

were taken to the police station, where they made numerous statements connecting

themselves to the crimes in a recorded jail cell conversation. Further, it was discovered

that the Honda in which the defendants were riding had been stolen a few hours before

the second robbery, either on the night of May 10 or the morning of May 11, 2011.

        Based on the events of May 11, 2011, Abernathy, Jones and Jordan were each

charged with first degree murder (§§ 187, subd. (a), 189), two counts of robbery (§ 211),

shooting at an occupied motor vehicle (§ 246); and unlawfully taking and driving a

vehicle (Veh. Code, § 10851, subd. (a)). Based on the May 5, 2011 robbery, Abernathy

was charged with an additional count of robbery (§ 211). The information also included

gang allegations for each count as to each defendant (§ 186.22, subd. (b)(1)), and

allegations as to each count (except the count for unlawfully taking or driving a vehicle)

that a principal personally used a firearm in committing the crimes (§ 12022.53, subd.

(b), (d), (e)(1)).

        When Abernathy testified at trial, he admitted to committing both robberies and to

shooting Berki, but he contended that the shooting was an accident caused by an

inadvertent discharge of the gun. Abernathy also testified that he did not know that

Jordan was driving a stolen vehicle until Jordan informed him of that fact when he got

back into the Honda after the second robbery. Jordan and Jones did not testify at trial.

        The jury found the defendants guilty on all counts but did not make a true finding

on the gang allegations and found the firearm allegations to be true only as to Abernathy.



                                             6
The trial court sentenced Jones and Jordan to prison for 25 years to life and sentenced

Abernathy to prison for 50 years to life.

                                              II

                                       DISCUSSION

A.     The Error in Instructing the Jury on the Escape Rule for Felony Murder Was
       Harmless Beyond a Reasonable Doubt

       We first consider the contention, advanced by all three defendants, that the trial

court prejudicially erred in failing to instruct on the escape rule for felony murder. There

is no dispute that the trial court erred. Indeed, as the trial court acknowledged in ruling

on posttrial motions, our Supreme Court's opinion in People v. Wilkins (2013) 56 Cal.4th

333 (Wilkins) — issued after the verdict in this case — establishes that the trial court's

instruction on felony murder was incorrect. However, as we will explain, we agree with

the trial court's conclusion that the error was harmless because, based on the jury's

findings on other issues, it is clear beyond a reasonable doubt that the jury would have

reached the same verdict on the murder counts had it been properly instructed with the

escape rule for felony murder.

       1.     The Escape Rule as Applied to Felony Murder

       We first examine the applicable legal principles under the felony-murder rule.

Here, all three defendants were charged with murder under the felony-murder rule, based

on the allegation that Berki's death occurred during the commission of a robbery.2 Under



2      As the shooter, Abernathy was also prosecuted for first degree murder under two
other theories identified in section 189, namely, (1) he killed willfully with premeditation
                                              7
the felony-murder rule, "[a]ll murder . . . which is committed in the perpetration of, or

attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, [or] train

wrecking . . . is murder of the first degree." (§ 189.) " 'Under the felony-murder rule, a

strict causal or temporal relationship between the felony and the murder is not required;

what is required is proof beyond a reasonable doubt that the felony and murder were part

of one continuous transaction.' " (Wilkins, supra, 56 Cal.4th at p. 340, italics added.)

       Prior to our Supreme Court's recent opinion in Wilkins, the discussion in People v.

Cavitt (2004) 33 Cal.4th 187 (Cavitt) created uncertainty about what constitutes one

continuous transaction in the context of the felony-murder rule. Specifically, the

uncertainty involved the issue of whether, in the context of felony murder, the target

felony continues only until the perpetrator has reached a place of temporary safety, which

is a concept referred to as "the escape rule." (See Wilkins, supra, 56 Cal.4th at pp. 341-

342 [explaining uncertainty as to the application of the escape rule in a felony-murder

context caused by Cavitt].) The escape rule is used in contexts other than felony murder

to determine whether an act occurred in the commission of a crime, such as to determine

whether a defendant used a firearm in commission of a crime, committed a kidnapping

during a crime, or inflicted great bodily injury during a crime. (Id. at p. 341, citing

cases.) CALCRIM No. 3261 accordingly sets forth the escape rule for use in those

contexts. However, based on Cavitt, the bench notes to CALCRIM No. 3261 at the time

of defendants' trial specifically disapproved instructing the jury on the escape rule in the

and deliberation, and (2) he intentionally discharged a firearm from a motor vehicle at
another person outside of the vehicle with the intent to inflict death.

                                              8
context of felony murder, stating that the instruction " 'should not be given in a felony-

murder case to explain the required temporal connection between the felony and the

killing.' " (Wilkins, at p. 341, citing (Judicial Council of Cal., Crim. Jury Instns. (2012)

Bench Notes to CALCRIM No. 3261, p. 990.)3

       Relying on Cavitt and the CALCRIM bench notes, the trial court here declined

defendants' requests to instruct the jury with the escape rule for the felony-murder count.

Under the instruction requested by defense counsel, but rejected by the trial court, the

jury would have been informed that a robbery continues for the purpose of the felony-

murder rule only until the perpetrators have reached a place of temporary safety. Instead,

the trial court instructed the jury with a modified version of former CALCRIM No. 549,

which set forth several nonexclusive factors for the jury to consider in determining

whether a robbery and a murder constitute one continuous transaction for the purposes of

the felony-murder rule.4



3      As modified to apply to a robbery case, CALCRIM No. 3261 states in relevant
part:
       "[The crime of robbery [or attempted robbery] continues until the perpetrator[s]
(has/have) actually reached a place of temporary safety.
       The perpetrator[s] (has/have) reached a place of temporary safety if:
•      (He/She/They) (has/have) successfully escaped from the scene; [and]
•      (He/She/They) (is/are) not or (is/are) no longer being chased(; [and]/.)
•      [(He/She/They) (has/have) unchallenged possession of the property(; [and]/.)]
•      [(He/She/They) (is/are) no longer in continuous physical control of the person who
       is the target of the robbery.]]"

4      Former CALCRIM No. 549, as given by the trial court, stated:
       "A killing is committed during the commission of a robbery under the felony
murder rule if the People have proved beyond a reasonable doubt that the robbery and the
act causing death are part of one continuous transaction. The continuous transaction may
                                              9
       The trial here took place in October and November 2012. In March 2013, before

sentencing in this case, our Supreme Court decided Wilkins, supra, 56 Cal.4th 333. In

Wilkins, the Supreme Court explained that despite any uncertainty caused by Cavitt, the

escape rule does apply in a felony-murder context, so that liability for felony murder ends

at the point that the perpetrator reaches a place of temporary safety. Wilkins stated,

" 'Felony-murder liability continues throughout the flight of a perpetrator from the scene

of a robbery until the perpetrator reaches a place of temporary safety because the

robbery and the accidental death, in such a case, are parts of a "continuous transaction." '

. . . When the killing occurs during flight, . . . the escape rule establishes the 'outer limits

of the "continuous-transaction" theory.' . . . 'Flight following a felony is considered part




occur over a period of time and in more than one location. There is no requirement that
the act causing death occur while committing or while engaged in the robbery or that the
killing be part of the robbery, so long as the People have proved the two acts are part of
one continuous transaction.
        "In deciding whether the killing and the robbery were part of one continuous
transaction, you may consider the following factors: [¶] 1. Whether the felony and the
fatal act occurred at the same place; [¶] 2. The time period, if any, between the robbery
and the fatal act; [¶] 3. Whether the fatal act was committed for the purpose of aiding
the commission of the robbery or escape after the robbery; [¶] 4. Whether the fatal act
occurred after the felony but while one or more of the perpetrators continued to exercise
control over the person who was the target of the felony; [¶] 5. Whether the fatal act
occurred while the perpetrators were fleeing from the scene of the robbery or otherwise
trying to prevent the discovery or reporting of the crime; [¶] 6. Whether the robbery was
the direct cause of death; [¶] AND [¶] 7. Whether the death was a natural and probable
consequence of the robbery.
        "It is not required that the People prove any of these factors or any particular
combination of these factors. This is not an exclusive list. The factors are given to assist
you in deciding whether the fatal act and the robbery were part of one continuous
transaction."

                                               10
of the same transaction as long as the felon has not reached a "place of temporary

safety." ' " (Id. at p. 345, citations omitted, some italics added.)

       Shortly after Wilkins was issued, the trial court notified the parties of the opinion

and invited briefing. The defendants thereafter filed motions for a new trial based on

Wilkins, arguing that the jury had been misinstructed on felony murder. In ruling on the

motions, the trial court concluded that it had misinstructed the jury because it did not

instruct with the escape rule for felony murder. However, the trial court concluded that

the error was harmless beyond a reasonable doubt because the jury had been instructed

with the escape rule as to the firearm allegations and the crime of shooting at an occupied

vehicle. As the trial court explained, based on the jury's findings on those issues, the jury

necessarily found that the defendants had not reached a place of temporary safety before

Abernathy shot Berki, and thus, had the jury been properly instructed on the escape rule

for felony murder, it would have found that the defendants had not reached a place of

temporary safety before the killing.

       2.     The Error Was Harmless Beyond a Reasonable Doubt

       For the purposes of our analysis, we begin with the premise, as do the parties, that

the trial court erred in failing to instruct the jury that the escape rule applies to the felony-

murder counts. Specifically, after Wilkins it is clear that, with respect to felony murder,

instead of instructing that the jury could find the robbery and the killing to be part of one

continuous transaction based on several nonexclusive factors, including "[w]hether the

fatal act occurred while the perpetrators were fleeing from the scene of the robbery or

otherwise trying to prevent the discovery or reporting of the crime" (former CALCRIM

                                               11
No. 549, as given), the jury should have been instructed that the robbery and the killing

could not be part of one continuous transaction if the defendants reached a place of

temporary safety before the killing.

       The only disputed issue for us to resolve is whether the instructional error was

prejudicial. Wilkins establishes that an error in failing to instruct the jury on the escape

rule for felony murder is a federal constitutional error because the error amounts to a

misinstruction on an element of first degree murder. (Wilkins, supra, 56 Cal.4th at

p. 350.) Applying the standard of prejudice applicable to federal constitutional error, we

therefore examine " 'whether it appears " ' "beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained." ' " ' " (Ibid.)

       An instructional error is harmless beyond a reasonable doubt if " '[t]he factual

question posed by the omitted instruction was necessarily resolved adversely to defendant

under other, properly given instructions.' " (People v. Pulido (1997) 15 Cal.4th 713,

726.) Here, as we will explain, the jury was instructed on the escape rule under two other

instructions and necessarily made findings on the escape rule adverse to the defendants in

connection with those instructions. Based on those findings, we can safely conclude that

the jury determined the defendants had not reached a place of temporary safety before the

killing.

       First, we explain why the instructional error was harmless as to Jones and Jordan.

Those two defendants were prosecuted for shooting at an occupied motor vehicle in

count 4 under the sole theory that they were guilty as aiders and abettors under the natural

and probable consequences doctrine. As the jury was instructed, for the natural and

                                              12
probable consequences doctrine to apply, it must find that "[d]uring the commission of"

the robbery, a coparticipant (i.e., Abernathy) committed the crime of shooting at an

occupied motor vehicle, and that the shooting was a natural and probable consequence of

the robbery.

       The jury was further instructed to use the escape rule to determine whether the

shooting occurred during the commission of the robbery for the purposes of the natural

and probable consequences. Specifically, the jury was instructed with a modification of

CALCRIM No. 3261, as follows: "For purposes of determining whether the crime of

Shooting at an Occupied Vehicle was committed as a natural and probable consequence

of robbery, the crime of robbery continues until the perpetrators have actually reached a

temporary place of safety. [¶] The perpetrators have reached a temporary place of safety

if: [¶] They have successfully escaped from the scene; [¶] They are no longer being

chased; AND [¶] They have unchallenged possession of the property." Having been

instructed with the modification of CALCRIM No. 3261, as quoted above, the jury found

Jones and Jordan guilty of shooting at an occupied vehicle.

       In light of the instruction on the escape rule in CALCRIM No. 3261, the jury

could not have found Jones and Jordan guilty of shooting at an occupied vehicle unless it

also found that the defendants had not reached a place of temporary safety before the

shooting. Therefore, based on the jury's finding with respect to the natural and probable

consequences doctrine for count 4, we can determine beyond a reasonable doubt what

finding the jury would have made had it been properly instructed with the escape rule for

felony murder. Specifically, based on the jury's verdict on the natural and probable

                                            13
consequences doctrine for count 4, if properly instructed on the escape rule for felony

murder, it is clear that the jury would have found that Jones and Jordan did not reach a

place of temporary safety before the shooting, so that the robbery and the murder were

part of one continuous transaction as required for a guilty verdict on felony murder. The

instructional error in failing to instruct on the escape rule for felony murder was therefore

harmless beyond a reasonable doubt as to Jones and Jordan.

       Second, we explain why the instructional error was harmless as to Abernathy. The

jury was instructed with the escape rule in the context of the firearm allegations against

Abernathy. Specifically, Abernathy was alleged to have personally and intentionally

discharged a firearm causing death while committing the May 11 robbery, the murder of

Berki and while shooting at an occupied vehicle. (§ 12022.53, subd. (d).) As the jury

was instructed, to make a true finding on those firearm allegations as to each crime, it had

to find, among other things, that Abernathy "personally discharged a firearm during the

commission of that crime." (Italics added.)

       To help the jury determine whether Abernathy personally discharged a firearm

during the crimes, the trial court instructed with a modification of CALCRIM No. 3261

that for the purposes of "Personally Using Firearm: Causing Death . . . , the crime of

robbery continues until the perpetrators have actually reached a temporary place of

safety. [¶] The perpetrators have reached a temporary place of safety if: [¶] They have

successfully escaped from the scene; [¶] They are no longer being chased; AND [¶]

They have unchallenged possession of the property."



                                              14
       The jury made a true finding that Abernathy personally and intentionally

discharged a firearm during the robbery of Berki and Faudoa, during the murder of Berki

and while committing the crime of shooting at an occupied vehicle. We know that the

only time Abernathy personally discharged a firearm during the events of May 11 was

when he shot Berki in the cul-de-sac after the car chase. Therefore, in concluding that

Abernathy personally discharged a firearm during the robbery of Berki and Faudoa, the

jury necessarily concluded that the robbery continued until the end of the car chase, when

Abernathy shot Berki.5

       In light of the instruction on the escape rule in CALCRIM No. 3261, the jury

could not have found that the robbery continued until Abernathy shot Berki unless it also

found that Abernathy did not reach a place of temporary safety before the shooting. We



5       Jordan and Jones argue that because the jury found the firearm allegations against
them to be unproven, and the jury was instructed on the escape rule to determine whether
a firearm was discharged during the commission of the crimes for the purposes of those
firearm enhancements, the jury must have determined that the escape rule was not
satisfied as to Jordan and Jones. The argument lacks merit. In contrast to the firearm
allegations that the jury found to be true as to Abernathy for personally discharging a
firearm under section 12022.53, subdivision (d), the only firearm enhancements alleged
against Jordan and Jones were gang-related firearm enhancements, applicable to
defendants who do not personally discharge a firearm, but who commit a gang-related
crime together with the shooter. (§ 12022.53, subds. (d), (e)(1).) The jury was instructed
that to make a true finding on the firearm allegations against Jordan and Jones as to each
of the applicable counts, it was required to find that the defendants "committed those
crimes for the benefit of, at the direction of, or in association with a criminal street gang
with the intent to promote, further, or assist in any criminal conduct by gang members."
The jury specifically found that the crimes were not gang related, requiring that they also
find that the gang-related firearms allegations against Jordan and Jones were unproven.
Therefore the jury's rejection of the firearm allegations against Jordan and Jones does not
mean that the jury found that the escape rule was not satisfied as to them.

                                             15
can therefore determine, beyond a reasonable doubt, based on the jury's true finding on

the firearm allegations for the robbery counts, that if the jury had been properly instructed

that the escape rule applied to felony murder, it would have concluded that Abernathy did

not reach a place of temporary safety before the shooting. If properly instructed, the jury

accordingly would have found that the robbery and the murder were part of one

continuous transaction for the purposes of felony murder. The instructional error in

failing to instruct on the escape rule for felony murder was therefore harmless beyond a

reasonable doubt as to Abernathy as well.

       The defendants argue that the instructional error was nevertheless prejudicial —

even in light of the finding on the escape rule in the context of the natural and probable

consequences doctrine for count 4 against Jones and Jordan and the firearm allegations

against Abernathy — because the jury must have been confused by the different

standards in former CALCRIM No. 549 and CALCRIM No. 3261 for determining

whether the robbery continued until the shooting.6 According to defendants, we cannot



6      Defendants cite Wilkin's statement, made in a slightly different context, that it
could be "confusing or misleading" if a trial court instructed with both CALCRIM
No. 3261 and former CALCRIM No. 549. (Wilkins, supra, 56 Cal.4th at p. 348, fn. 4.)
Defendants' citation to Wilkins does not advance their argument. Wilkins posited that it
would be confusing and misleading for trial courts to fashion an instruction on the escape
rule for felony murder by giving both CALCRIM No. 3261 and former CALCRIM
No. 549 together. Here, of course, both instructions were not given in an attempt to
instruct on the escape rule for felony murder. Instead, the trial court gave both
instructions because it concluded that the escape rule instruction in CALCRIM No. 3261
was warranted for the count of shooting at an occupied vehicle and the firearm
allegations, and former CALCRIM No. 549, in contrast, was needed to explain the one
continuous transaction doctrine for felony murder, and the distinction was made clear to
the jury.
                                             16
be certain that the jury properly applied the escape rule as described in CALCRIM

No. 3261 because its analysis may have been tainted by the different standards set forth

in former CALCRIM No. 549 for deciding whether the robbery and the shooting were

one continuous transaction for the purpose of felony murder.

       Based on our review of the record, we perceive no indication of any confusion

caused by the fact that the jury was instructed with former CALCRIM No. 549 as well as

CALCRIM No. 3261. We therefore perceive no problem with relying on the jury's

findings as to the duration of the robbery in the context of the natural and probable

consequences doctrine for count 4 and the firearm allegations in conducting our harmless

error analysis. Indeed, during closing arguments the difference in the standards for

determining the duration of the robbery as set forth in former CALCRIM No. 549 and

CALCRIM No. 3261 was extensively explained to the jury, and that explanation would

have dispelled any confusion that could have been caused by the conflicting standards in

the two instructions.7



7      Specifically, during closing argument the prosecutor explained that the time frame
involved in the question of whether the defendants had reached a place of temporary
safety before the shooting is "different than the felony[-]murder one continuous
transaction. This is what's known as the escape rule. It's going to sound similar because,
again, you can use this as a factor to determine if it's one continuous transaction, but it is
not the same thing." The prosecutor explained, "You can have the defendants reach a
place of temporary safety and still have felony murder and still have one continuous
transaction. They both can coexist." In his rebuttal argument, the prosecutor again
returned to the contrast between the two instructions. "The jury instructions define
robbery for you and how long this takes. For felony murder, it takes as long as the one
continuous transaction doctrine. For natural and probable consequences and for gun
usage, it takes as long as the escape rule says. The escape rule is not as long as the one
continuous transaction. The one continuous transaction extends beyond the escape rule."
                                              17
       We accordingly conclude that the trial court's error in failing to instruct on the

escape rule for felony murder was harmless beyond a reasonable doubt as to each of the

defendants.

B.     Sufficient Evidence Supports the Conviction for Unlawfully Taking or Driving a
       Vehicle Against Jones and Abernathy

       We next consider Jones's and Abernathy's argument that insufficient evidence

supports their conviction in count 5 for unlawfully taking or driving a vehicle (Veh.

Code, § 10851, subd. (a)).

       All three defendants were convicted of violating Vehicle Code section 10851,

subdivision (a), which provides: "Any person who drives or takes a vehicle not his or her

own, without the consent of the owner thereof, and with intent either to permanently or

temporarily deprive the owner thereof of his or her title to or possession of the vehicle,

whether with or without intent to steal the vehicle, or any person who is a party or an

accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty

of a public offense . . . ."

       As we have explained, the evidence established that the Honda being driven by

Jordan on May 11, 2011, during the robbery and murder had been stolen while parked on

the street sometime either late on May 10 or early on May 11. Jordan, who was the


Counsel for Jones also spent a considerable portion of his closing argument describing
the two different instructions for determining the duration of the robbery. Specifically,
he described at length both the question of whether the defendants had reached a place of
temporary safety for the purpose of the natural and probable consequences doctrine as
well as the multi-factored test for determining in the context of felony murder whether
the robbery and the shooting were part of one continuous transaction.

                                             18
driver of the stolen Honda, does not challenge the sufficiency of the evidence to support

his conviction for unlawfully taking or driving in violation of Vehicle Code section

10851, subdivision (a).

       However, Jones and Abernathy contend that because they were passengers in the

Honda, not the driver, and there is no evidence connecting them to the initial act of

stealing the Honda, there is insufficient evidence to convict them under Vehicle Code

section 10851, subdivision (a).

       In considering a challenge to the sufficiency of the evidence, "we review the entire

record in the light most favorable to the judgment to determine whether it contains

substantial evidence — that is, evidence that is reasonable, credible, and of solid value —

from which a reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt. . . . We presume every fact in support of the judgment the trier of fact could have

reasonably deduced from the evidence. . . . If the circumstances reasonably justify the

trier of fact's findings, reversal of the judgment is not warranted simply because the

circumstances might also reasonably be reconciled with a contrary finding. . . . 'A

reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' "

(People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.)

       We begin our analysis with a review of the applicable legal standards. As relevant

here, Vehicle Code section 10851, subdivision (a) contains plain language establishing

that criminal liability is not limited to the person who drives or steals a vehicle, but that it

also extends to "any person who is a party or an accessory to or an accomplice in the

driving or unauthorized taking or stealing." (Ibid., italics added.) In People v. Clark

                                              19
(1967) 251 Cal.App.2d 868, 874 (Clark), the court considered the extent to which a

passenger in a stolen vehicle may be criminally liable under the portion of the statute

applying to someone who is an accessory, an accomplice or a party to driving a stolen

vehicle. As Clark explained, establishing guilt under that theory "requires proof of more

than mere presence in the automobile. At a minimum, defendant must have known that

the vehicle had been unlawfully acquired and must have had that knowledge at a time

when he could be said to have, in some way, aided or assisted in the driving. Knowledge

of the unlawful taking, acquired after the ride started and when defendant could neither

stop the trip nor leave the vehicle is not enough." (Ibid., italics added.)

       Although sparse additional case law exists describing the circumstances in which a

passenger in a stolen vehicle will be criminally liable for unlawfully driving the vehicle,

case law in the analogous context of a passenger prosecuted for receiving a stolen vehicle

under section 496 is instructive. A conviction for receiving a stolen vehicle requires,

among other things that the passenger have actual or constructive possession of the

vehicle, even though the stolen vehicle is being driven by someone else. (People v. Land

(1994) 30 Cal.App.4th 220, 223 (Land).) The question of whether a passenger in a stolen

vehicle had constructive possession "turns on the unique factual circumstances of each

case." (Id. at p. 228.) In Land, the evidence supported a finding that the passenger had

constructive possession of the stolen vehicle because of the passenger's "close

relationship to the driver, use of the vehicle for a common criminal mission, and stops

along the way before abandoning it (during which [the passenger] apparently made no

effort to disassociate himself from his friend or the stolen vehicle)." (Ibid.)

                                              20
       Applying Clark and Land, we conclude that substantial evidence supports a

finding that although Jones and Abernathy were passengers in the stolen Honda being

driven by Jordan, they were parties to, accessories to or accomplices in the driving of the

stolen Honda.

       As required by Clark, there is evidence that Jones and Abernathy "kn[ew] that the

vehicle had been unlawfully acquired and . . . had that knowledge at a time when [they]

could be said to have, in some way, aided or assisted in the driving." (Clark, supra, 251

Cal.App.2d at p. 874.) Specifically, although Abernathy denied knowing before the

robbery that the Honda was stolen, he testified that as soon as he and Jones arrived back

at the Honda after robbing Berki and Faudoa, Jordan informed them that because the

Honda was stolen, he did not want to have a gun in the car. According to Abernathy's

testimony, after acquiring knowledge that the Honda was stolen, he and Jones

nevertheless drove in the Honda to visit Jordan's and Jones's girlfriends and after that

stop, they once again got in the stolen Honda before being chased by Berki. Under the

scenario described by Abernathy, there was ample opportunity for both Jones and

Abernathy to decide to cease being passengers in the stolen Honda. This situation is

accordingly not, as described in Clark, an instance where the defendants have no criminal

liability because they found out that the car was stolen "after the ride started and when

[they] could neither stop the trip nor leave the vehicle." (Ibid.)

       In addition, there are several similarities between this case and the circumstances

described in Land to support a finding that Jones and Abernathy were parties, accessories

or accomplices to driving the stolen vehicle. Specifically, (1) Jones and Abernathy had a

                                             21
"close relationship to the driver," in that all three defendants were friends; (2) all three

defendants made "use of the vehicle for a common criminal mission"; and (3) the

defendants made "stops along the way before abandoning [the vehicle] (during which

[Jones and Abernathy] apparently made no effort to disassociate [themselves] from

[their] friend or the stolen vehicle)." (Land, supra, 30 Cal.App.4th at p. 228.)

       Accordingly, based on the evidence at trial, a reasonable juror could determine

that although they were passengers in the stolen Honda driven by Jordan, both Jones and

Abernathy were nevertheless guilty of unlawfully taking or driving the vehicle.

C.     Defendants' Challenge to Their Sentences as Cruel and Unusual Punishment

       As we have described, each of the defendants was 17 years old when committing

the crimes at issue. Based on that fact, the defendants contend that the trial court violated

the prohibition on cruel and unusual punishment in the Eighth Amendment to the United

States Constitution by sentencing them to indeterminate life terms in prison (50 years to

life for Abernathy and 25 years to life for Jones and Jordan). Further, Jones and Jordan

contend that because they were not shooters during the murder, and in light of their age at

the time of the crime, their sentences are disproportionate to their crimes and therefore

constitute cruel and unusual punishment in violation of the federal and state

Constitutions.

       We apply a de novo standard of review to these issues. (People v. Em (2009) 171

Cal.App.4th 964, 971 (Em) [" 'Whether a punishment is cruel or unusual is a question of

law for the appellate court . . . .' "].)



                                              22
       1.       Abernathy's Sentence

       As the trial court described at sentencing, based on the crimes for which

Abernathy was convicted, the longest sentence that the trial court could impose on

Abernathy (if it selected midterm sentences for the determinate terms), was 83 years to

life. Further, based on a mandatory 25-year-to-life sentence for the first degree murder

conviction (§ 190, subd. (a)), plus a mandatory 25-year-to-life sentence for the firearm

enhancement (§ 12022.53, subd.(d)), the shortest sentence that the trial court could

impose on Abernathy was 50 years to life, even if all the sentences for the other counts

were run concurrently or stayed. Abernathy argued to the trial court that a sentence of 50

years to life would be a mandatory de facto life sentence without parole, given his

actuarial life expectancy of 64.6 years as a Black male born in 1993, in that he would not

be eligible for release from prison (taking into account his credits) until the age of 67 at

the earliest.

       The trial court acknowledged that given Abernathy's life expectancy, "an argument

could be made" that the required minimum sentence of 50 years to life was a de facto life

sentence without parole. The trial court therefore proceeded to apply the approach

required by the controlling United States Supreme Court case law, Miller v. Alabama

(2012) 567 U.S. __, 132 S.Ct. 2455 (Miller), which explains how the Eighth

Amendment's prohibition on cruel and unusual punishment applies to a defendant who,

like Abernathy, committed a homicide before the age of 18. Applying the approach

required by Miller, the trial court concluded that based on the circumstances of

Abernathy's case, including the age and maturity level at which Abernathy committed the

                                              23
murder, Abernathy's family and social background, and the details of the crime, a

sentence of 50 years to life did not constitute cruel and unusual punishment, and it

accordingly imposed that sentence.8

              a.     Applicable Case Law

       We begin our analysis with a focus on the United States Supreme Court's case law

applying the Eighth Amendment to the sentencing of juveniles.

       The applicable line of cases begins with Roper v. Simmons (2005) 543 U.S. 551,

575 (Roper), which held that it is cruel and unusual punishment to impose the death

penalty on a defendant who committed a capital crime when under the age of 18.

       Next, Graham v. Florida (2010) 560 U.S. 48, 74 (Graham), decided that it is cruel

and unusual punishment to sentence a defendant who committed a crime as a juvenile to

life in prison without parole for a nonhomicide offense. Under Graham, "[a] State is not

required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide

crime" but must "give defendants . . . some meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation." (Id. at p. 75.)

       Finally, Miller considered the issue of whether the Eighth Amendment proscribes

a mandatory life sentence without parole for a defendant convicted of a homicide for a

killing that occurred prior to the defendant's 18th birthday. (Miller, supra, 567 U.S. __,

132 S.Ct. 2455.) Miller disapproved mandatory life sentences without parole for juvenile


8      The trial court stayed the sentence on one of the robbery counts, and ordered that
the sentences for the remaining counts run concurrently to the 50-year-to-life term for the
murder and the firearm enhancement.

                                            24
homicide offenders, holding that a sentencing court must be given the discretion to

consider the juvenile offender's age and youthful characteristics before deciding whether

to impose a sentence of life without parole for a homicide conviction. (Miller, supra, 567

U.S. ___, 132 S.Ct. at p. 2475.)

       In the course of explaining why a mandatory life without parole sentence is

unconstitutional when applied to a juvenile homicide offender, Miller set forth the factors

that a sentencing court must consider before imposing such a sentence: "Mandatory life

without parole for a juvenile precludes consideration of his chronological age and its

hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks

and consequences. It prevents taking into account the family and home environment that

surrounds him — and from which he cannot usually extricate himself — no matter how

brutal or dysfunctional. It neglects the circumstances of the homicide offense, including

the extent of his participation in the conduct and the way familial and peer pressures may

have affected him. Indeed, it ignores that he might have been charged and convicted of a

lesser offense if not for incompetencies associated with youth — for example, his

inability to deal with police officers or prosecutors (including on a plea agreement) or his

incapacity to assist his own attorneys. [Citations.] And finally, this mandatory

punishment disregards the possibility of rehabilitation even when the circumstances most

suggest it." (Miller, supra, 567 U.S. ___, 132 S.Ct. at p. 2468.) As Miller explained,

"given all we have said in Roper, Graham, and this decision about children's diminished

culpability and heightened capacity for change, we think appropriate occasions for

sentencing juveniles to this harshest possible penalty will be uncommon. That is

                                             25
especially so because of the great difficulty we noted in Roper and Graham of

distinguishing at this early age between 'the juvenile offender whose crime reflects

unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects

irreparable corruption.' [Citations.] Although we do not foreclose a sentencer's ability to

make that judgment in homicide cases, we require it to take into account how children are

different, and how those differences counsel against irrevocably sentencing them to a

lifetime in prison." (Id. at p. 2469.)

       Our Supreme Court recently examined Miller in People v. Gutierrez (2014) 58

Cal.4th 1354 (Gutierrez), stating that "[u]nder Miller, a state may authorize its courts to

impose life without parole on a juvenile homicide offender when the penalty is

discretionary and when the sentencing court's discretion is properly exercised in

accordance with Miller."9 (Id. at p. 1379.) As Gutierrez explained, in a homicide case

involving a juvenile offender "the trial court must consider all relevant evidence bearing

on the 'distinctive attributes of youth' discussed in Miller and how those attributes

'diminish the penological justifications for imposing the harshest sentences on juvenile


9       Gutierrez examined the issue of how Miller impacted the constitutionality of
section 190.5, subdivision (b), which provides that the penalty for 16- or 17-year-old
juveniles who commit special circumstance murder "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," and which had been interpreted as creating a presumption in favor of a sentence
of life without parole. (Gutierrez, supra, 58 Cal.4th at p. 1369, quoting § 190.5.
subd. (b).) Gutierrez concluded that the statute should not be interpreted to create a
presumption of a life sentence without parole and that a sentencing court should instead
conduct the analysis described in Miller in deciding what sentence to impose on a
juvenile offender sentenced under section 190.5, subdivision (b). (Gutierrez, at pp. 1360-
1361.)

                                             26
offenders.' [Citation.] To be sure, not every factor will necessarily be relevant in every

case. . . . But Miller 'require[s] [the sentencer] to take into account how children are

different, and how those differences counsel against irrevocably sentencing them to a

lifetime in prison.' " (Id. at p. 1390.)

       One more recent decision by the California Supreme Court is pertinent here. In

People v. Caballero (2012) 55 Cal.4th 262 (Caballero), our Supreme Court considered

the constitutionality of a sentence of 110 years to life imposed on a defendant who was a

juvenile when he committed the nonhomicide crimes that gave rise to his sentence.

Caballero concluded that for the purpose of a constitutional analysis, the sentence should

be treated as a de facto life sentence without parole since there would be no opportunity

for the defendant to be released from prison during his lifetime.10 (Id. at p. 268.)

               b.     Abernathy's Sentence Is Constitutional Under Miller

       With the above case law in mind, we turn to Abernathy's challenge to his sentence.

Abernathy contends that given his life expectancy, the sentence of 50 years to life —

which is the minimum sentence statutorily authorized for his crimes — is a de facto

mandatory life sentence without parole. Abernathy accordingly contends that Miller

applies to his sentence, as it does to all juvenile homicide offenders who are subject to


10     Caballero dealt with juvenile nonhomicide offenders and thus applied the holding
in Graham. Our Supreme Court currently has under review the issue of whether, for the
purpose of Miller's holding that a mandatory life sentence without parole is
unconstitutional for juvenile homicide offenders, a de facto mandatory life sentence is the
functional equivalent of an actual mandatory life sentence without parole. (In re Alatriste
and In re Bonilla (2013) 220 Cal.App.4th 1232, review granted Feb. 19, 2014, S214652
(Alatriste), S214960 (Bonilla).)

                                             27
mandatory life sentences without parole. According to Abernathy, the trial court was

thus required at sentencing to exercise its discretion to consider whether, given the factors

set forth in Miller, it should impose a sentence of less than 50 years to life.

       In evaluating this argument, the first issue is whether Miller applies to sentences

that are not literally sentences of life without parole, but that — because of the length of

time before the defendant will have an opportunity for release — are de facto life

sentences without parole. As we have explained, that issue is currently before our

Supreme Court. (See fn. 10, ante.) As the issue is unsettled, we take the same approach

as the trial court and assume for the sake our analysis, without deciding, that Miller

applies to de facto life sentences without parole. We will also assume, without deciding,

that given Abernathy's life expectancy, a minimum statutorily authorized sentence of 50

years to life is a mandatory de facto life sentence, and that therefore, as Abernathy

contends, Miller applies here.

       Having assumed for the purposes of our analysis that Miller applies, the next issue

is whether the trial court complied with Miller in how it conducted Abernathy's

sentencing. As we have noted, Miller requires that when faced with a sentencing scheme

that requires a mandatory life sentence without parole for a juvenile homicide offender,

the sentencing court must nevertheless exercise its discretion to determine whether it

should impose the mandatory sentence in light of factors relating to the defendant's

youth. Miller directs the sentencing court to take into account the defendant's

"immaturity, impetuosity, and failure to appreciate risks and consequences"; the

defendant's "family and home environment"; "the circumstances of the homicide offense,

                                              28
including the extent of [the defendant's] participation in the conduct and the way familial

and peer pressures may have affected him"; the possibility that "incompetencies

associated with youth" resulted in the defendant being charged with a greater offense than

if he had been a more sophisticated participant in the criminal justice system; and "the

possibility of rehabilitation." (Miller, supra, 567 U.S. at p. __, 132 S.Ct. at p. 2468.) As

our Supreme Court explained in Gutierrez, "not every factor will necessarily be relevant

in every case," but the sentencing court must " 'take into account how children are

different.' " (Gutierrez, supra, 58 Cal.4th at p. 1390.)

       Based on the trial court's extensive comments at sentencing, we conclude it

complied with Miller's requirements in sentencing Abernathy. As an initial matter, we

note that the trial court expressly explained at the outset of its discussion that it was

assuming for the sake of its sentencing decision that Miller applied, and it would

accordingly conduct the analysis required by Miller. As the trial court explained, "I

believe that it is appropriate for this court, in analyzing the cruel and unusual aspect of

this sentence, to look at the individual factors of this defendant and this crime and make

that analysis at this point." Further, the trial court prefaced its analysis by accurately

summarizing the main point of Miller. "What I take from Miller . . . is that youth matters

in making a sentencing decision. It must be allowed to factor into the equation of a

sentence even in a homicide." The trial court then went on to analyze whether, based on

the considerations in Miller, it should impose a sentence of less than 50 years to life.

Specifically, the trial court pointed out the following factors: (1) Abernathy's age at the

time of the murder was 17½, making him "not particularly young," and thus more mature

                                              29
than many other juvenile offenders; (2) the nature of Abernathy's crimes was not

childlike or youthful, in that the crimes were sophisticated and carried out as part of a

scheme planned by Abernathy; (3) Abernathy had already committed the same type of

armed robbery days earlier, showing that he understood the nature of what he was doing

and did not merely act impulsively; (4) as Abernathy described during his testimony, he

had a positive emotional reaction to intimidating and terrifying Castillo in the first

robbery, which revealed something "very negative" about Abernathy's character;

(5) Abernathy's motive for the crimes was not "youthful," and instead was "pure greed"

not based on any financial need; (6) Abernathy's family and social background was not a

mitigating factor impacting his decision to commit a crime as a juvenile, as he was not

particularly disadvantaged or abused, was raised in a supportive and financially stable

family, had friends who were not criminals, and had no substance abuse or mental health

issues; (7) at the age of 17½ and at his maturity level as shown by the evidence,

Abernathy was fully capable of understanding the risk of threatening people with loaded

guns; and (8) according to Abernathy's comments to his codefendants in the jail cell on

the night of the murder, he felt no remorse. Based on all of these considerations, the trial

court concluded, "I do believe that there are some circumstances where 50 to life would

be so disproportionate to the conduct involved or given the mitigating circumstances of a

juvenile involved that it would be unconstitutional . . . , but this is not one of them."

       In light of the fact that the trial court undertook a substantive and meaningful

analysis of whether, in light of Abernathy's age at the time of the murder and other

related factors, it should impose a sentence less than 50 years to life, we conclude that the

                                              30
trial court fully complied with the requirements of Miller. Therefore, there is no merit to

Abernathy's contention that the trial court sentenced him to 50 years to life in prison in

violation of the Eighth Amendment's prohibition on cruel and unusual punishment.11

       2.     Jones's and Jordan's Sentences

       The trial court sentenced both Jones and Jordan to prison for 25 years to life. As

they did in the trial court, Jordan and Jones contend that a sentence of 25 years to life

constitutes cruel and unusual punishment under both the federal and state Constitutions.

              a.     Federal Constitutional Argument Based on Graham and Miller

       Jordan's and Jones's main federal constitutional argument is based on the same

Eighth Amendment case law we have discussed above, as set forth in Roper, Graham and

Miller. Jordan and Jones contend that the standards in case law governing life sentences



11     As the parties discuss, after the sentencing in this case, the Legislature passed
Senate Bill No. 260, effective January 2014, which enacted section 3051. (Stats. (2013)
ch. 312, § 4.) With certain exceptions not applicable here, section 3051 provides an
opportunity for a juvenile offender to be released on parole irrespective of the sentence
imposed by the trial court by requiring the Board of Parole Hearings to conduct "youth
offender parole hearings" on a set schedule depending on the length of the prisoner's
sentence. Specifically, youth offender parole hearings are held during the 15th year of
incarceration for a prisoner serving a determinate sentence (id., subd. (b)(1)), during the
20th year of incarceration for a prisoner serving a life term less than 25 years to life (id.,
subd. (b)(2)), and during the 25th year of incarceration for a prisoner serving a life term
of 25 years to life (id., subd. (b)(3)). The question of how Senate Bill No. 260 impacts
issues of cruel and unusual punishment for youth offenders is currently before our
Supreme Court. (In re Alatriste and In re Bonilla, supra, 220 Cal.App.4th 1232, review
granted Feb. 19, 2014, S214652 (Alatriste), S214960 (Bonilla).) Here, however, because
we conclude that there is no Eighth Amendment infirmity in Abernathy's sentence, we
need not, and do not, reach the issue of whether Senate Bill No. 260 would have served to
cure any Eighth Amendment violation by requiring a parole hearing after Abernathy
served 25 years in prison.

                                             31
without parole for juvenile offenders established in Graham and Miller should be

extended to cases, such as theirs, in which they (1) are "exposed" to a life sentence, and

(2) neither "killed nor intended to kill." As we will explain, we reject this argument.

       The first problem with Jones's and Jordan's argument, is that neither Jones nor

Jordan were sentenced to a life term without parole.12 As they correctly describe the

situation, they have merely been "exposed" to the possibility of a lifetime in prison

because the parole board may decide not to release them after they become eligible for

release in 25 years.13 Our Supreme Court was very clear in Graham and Miller that the

Eighth Amendment issues it was discussing arose only in the context of juvenile

offenders who were sentenced to life in prison without the possibility of parole. As

Graham explained, "[a] State is not required to guarantee eventual freedom to a juvenile

offender convicted of a nonhomicide crime[,]" but "must . . . give defendants . . . some

meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation." (Graham, supra, 560 U.S. 48, italics added.) Like Graham, Miller also

applies only to "lifetime incarceration without possibility of parole." (Miller, supra, 567

U.S. ___, 132 S.Ct. at p. 2475, italics added.)



12     As we have done in connection with evaluating Abernathy's arguments, we will
assume without deciding that Caballero's holding that de facto life sentences without
parole against a juvenile offender are barred by the Eighth Amendment for nonhomicide
crimes (Caballero, supra, 55 Cal.4th at p. 268) is also applicable to homicide crimes,
such as the murder convictions here.

13      Jordan acknowledges that "he was given a 25[-]year[-]to[-]life term and thus is
eligible for parole when he is in his early 40's[,] possibly sooner."

                                             32
       Because Jones and Jordan were both sentenced to a term of 25 years to life, it is

possible that they will be paroled from prison while they are in their forties, far before

they are at the end of their life expectancy. Accordingly, Jones and Jordan have not been

sentenced to a de facto prison term of life without parole, and neither Graham nor Miller

apply. Under similar circumstances, our colleagues in People v. Perez (2013) 214

Cal.App.4th 49 (Perez) rejected the defendant's argument that a term of 30 years to life,

for a nonhomicide crime committed at the age of 16, was cruel and unusual punishment

under the Eighth Amendment. As Perez explained, because the defendant was eligible

for release from prison at age 47, "by no stretch of the imagination can [the] case be

called a 'functional' or 'de facto' [life without parole sentence], and therefore neither

Miller, Graham, nor Caballero apply." (Id. at p. 58.)

       We further reject Jordan's and Jones's contention that their sentences should be

determined to be cruel and unusual punishment under Miller and Graham because they

are juvenile offenders who purportedly "neither killed nor intended to kill." As the basis

for this argument, Jordan and Jones point out that although they were convicted of first

degree murder, neither of them shot at Berki and there was no evidence that they knew

Abernathy was going to do so.

       We need not decide whether, for the purposes of an Eighth Amendment analysis, a

juvenile offender convicted of first degree murder under a felony-murder theory but who

did not personally kill anyone should be treated as having committed a homicide crime or




                                              33
a nonhomicide crime.14 Under either approach, Jordan's and Jones's sentences do not

violate the Eighth Amendment as clarified in Miller and Graham. If Jones and Jordan

committed a homicide crime, then Miller applies, and the Eighth Amendment bars a

mandatory term of life in prison without parole. (Miller, supra, 567 U.S. ___, 132 S.Ct at

p. 2475.) If Jones and Jordan committed a nonhomicide crime, then Graham and

Cabellero apply, and the Eighth Amendment bars a de facto sentence of life in prison

without parole (Graham, supra, 560 U.S. at p. 74; Caballero, supra, 55 Cal.4th at

p. 268). But, as we have explained, Jones and Jordan did not receive either a mandatory

or a discretionary life sentence without the possibility of parole. Instead, they are eligible

for release from prison when they are in their forties. Therefore, the sentences do not

constitute cruel and unusual punishment regardless of whether Jones and Jordan

committed a homicide crime or a nonhomicide crime by participating in a felony murder,

and regardless of whether Graham or Miller applies.

              b.     Disproportionate Sentences

       As a second federal constitutional argument, Jordan and Jones contend that,

regardless of the holdings in Miller and Graham, their sentences are unconstitutional


14     Jordan's and Jones's argument that they neither killed nor intended to kill is a
reference to the statement in Graham that "when compared to an adult murderer, a
juvenile offender who did not kill or intend to kill has a twice diminished moral
culpability" and thus should not be subjected to life in prison without parole. (Graham,
supra, 560 U.S. at p. 69.) In Miller, Justice Breyer argued in his concurrence that a
defendant convicted under a felony-murder theory may not have killed or intended to kill,
and the Eighth Amendment analysis in Graham should accordingly apply in such cases.
(Miller, supra, 567 U.S. ___, 132 S.Ct. at pp. 2475-2477.) As we have explained, we
need not resolve the issue.

                                             34
under the Eighth Amendment because they offend principles of proportionality that are

applicable to all defendants, not just juvenile offenders.

       As our Supreme Court has explained, "the Eighth Amendment contains a 'narrow

proportionality principle,' that 'does not require strict proportionality between crime and

sentence' but rather 'forbids only extreme sentences that are "grossly disproportionate" to

the crime.' " (Graham, supra, 560 U.S. at pp. 59-60, quoting concurrence of Kennedy, J.

in Harmelin v. Michigan (1991) 501 U.S. 957, 997, 1000-1001.) In "determining

whether a sentence for a term of years is grossly disproportionate for a particular

defendant's crime," "[a] court must begin by comparing the gravity of the offense and the

severity of the sentence. [Citation.] '[I]n the rare case in which [this] threshold

comparison . . . leads to an inference of gross disproportionality' the court should then

compare the defendant's sentence with the sentences received by other offenders in the

same jurisdiction and with the sentences imposed for the same crime in other

jurisdictions. [Citation.] If this comparative analysis 'validate[s] an initial judgment that

[the] sentence is grossly disproportionate,' the sentence is cruel and unusual." (Graham,

supra, 560 U.S. at p. 60.) "The gross disproportionality principle reserves a

constitutional violation for only the extraordinary case." (Lockyer v. Andrade (2003) 538

U.S. 63, 77.) Jones and Jordan argue that because they were convicted under a felony-

murder theory and did not directly participate in killing Berki, a comparison of the

gravity of their offenses with the severity of their sentences leads to the conclusion that a

prison sentence of 25 years to life is grossly disproportionate to their crimes.



                                             35
       In a similar argument, Jones and Jordan also rely on case law developed under the

California Constitution prohibiting disproportionate sentences. Article I, section 17 of

the California Constitution prohibits the infliction of "[c]ruel or unusual punishment." A

sentence will not be allowed to stand under the California Constitution "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.' " (People v. Carmony (2005) 127

Cal.App.4th 1066, 1085, citing In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch); People v.

Dillon (1983) 34 Cal.3d 441, 478 (Dillon).)

       Under California law, a defendant attacking a sentence as cruel or unusual "must

demonstrate his punishment is disproportionate in light of (1) the nature of the offense

and the defendant's background, (2) the punishment for more serious offenses, or

(3) punishment for similar offenses in other jurisdictions." (In re Nunez (2009) 173

Cal.App.4th 709, 725.) The defendant "need not establish all three factors—one may be

sufficient [citation], but the [defendant] nevertheless must overcome a 'considerable

burden' to show the sentence is disproportionate to his level of culpability [citation]. As a

result, '[f]indings of disproportionality have occurred with exquisite rarity in the case

law.' " (Ibid.) Although California case law sets forth three factors to consider in

conducting a proportionality analysis, "the sole test remains . . . whether the punishment

'shocks the conscience and offends fundamental notions of human dignity.' " (Dillon,

supra, 34 Cal.3d at p. 487, fn. 38.) "Successful challenges based on the traditional

Lynch-Dillon line are extremely rare." (Perez, supra, 214 Cal.App.4th at p. 60.)



                                              36
       Jones and Jordan do not argue that a prison sentence of 25 years to life for first

degree murder is disproportionate to (1) the punishment for more serious offenses, or

(2) the punishment for first degree murder in other jurisdictions. Instead, Jordan and

Jones limit their argument to the first factor described in the case law, i.e., whether their

sentence is grossly disproportionate to the nature of the offense and their personal

backgrounds. As this issue overlaps with the central issue posed by the federal

proportionality analysis, i.e., whether the sentence is grossly disproportionate to the

gravity of the offense (Graham, supra, 560 U.S. at p. 60), we consider both the federal

and state constitutional proportionality challenges together. In conducting our analysis,

"[w]e examine both the seriousness of the crime in the abstract and 'the totality of the

circumstances surrounding the commission of the offense . . . , including such factors as

its motive, the way it was committed, the extent of the defendant's involvement, and the

consequences of his acts.' " (Em, supra, 171 Cal.App.4th at p. 972.)

       Turning to the nature of the crime, felony murder committed during a robbery is a

serious and dangerous crime. As our Supreme Court has observed, "when it is viewed in

the abstract robbery-murder presents a very high level of such danger, second only to

deliberate and premeditated murder with malice aforethought." (Dillon, supra, 34 Cal.3d

at p. 479.) Jones and Jordan argue, however, that in the unique circumstances of this

case, a 25-year-to-life sentence for felony murder is disproportionate to the gravity of the

crime because they were not the shooters, they had minimal or nonexistent criminal




                                              37
history prior to this case,15 and they were juveniles when they committed the instant

offenses. As we will explain, we reject these arguments, and conclude that a sentence of

25 years to life was not grossly disproportionate to Jones's and Jordan's crime of felony

murder.

       First, although Jones and Jordan did not personally shoot Berki, they were

nevertheless convicted of felony murder based on their willing participation in an armed

robbery. "Life 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." (Em,

supra, 171 Cal.App.4th at pp. 972-973.) Indeed, in Em, the court rejected a similar

disproportionality argument, affirming a sentence of 50 years to life for a defendant

convicted of felony murder for a murder that occurred when he was 15 years old. The

defendant in Em was not the shooter, but he was a participant in an armed robbery, during

which his companion shot the person they were trying to rob. (Id. at pp. 967-968.) Em

explained that "[a]lthough defendant did not shoot the gun himself, the robbery and

murder took place with his culpable involvement. Defendant's participation in the crime

was demonstrably not 'passive . . . .' " (Id. at p. 975.) As here, the facts in Em supported

the conclusion that the "[d]efendant committed this crime, not because he was in the




15     Jordan had no criminal history prior to this case, but the evidence at trial was that
he was a documented gang member as of February 2008. Jones had several true findings
as a juvenile, of increasing seriousness, for petty theft, resisting an officer, and assault
with a deadly weapon during a gang-related shooting. The evidence at trial was that
Jones was a documented gang member as of January 2009.
                                             38
wrong place at the wrong time, but because he has a complete disregard for the rule of

law and lack of respect for human life." (Id. at p. 976.)

       Similar to Em, other cases have rejected arguments by juvenile offenders that a

sentence for first degree murder violates the proportionality principle of the California

Constitution even though the defendant was not the person who committed the killing,

when the defendant knowingly participated in a serious crime that led to the murder.

(People v. Gonzales (2001) 87 Cal.App.4th 1, 7, 16 [rejecting a proportionality challenge

to 50-year-to-life sentences imposed on juvenile offenders for first degree murder, when

the defendants were not shooters but participated in an armed attack]; People v. Ortiz

(1997) 57 Cal.App.4th 480, 486-487 [affirming a 26-year-to-life sentence for a 14-year-

old gang member convicted of felony murder occurring when his companion shot

someone during a robbery].)

       Next, a focus on Jones's and Jordan's personal characteristics also results in the

conclusion that the sentence is not grossly disproportionate. As case law directs, we

inquire "whether the punishment is grossly disproportionate to the defendant's individual

culpability as shown by such factors as his age, prior criminality, personal characteristics,

and state of mind." (Dillon, supra, 34 Cal.3d at p. 479.)

       As the trial court pointed out, both Jordan and Jones were culpable participants in

the events leading up to the murder. Jones threatened Berki with a firearm during the

robbery and demanded money. Jordan was the getaway driver in a car that he had stolen.

The defendants' comments to each other in the jail cell after they were arrested showed

no remorse and provided no indication that this was an exceptional circumstance where

                                             39
either Jordan or Jones unknowingly participated in, or were pressured to take part in,

criminal activity. On the contrary, even though there was evidence at trial that Abernathy

may not have been a gang member, it is undisputed that both Jordan and Jones were

active members of criminal street gangs. In addition, Jones had a criminal history of

escalating seriousness, which included taking part in a violent gang assault. Therefore,

we do not perceive this as a situation where the defendants' personal characteristics and

role in the commission of the crimes make a sentence of 25 years to life in prison a

grossly disproportionate punishment for the crime of first degree murder.

       Jones and Jordan argue that this case is like Dillon, supra, 34 Cal.3d 441, in which

our Supreme Court concluded that a juvenile offender convicted of felony murder should

have his punishment reduced to the applicable sentence for second degree murder based

on principles of proportionality under the California Constitution. (Dillon, at p. 489.) In

Dillon, the court explained that the defendant was 17 years old during the crime and had

shot the victim nine times in a panic during an unsophisticated attempt to steal from a

marijuana farm. (Id. at p. 452.) Concluding that the indeterminate life term for first

degree murder was a disproportionate sentence because of the defendant's immaturity and

the nature of his crime, Dillon explained, "at the time of the events herein defendant was

an unusually immature youth. He had had no prior trouble with the law, and . . . was not

the prototype of a hardened criminal who poses a grave threat to society. . . . [W]ith

hindsight his response might appear unreasonable; but there is ample evidence that

because of his immaturity he neither foresaw the risk he was creating nor was able to

extricate himself without panicking when that risk seemed to eventuate." (Id. at p. 488.)

                                            40
       Because of the sophisticated nature of the robbery that Jordan and Jones

participated in here, the absence of any evidence that they were particularly immature or

that they failed to appreciate the risk of violence in committing an armed robbery, as well

as the fact that Jordan and Jones were members of criminal street gangs, this is simply

not a case like Dillon where the felony murder was the result of the actions of an

immature youth who did not foresee the risks inherent in his behavior. As has long been

acknowledged, "Dillon's application of a proportionality analysis to reduce a first degree

felony-murder conviction must be viewed as representing an exception rather than a

general rule." (People v. Munoz (1984) 157 Cal.App.3d 999, 1014.)

       We agree with the trial court that, unlike Dillon, this is not a case "that is so

unusual and mitigating, either the crime or the defendants, that the statutory mandated

sentence by the Legislature is unconstitutional." Therefore, we reject Jordan's and Jones's

argument that their sentences are grossly disproportionate under either the federal or state

Constitutions.

D.     Defendants' Presentence Custody Credit

       In each of their opening briefs, defendants argued that the trial court incorrectly

calculated the applicable presentence custody credit pursuant to section 2900.5 in that it

awarded 751 days of credit instead of 752 days. As defendants point out, they were

arrested late on the night of May 11, 2011, and sentenced on May 31, 2013, which

encompasses 752 days of presentence custody, but the trial court awarded only 751 days

of presentence custody credit.



                                              41
       During the pendency of the appeal, Jones applied for and obtained an order from

the trial court correcting the error. Accordingly, Jones's appeal on the presentence

custody credits is moot, and we do not address it further.

       However, Jordan and Abernathy did not apply for relief from the trial court. We

have the authority on appeal to amend the judgment to award the correct amount of

presentence custody credits. (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428;

People v. Donan (2004) 117 Cal.App.4th 784, 792-793.) Based on evidence that the

three defendants were each in custody from May 11, 2011, to May 31, 2013, and the trial

court's conclusion that Jones should have received an extra day of presentence custody

credit, we conclude that Jordan and Abernathy are also entitled to an extra day of

presentence custody credit. We accordingly modify the judgment to award Jordan and

Abernathy 752 days of presentence custody credit instead of 751 days.

E.     Correction of Clerical Error in the Abstract of Judgment Regarding Jones's
       Sentence

       At sentencing, the trial court ordered that Jones's five-year sentence on count 4 for

shooting at an occupied vehicle (§ 246) was to be stayed pursuant to section 654.

However, the trial court's minute order and the abstract of judgment erroneously state that

count 4 was ordered to run concurrently with the other counts.

       The record of the trial court's oral pronouncement of sentence controls over a

conflicting minute order or abstract of judgment. (People v. Farell (2002) 28 Cal.4th

381, 384; People v. Mesa (1975) 14 Cal.3d 466, 471.) Based on this principle, the

Attorney General concedes that the abstract of judgment should be corrected to reflect the


                                             42
trial court's decision to stay the sentence on count 4. We accordingly direct that Jones's

abstract of judgment be corrected to show that the trial court ordered that the sentence on

count 4 be stayed pursuant to section 654.

                                        DISPOSITION

       As to Abernathy and Jordan, we direct the trial court to amend the abstract of

judgment to award an additional day of presentence custody credit. As to Jones, we

direct the trial court to amend the abstract of judgment to reflect that Jones's sentence on

count 4 is stayed pursuant to section 654. The trial court shall forward the amended

abstracts of judgment to the Department of Corrections and Rehabilitation. In all other

respects, the judgments are affirmed.



                                                                                   IRION, J.

WE CONCUR:



HUFFMAN, Acting P. J.



HALLER, J.




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