Filed 9/6/13 P. v. Rocha CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047420

                   v.                                                  (Super. Ct. No. 11CF0470)

RICARDO GUERRA ROCHA,                                                  OPINION

    Defendant and Appellant.
___________________________________
In re RICARDO GUERRA ROCHA,
                                                                       G048047
    On Habeas Corpus.


                   Appeal and petition for a writ of habeas corpus following a judgment of the
Superior Court of Orange County, Steven D. Bromberg, Judge. Judgment affirmed.
Petition denied.
                   Kurt David Hermansen, under appointment by the Court of Appeal, for
Defendant and Appellant.
              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Sean M. Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.


                               *              *             *


              A jury convicted defendant Ricardo Guerra Rocha of second degree murder
(Pen. Code, §§ 187, subd. (a), 189; all further statutory references are to this code unless
otherwise indicated; count 1); and street terrorism (§186.22, subd. (a); count 2). It further
found true allegations he vicariously discharged a firearm, causing the victim‘s death (§
12022.53, subds. (d) & (e)(1)), and committed the crime for the benefit of, at the
direction of, or in association with a criminal street gang (§ 186.22, subd. (b)). The court
sentenced defendant to 15 years to life on count 1 and 25 years to life for the
enhancements but stayed his sentence on count 2.
              In his appeal, defendant contends (1) the court erred in admitting his
statements to a detective because they were obtained in violation of Miranda v. Arizona
(1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda), (2) insufficient
evidence supports the section 186.22, subdivision (b) and vicarious firearm discharge
enhancements, (3) California‘s mandatory sentencing scheme under section 12022.53,
subdivisions (d) and (e)(1) violates the Eighth Amendment as applied to juveniles, and
(4) his 40 years to life sentence constitutes cruel and unusual punishment under the
California Constitution.
              Defendant also filed a petition for writ of habeas corpus, which we
consolidated with the appeal for all purposes, raising the same Miranda and cruel and
unusual punishment issues he asserts in his direct appeal. He also claims his trial




                                              2
attorney failed to provide him with effective assistance of counsel by failing to advocate
on his behalf at sentencing. Finding no error, we affirm the judgment and deny the
petition.


                                         FACTS


               Defendant‘s sister, Maria, drove defendant, Ivan Sanchez and Humberto
Rivera to dinner one evening. Defendant, aka ―Husky,‖ had just been released from
juvenile hall three days earlier where he had been placed for consuming controlled
substances and violating his probation terms, and he and Sanchez were members, and
Rivera was an associate, of the Central Myrtle Street gang. Sanchez wore a Milwaukee
Brewers hat, a symbol of the gang, which defendant also owned but did not wear that
night. Seven months earlier, defendant told a police officer he had been ―kicking back‖
with the gang since he was 8 or 9 years old, that he was wearing the Milwaukee Brewers
hat because he was proud to represent the gang, and would ―back up his homies against
all his enemies.‖ Per gang expert Matthew McLeod, that meant ―he would do anything to
support his fellow gang members in whatever criminal enterprise or endeavor they chose
to undergo.‖
               At the restaurant, located about 10 minutes away from Central Myrtle gang
territory, defendant‘s group had an altercation with another group. Esteban Navarrete,
his wife, niece, and niece‘s boyfriend sat at a table between them. A video recording
showed Sanchez making the Central Myrtle Street gang hand sign during the
approximately 30 minute argument. According to McLeod, gang signs are ―a nonverbal
way of claiming a gang, showing one‘s dedication and membership in that gang to all
those who would view it, be they rivals, perceived rivals, [or] just community members.‖




                                             3
              When defendant‘s group left the restaurant and went to Maria‘s truck, the
other group ―went after them‖ and ―pushed them around.‖ After a minute or so of back
and forth pushing and shoving, defendant‘s group drove off.
              About 15 to 20 minutes later, defendant and Sanchez approached
Navarrete‘s group as they were entering their car. Defendant was ―walking‖ Sanchez
―like if Sanchez didn‘t know what he was doing‖ and pointed at Navarrete‘s car as they
approached. Standing really close to each other ―like they were hugging or something,‖
either defendant or Sanchez said, ―‗That‘s the girl that beat us.‘‖
              With defendant directly behind him, Sanchez aimed the gun at Navarrete‘s
wife. Navarrete got out of the car and said, ―‗Hey, it‘s not us. It‘s over there. It‘s not
us.‘‖ Sanchez shot Navarrete in the head and fired at least four more shots into
Navarette‘s car. After Sanchez stopped firing the gun, defendant pushed the gun down
with his hand. Defendant pointed to the vehicle they arrived in and ran to it with
Sanchez.
              Five days later, defendant voluntarily went to the police station and asked
to speak to a detective. He stated Sanchez had received the gun from another Central
Myrtle gang member and that once the shooting was complete he told Sanchez to dispose
of his clothes in order not to be linked to the murder.
              According to McLeod, gang members sometimes commit crimes with
nongang members. When a gang member is disrespected in front of another gang
member, he must respond immediately with an act outweighing the disrespect he incurred
or risk harming his reputation in the gang and bringing disrespect on the gang as a whole.
The disrespect does not have to be gang related but merely something viewed as
―negative‖ and can include ―a menacing glare,‖ or being bumped, stepped on, or verbally
discredited. The greater the violence committed, the more respect the gang




                                              4
member obtains, with homicide providing the highest status to all the gang members
present or participating.
                Testifying on his own behalf, defendant denied being a member of Central
Myrtle, although he admitted being friends with members. He had been drinking
whiskey, smoking marijuana, and using methamphetamine before the shooting and only
had a Milwaukee Brewers hat because he was a fan of the team. He met Rivera while in
juvenile hall and Sanchez the night of the shooting while he was ―getting high.‖
                At the restaurant, defendant drank beer and Rivera tried to settle the fight
between Sanchez and the other group. He told Marie they should leave when Sanchez
threw up. As he was helping Sanchez leave, a man from the other group hit defendant
and defendant fought back. The rest of the other group came out and a fight ensued
between them. The members of the other group were older and bigger than defendant,
Sanchez, and Rivera. Defendant and his friends left with Maria in her truck. Defendant
was ―pissed.‖
                Sanchez had Maria drive to the house where he and defendant had been
using drugs and drinking earlier. Sanchez left the truck, and returned with a Central
Myrtle gang member, who placed a loaded gun on an empty seat in the truck. Sanchez
stated he was ―‗going to scare this mother fucker‘‖ while defendant wanted to ―‗fuck [the
other group] up.‖
                At Sanchez‘s request, Maria drove them back to the restaurant, entering
through the back of the lot. Sanchez got out of the truck and when he pointed the gun,
defendant hit him on the hand. Sanchez kept walking and defendant did not try to stop
him because he was scared Sanchez would shoot him.
                Upon seeing Navarrete, defendant believed he was one of the men who had
attacked him earlier. Sanchez fired several shots at Navarrete and his vehicle, which




                                               5
defendant knew contained other passengers. Defendant pushed him, saying, ―‗What the
fuck‘‖ and took the gun away once they entered Maria‘s truck. Defendant told Sanchez
to get rid of his clothes to prevent his DNA from being discovered and identifying him as
the shooter. Maria dropped Sanchez off where he obtained the gun, and defendant went
to find his friend with whom he ―got high.‖


                                       DISCUSSION


1. Miranda Violation
              Defendant contends the court erred in denying his motion to exclude the
statements he made at the police station because he was not informed of his Miranda
rights. In his petition for writ of habeas corpus, he asserts he would not have testified at
trial if those statements had not been admitted.


              a. Relevant Proceedings
              Dean Fulcher, the detective conducting the interview, testified at trial that
between the night of the shooting and the day defendant went to the police station, police
obtained a video showing defendant, Sanchez, and Maria at the restaurant and
disseminated it to the press. Although defendant had not been identified as a participant
in the murder and had not been summoned by anyone in the department, he walked into
the police station lobby with his sister and asked to speak with a detective.
              Fulcher did not know what information defendant intended to share and did
not handcuff him or place him under arrest. Unlike the standard procedure in a homicide
case where two detectives conduct the interview, Fulcher spoke with defendant alone in a




                                              6
department room. During the hour-long interview, Fulcher never became confrontational
or raised his voice.
              Fulcher began by turning on a recording device and telling defendant he
was not in custody or under arrest, was free to leave at any time, and the only reason he
closed the door was for privacy. He asked defendant his age and defendant responded he
was 17 years old. Fulcher then asked what defendant wanted to talk about.
              Defendant gave a narrative of his version of what happened the day of the
shooting, including the dinner, the argument with the other group, and the fight outside
the restaurant. Afterwards, he and his sister dropped his friends off and went home.
Fulcher did not interrupt defendant except to say ―yes,‖ ―okay,‖ ―right,‖ and ―uh-huh.‖
He also asked several follow up questions, such as who else was involved that evening.
              After defendant denied knowing where Sanchez and Rivera were, Fulcher
tapped his finger on their photographs and said ―three hots and a cot, brother.‖ Fulcher
fabricated the existence of surveillance footage from the restaurant‘s parking lot showing
them returning in his sister‘s truck to the restaurant, defendant and Sanchez getting out
and walking up to Navarrete, and Sanchez shooting him. Fulcher told defendant Sanchez
had turned himself in and confessed to the shooting and that the problem for defendant
was the video showed him walking up to Navarrete with Sanchez. He advised him to
help himself by using his own words to explain what happened.
              Following a 20-second pause, Fulcher said he knew defendant‘s group had
been drinking and ―not thinking straight‖ and were ―pissed off,‖ but that ―[t]he good
thing for you [is] you‘re not the one who . . . pulled the trigger. We . . . know its him and
we‘ve got him. You‘re still involved in this whole thing, and that‘s why its important for
you to kind of lay out in your words what happened. Okay. I know it‘s kind of difficult,
I‘m sure you probably don‘t [want to] talk about it, it‘s uncomfortable, but . . . I mean




                                              7
you came down here I think to clear your conscie[nce], and . . . you‘re about halfway
there, now it‘s time to take that next step; which is the more difficult step. I understand,
especially you, you‘re a young kid, got your whole life ahead of you, . . . but just keep in
mind we know what happened. I‘m just giving you an opportunity to say it in your own
words.‖
              After a 15-second pause, Fulcher asked if it ―would . . . be easier if [he] just
asked [him] questions and [defendant] answere[ed] them?‖ Another 5 seconds ensued
and defendant said something unintelligible, followed by a 20-second pause. Fulcher
then started asking questions beginning with where they obtained the gun. Defendant
answered ―[o]n Myrtle‖ after a 5-second pause.
              Fulcher asked if they called someone in advance or if they just went over to
Myrtle. When defendant did not respond after 30-seconds, Fulcher inquired who actually
obtained the gun, to which defendant immediately responded, Sanchez and that he ―just
had to pick it up from somebody.‖ Defendant did not answer right away whether
Sanchez had to go into a house or if someone just gave him the gun, prompting Fulcher to
say, ―Hey, Ricardo.‖ Defendant said something unintelligible and 5 seconds later,
answered, ―Someone gave him the gun.‖
              Fulcher questioned whether defendant was ―pissed off‖ and after 5-seconds
defendant answered he was. Fulcher said, ―Rightfully so. You‘re only 17,‖ to which
defendant responded, ―Yeah.‖ When asked if defendant‘s group explained why they
needed a gun, defendant said he and Sanchez both did.
              Fulcher inquired where everyone was sitting in the truck and if Sanchez
said what he was going to do. Defendant answered Sanchez said he was ―just gonna
scare this mother fucker‖ and when they returned to the parking lot, the only person they
saw was Navarrete getting into his car. He then described getting out of the car with




                                              8
Sanchez, walking behind Sanchez toward Navarrete, and Sanchez shooting him.
Defendant was shocked and pushed Sanchez when he continued shooting. Defendant
took the gun away from him and told him he was stupid, at which point Sanchez hit him.
Once back in Maria‘s truck, Sanchez took the gun back.
              Maria dropped Sanchez and Rivera off where they obtained the gun and
went home. Maria was scared and suggested they go to the police, which defendant
agreed was the right thing to do. When Fulcher asked if defendant wanted to ―go back
and fuck these guys up,‖ defendant said ―yeah, but . . . not with the strap [i.e., gun].‖
              Fulcher told defendant the law made each of them responsible for the
shooting and asked about Sanchez‘s clothes. Defendant admitted telling Sanchez to get
rid of his clothes so the police could not connect him with the shooting. At the end of the
interview, Fulcher convinced defendant to provide a DNA sample. The probation report
indicates defendant was arrested when the interview ended although a complaint was not
filed against him until four days later.
              At the suppression hearing, the court noted the interview had been ―warm
and fuzzy‖ up to when Fulcher asked where they had picked the gun up and asked
Fulcher if he would have allowed defendant to leave at that point. Fulcher responded that
he would not have handcuffed him but would have contacted the lead detective for
instructions and they might have stopped him ―before he made the parking structure, or
something like that‖ or they could have obtained a warrant and picked him up later.
              Defendant then testified he had discussed what happened with his sister and
they both decided it would be best for him to go in because he ―had nothing to hide‖ and
did not kill Navarrete. When they asked him at the station why he was there, he told
them he was ―there to tell the truth what happened . . . about the incident.‖ He had been
under the influence of methamphetamine, alcohol, and marijuana during the interview,




                                              9
although he did not tell Fulcher that; he ―was nervous[ and] . . . just want[ed] to say the
truth.‖ After the interview, defendant still believed he had nothing to fear or hide by
going to the police department.
              The court found defendant had conducted himself well during the interview
despite his age of 17 and purported substance abuse. Although J.D.B. v. North Carolina
(2011) 564 U.S. ___ [131 S.Ct. 2394, 180 L.Ed.2d 310] (J.D.B.) required it to consider a
juvenile‘s age in its Miranda analysis, the court noted no special rules govern whether a
juvenile is in custody. In light of these circumstances, plus the fact defendant entered the
police station voluntarily, which ―change[d] the issue pretty significantly,‖ the court
denied the suppression motion.


              b. Legal Principles
              A person subjected to custodial interrogation must be given Miranda
warnings apprising the person of his or her right to remain silent, that any statement the
person makes may be used against the person and that the person has the right to counsel,
retained or appointed. (Miranda, supra, 384 U.S. at pp. 444-445.) ―[C]ustodial
interrogation . . . means, ‗questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any
significant way.‘ [Citation.] In determining whether an individual was in custody, a
court must examine all of the circumstances surrounding the interrogation, but the
ultimate inquiry is simply whether there was a ‗―formal arrest or restraint on freedom of
movement‖ of the degree associated with a formal arrest.‘ [Citations.] The deprivation
can be constructive as well as actual. ‗[C]ustody occurs if the suspect is physically
deprived of his freedom of action in any significant way or is led to believe, as a




                                             10
reasonable person, that he is so deprived.‘‖ (In re Kenneth S. (2005) 133 Cal.App.4th 54,
64 (Kenneth S.).)
              The test to determine whether a custodial interrogation has triggered the
necessity of Miranda warnings is objective: ―The objective circumstances of the
interrogation, not the subjective intention of the interrogating officer or the subjective
understanding of the person being questioned, is evaluated in determining whether the
person was in custody at the time of the questioning. ‗A policeman‘s unarticulated plan
has no bearing on the question whether a suspect was ―in custody‖ at a particular time‘;
rather, ‗the only relevant inquiry is how a reasonable man in the suspect‘s position would
have understood his situation.‘‖ (Kenneth S., supra, 133 Cal.App.4th at p. 64.) ―In
considering a claim that a statement or confession is inadmissible because it was obtained
in violation of a defendant‘s rights under Miranda . . . ‘[w]e must accept the trial court‘s
resolution of disputed facts and inferences, and its evaluations of credibility, if they are
substantially supported. [Citations.] However, we must independently determine from
the undisputed facts, and those properly found by the trial court, whether the challenged
statement was illegally obtained.‘ [Citations.] We apply federal standards in reviewing
defendant‘s claim that the challenged statements were elicited from him in violation of
Miranda.‖ (People v. Bradford (1997) 14 Cal.4th 1005, 1032-1033.)


              c. Analysis
              Defendant argues the court erred in concluding no interrogation occurred
and that he was not in custody because the voluntary encounter became a custodial
interrogation. We reject his claim he was in custody after Fulcher ―confronted [him] with
evidence of guilt in the bowel‘s [sic] of the police department in an interrogation room‖
and thus need not discuss whether defendant was subjected to interrogation.




                                              11
              Regarding whether defendant was in custody, defendant contends the court
erroneously looked at Fulcher‘s subjective belief and ignored defendant‘s age. Neither
assertion persuades us to reverse.
              We agree with defendant that Fulcher‘s subjective belief about defendant‘s
custodial status was not relevant to whether defendant was actually in custody because
the determinative question is how a reasonable person in the defendant‘s position would
view the circumstances. (Kenneth S., supra, 133 Cal.App.4th at p. 64.) But asking
Fulcher what he would have done had defendant attempted to leave does not mean the
court relied on that to make its determination. If it had, it probably would have
concluded defendant was in custody given Fulcher‘s statements that although he would
not have handcuffed him, he would have contacted the lead detective for instructions and
they might have stopped him ―before he made the parking structure.‖ In fact, the court
noted that ―once inculpatory statements start to be made [Fulcher] should have then said,
‗well, here is your Miranda.‘‖ It found, however, the fact defendant voluntarily walked
in to the police station made ―a big, big difference.‖
              In this regard, Kenneth S., supra, 133 Cal.App.4th 54, is instructive. There,
a police officer telephoned a minor‘s foster mother and asked if she would voluntarily
bring the minor and his brother to the police station for questioning about ―‗crimes that
had occurred in the neighborhood.‘‖ At 7:00 the following morning, the foster mother
brought the boys to the station. They were all buzzed into a security area and taken
upstairs to an area where civilians were not allowed to ―‗just roam around.‘‖ (Id. at p.
59.) The foster mother agreed to allow the detective to speak to the minor alone. The
two boys were escorted to separate rooms. The minor was placed in a small room with
the door partially open. The foster mother was put in a room about 10 feet away. The
interview with the minor was recorded. The detective thanked him for volunteering to




                                             12
come to the station, and told him he was not under arrest and was free to leave at any
time. (Ibid.) Miranda warnings were not given before the interview. Twenty-five
minutes into the interview, the detective began asking about the robbery which he was
investigating. Eventually the minor admitted the robbery. (Ibid.) At that point, he was
given his Miranda rights and was detained. (Id. at p. 60.)
              Kenneth S. concluded that the minor was subjected to neither actual nor
constructive restriction on his freedom. He came to the station voluntarily with his foster
mother. The detective told him he was not under arrest and was free to leave. (Kenneth
S., supra, 133 Cal.App.4th at p. 65.) The court held that the fact the interview took place
in the police station did not demonstrate a constructive restriction on the minor‘s freedom
and a reasonable person in the minor‘s position would not have understood he was in
custody within the meaning of Miranda. (Ibid.)
              Similarly, here, defendant testified at the suppression hearing that he
voluntarily went to the police station ―to tell the truth [about] what happened‖ because he
―had nothing to hide‖ and did not kill Navarrete. He was not physically restrained at any
time. He was placed in an interview room and told he was not in custody or under arrest,
could leave at any time, and that the door was closed only for privacy reasons. As in
Kenneth S., there is no evidence defendant was actually or constructively restrained. In
fact, defendant testified that even after the interview he did not believe he had anything to
fear or hide by going to the police department. We conclude that a reasonable person in
defendant‘s position would not have understood he was in custody under the totality of
these circumstances.
              Defendant distinguishes Kenneth S. on the basis the interview door there
was partially open, his foster mother only 10 feet away, and the detective stated ―he had
information that [Kenneth S.] was involved in‖ a robbery (Kenneth S., supra, 133




                                             13
Cal.App.4th at p. 59), whereas here defendant was ―interrogated in a closed room in the
interior of the police department with no one nearby . . . [a]nd Fulcher did not merely tell
[him] that he had information that he was involved in a crime[ but] . . . repeatedly
confronted [him] with specific evidence of his guilt in a murder case.‖ But Fulcher
explained to defendant the door was only closed for privacy reasons, which implies he
would have opened it had defendant asked. Additionally, defendant‘s sister was nearby
in the station, having accompanied him there, and there is no evidence she asked to go
with him to the interview room. As to confronting defendant with evidence showing
guilt, that goes toward the issue of whether an interrogation occurred, not whether it was
in a custodial setting. Here, defendant was not formally arrested, restrained from moving
in any way, or led to believe, as a reasonable person, that he was physically deprived of
his freedom of movement. (Kenneth S., supra, 133 Cal.App.4th at p. 64.) We see no
basis to distinguish the holding in Kenneth S.
              Defendant maintains his custodial status was demonstrated by the fact ―[h]e
could not use the restroom unless Fulcher accompanied him, and he could not open the
door on his own.‖ But that is not what the record reflects. When defendant asked if he
could use the restroom, Fulcher said, ―Yeah, absolutely,‖ and then asked if he wanted to
―do that right now or . . . wait until I get that [consent to take his DNA] form and come
back?‖ When defendant said he did not know, Fulcher asked if he had to ―go real bad,‖
to which defendant responded he ―could wait.‖ Although Fulcher closed the door behind
him as he left the room, he told defendant to knock if he needed anything because they
could not allow people to wander the halls. Defendant answered, ―Alright.‖ The tone of
this colloquy was not confrontational and gave defendant the options of when to go to the
restroom and to request anything he needed by knocking on the door; it does not suggest
a reasonable juvenile in defendant‘s position would feel that he was not free to leave.




                                             14
              Defendant contends the court also erred by failing to apply the test set forth
by J.D.B., supra, 564 U.S. __ [131 S.Ct. 2394], which held that a juvenile suspect‘s age
must be taken into account when considering the Miranda custody analysis. (Id. at p. __
[131 S.Ct. at pp. 2402-2403].) But the court pointed out ―[t]his is not to say that a child‘s
age will be a determinative, or even a significant, factor in every case‖ (id. at p. 2406)
and the majority specifically noted that omitting a suspect‘s age was not unreasonable
when the suspect ―‗was almost 18 years old at the time of his interview‘‖ (ibid.). The
record here similarly demonstrates that on the date of his interview at the station
defendant was less than three months short of his 18th birthday. It thus would not have
been unreasonable for the court to have not considered his age. Moreover, it did consider
it, expressly noting how well defendant conducted himself during the interview despite
his age and claim that he was high and drunk. In light of this, we reject defendant‘s claim
the court did not consider his age just because it said ―juvenile[s do] not having any
special rules for determining whether someone is in custody or not.‖
              People v. Boyer (1989) 48 Cal.3d 247, overruled on another point in People
v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1, cited by defendant, is distinguishable.
There, the police detained the defendant as he attempted to leave his home by the
backdoor, other officers having sought entry at the front door. The defendant agreed to
accompany officers to the police station where he was subjected to more than an hour of
intense and accusatory questioning. The officers directly accused the defendant of the
homicide under investigation and told him they possessed undisclosed information
incriminating him and that he would be unable to live with himself if he did not confess.
The officers proclaimed they knew the defendant was guilty, they intended to charge him,
and expressed confidence their evidence would hold up in court. Perhaps most
importantly, the officers rebuffed the defendant‘s requests to have a lawyer present and to




                                             15
end the interview altogether, demonstrating he was at the mercy of the police in
circumstances tantamount to formal arrest.
              Here, in contrast, defendant was not detained as he tried to leave his home
or pressured by police to go to the police station but instead went there of his own accord.
He shared his story voluntarily and was expressly told he was not under arrest, was free
to leave, and that the door was closed only for privacy reasons. Fulcher never raised his
voice or became confrontational during the hour-long interview. Nor did defendant ask
to end the interview. Further, unlike in Boyer, the police did not repeatedly ignore
statements that he wanted a lawyer and did not want to talk to them further.
              We conclude the interview of defendant was not custodial and did not
trigger the need for Miranda warnings. Because the trial court thus did not err in denying
his suppression motion, his petition for writ of habeas corpus on this ground fails.


2. Sufficiency of the Evidence to Support Enhancements
              Defendant contends insufficient evidence supports the jury‘s finding he
specifically intended to promote, further, or assist a gang member‘s criminal conduct as
required for the gang enhancement under section 186.22, subdivision (b) and the
vicarious firearm discharge enhancement under 12022.53, subdivision (d) and (e)(1).
(See People v. Mejia (2012) 211 Cal.App.4th 586, 614-615.) We disagree.
              The gang enhancement under section 186.22, subdivision (b)(1) requires
proof the crime for which the defendant was convicted had been ―committed for the
benefit of, at the direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang
members . . . .‖ The enhancement thus has two prongs—the benefit prong and the intent




                                              16
prong. (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) Defendant disputes only
the latter.
              In particular, defendant notes there was no evidence Navarrete‘s family
knew defendant or Sanchez were gang members, no percipient witness saw anyone flash
a Central Myrtle hand sign in the restaurant despite a surveillance video showing an
unknown person making the sign, and that neither he nor Sanchez identified their gang
affiliation when Sanchez shot Navarrete. But nothing in the statute requires defendant
promote the gang during the offense, only that he promote (or further or assist) criminal
conduct by a gang member. (People v. Albillar (2010) 51 Cal.4th 47, 64-67.) This is
most often satisfied by evidence the defendant committed the crime with other known
gang members. From evidence ―the defendant intended to and did commit the charged
felony with known members of a gang, the jury may fairly infer that the defendant had
the specific intent to promote, further, or assist criminal conduct by those gang
members.‖ (Id. at p. 68; see also People v. Livingston (2012) 53 Cal.4th 1145, 1171
[―‗[I]f substantial evidence establishes that the defendant intended to and did commit the
charged felony with known members of a gang, the jury may fairly infer that the
defendant had the specific intent to promote, further, or assist criminal conduct by those
gang members‘‖].) Here, defendant concedes he committed the offense with Sanchez, an
active gang member. Accordingly, defendant‘s intent can be inferred from the
circumstances of the offense. The second prong was satisfied by substantial evidence.
              Defendant relies on In re Daniel C. (2011) 195 Cal.App.4th 1350 and
People v. Ramon (2009) 175 Cal.App.4th 843 (Ramon) to argue there was no evidence he
had the specific intent to benefit the Central Myrtle gang. His reliance on these cases is
misplaced. In re Daniel C. concluded the evidence was insufficient to support the
specific intent element of the gang enhancement, noting there was no evidence the




                                             17
defendant was acting in concert with his companions when he robbed a liquor store and
no evidence that his companions committed or were charged with any crime. (Daniel C.,
at pp. 1359-1364.) The same is not true here. In Ramon, the defendants, members of the
same gang, stole a truck together. A gang expert testified that the crime benefitted the
gang because they could commit other crimes with the stolen truck. Ramon held that the
expert‘s opinion was improper because there were no facts from which he could discern
whether the men were acting on their own behalf or on behalf of the gang. (Ramon, at p.
851.) Ramon‘s focus was on the sufficiency of the evidence showing that the crime was
committed for the gang‘s benefit. (Id. at p. 849.) But to the extent Ramon addressed the
specific intent issue, Ramon appears to have framed the issue differently; namely,
whether the defendant had the specific intent to promote the criminal street gang (id. at
pp. 849, 853) as opposed to whether the defendant had the specific intent to promote,
further or ―assist criminal conduct by gang members‖ (§ 186.22, subd. (b)(1)). When the
issue is framed as whether defendant intended to promote or to benefit the gang, then
Ramon‘s conclusion that there was insufficient evidence is understandable, because there
was no evidence that gang slogans were shouted or of other indicia that commonly denote
a gang crime. It becomes less so when the issue is framed according to the actual
language of the statute.
              We are satisfied that substantial evidence supports the jury‘s true finding on
the gang allegation and thus affirm its findings on the enhancements under both sections
186.22, subdivision (b)(1) and 12022.53, subdivisions (d) and (e)(1).


3. Constitutionality of Section 12022.53 as Applied to Juveniles
              The court sentenced defendant to a mandatory 15-year-to-life term for the
second degree murder and a mandatory 25-year-to-life term under section 12022.53,




                                            18
subdivisions (d) and (e)(1), resulting in a mandatory sentence of 40 years to life.
Defendant contends this sentence violates the Eighth Amendment because ―section
12022.53‘s mandatory sentencing scheme is unconstitutional as applied to juveniles[, as
it] . . . eliminated the trial court‘s discretion to consider the mitigating circumstances of
[defendant‘s] youth.‖ (Bold omitted.) He acknowledges he did not object to the
enhancement on that ground and, therefore, ―technically forfeited his Eighth Amendment
challenge to his 40-years-to-life sentence‖ but urges us to reach the merits of his claim to
avoid an ineffective assistance of counsel claim. We shall consider the argument on the
merits.
              Defendant relies on recent federal and state high court case law, namely
Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller),
Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct 2011, 176 L.Ed.2d 825] (Graham), and
People v. Caballero (2012) 55 Cal.4th 262 (Caballero), for the proposition that the court
must have discretion to consider the mitigating circumstances of his youth. But these
cases are distinguishable because they involved juveniles whose sentences were either (1)
life without possibility of parole (LWOP) (Miller, at p. 2460; Graham, at p. 2020) or (2)
a term of years so long as to be the functional equivalent of LWOP (Caballero, at p. 268).
As we recently explained, the cases dealing with the permissible length of a juvenile
offender‘s sentence ―follow a remarkably consistent pattern. There is a bright line
between LWOPs and long sentences with eligibility for parole if there is some
meaningful life expectancy left when the offender becomes eligible for parole. We are
aware of—and have been cited to—no case which has used the . . . Graham–Miller–
Caballero line of jurisprudence to strike down as cruel and unusual any sentence against
anyone under the age of 18 where the perpetrator still has substantial life expectancy left




                                              19
at the time of eligibility for parole.‖ (People v. Perez (2013) 214 Cal.App.4th 49, 57, fn.
omitted (Perez).)
              In Perez, we rejected an Eighth Amendment challenge by a 16-year-old
defendant who had been sentenced to a term of 30 years to life in prison. (Perez, supra,
214 Cal.App.4th at pp. 51, 57-58.) We acknowledged that ―[h]ow much life expectancy
must remain at the time of eligibility for parole of course remains a matter for future
judicial development,‖ but because the defendant there would be eligible for parole when
he reached the age of 47, we held ―there is plenty of time left for Perez to demonstrate, as
the Graham court put it, ‗some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.‘‖ (Id. at pp. 57-58.) Because the defendant‘s
sentence could not be considered a ―‗functional‘‖ or ―‗de facto‘ LWOP,‖ neither Miller,
Graham, nor Caballero applied. (Perez, at p. 58.)
              Similarly, here, defendant was 17 years old at the time of his offense and
sentenced to 40 years plus was given 574 days of credit for time served. He will become
eligible for parole long before the end of his life expectancy. Like the juvenile defendant
in Perez, defendant will have ample time to obtain release based on demonstrated
maturity and rehabilitation. (Perez, supra, 214 Cal.App.4th at pp. 57-58.) Thus, for the
reasons stated in Perez, we conclude that the Graham–Miller–Caballero line of cases
does not assist defendant.
              Defendant maintains in both his direct appeal and his writ of habeas corpus
petition that his own research shows his life expectancy is 33.3 years. He cites the 2005
Federal Sentencing Sourcebook and claims his sentence is functionally equivalent to life
without parole.
              We reject the claim because defendant has not (1) attached either the
sourcebook or the relevant pages of the sourcebook to his opening brief or habeas corpus




                                             20
petition, (2) demonstrated the relevancy of 2005 federal sentencing statistics to
defendant‘s 2012 sentence in this California case, or (3) cited the most recent 2012
edition of the Federal Sourcebook, which can be found at
http://www.ussc.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/2012/sbtoc
12.htm. As the Attorney General notes, the 2012 edition reports that only 2.2 percent of
the male offenders in the study were under 21 years old (id. at table 7) and thus does not
support defendant‘s claim he will die in prison in 33.3 years.


4. Cruel and Unusual Punishment
              Defendant argues his sentence of 40 years to life violates the ban on cruel
and unusual punishment under the California Constitution because it was grossly
disproportionate to his culpability. Again we address the contention despite defendant‘s
failure to object in the trial court given the ineffective assistance of counsel claim made
in his writ of habeas corpus petition.
              The basic test of a cruel or unusual punishment under the California
Constitution is whether it is so disproportionate to the crime as to shock the conscience
and offend fundamental notions of human dignity. (People v. Dillon (1983) 34 Cal.3d
441, 478; In re Lynch (1972) 8 Cal.3d 410, 424.) The defendant must demonstrate the
punishment is disproportionate in light of (1) the nature of the offense and defendant‘s
background, (2) more serious offenses, or (3) similar offenses in other jurisdictions.
(Lynch, at pp. 425-427.) The record must be viewed in the light most favorable to the
sentence (People v. Martinez (1999) 76 Cal.App.4th 489, 496), and defendant must
overcome a considerable burden in convincing us that his sentence is disproportionate
(People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197).




                                             21
              Defendant addresses only the first Lynch factor, contending his ―sentence is
grossly disproportionate to his individual culpability because (1) he was a juvenile when
he committed the offense, and (2) his accomplices‘s sentences were comparatively
disproportionate relative to their culpability.‖ But courts have upheld consecutive
sentences for murder and firearm use enhancements even as applied to juveniles. In
People v. Em (2009) 171 Cal.App.4th 964, we affirmed two consecutive 25-year-to-life
sentences imposed on a 15-year-old gang member for actively aiding and abetting felony-
murder and a firearm enhancement under section 12022.53, noting ―a sentence
enhancement of 25 years to life is not disproportionate to a violation of . . . section
12022.53; the Legislature has determined that a significant increase in punishment is
necessary and appropriate to protect citizens and deter violent crime.‖ (People v. Em, at
p. 973; see also People v. Demirdjian (2006) 144 Cal.App.4th 10, 12-13.)
              Moreover, the record supports the court‘s finding that ―during this entire
process [defendant] was present and giving guidance and direction to the shooter. The
conduct of the defendant was cold blooded and cowardly. [¶] The victim . . . was
particularly vulnerable because he was unarmed, he was an innocent bystander, and at the
complete mercy of the defendant and his co-conspirators. The evidence was clear that
the manner in which the crime was carried out indicates planning and sophistication and
with a calculated effort.‖ In this regard, defendant was the one who pointed out
Navarrete‘s vehicle when he and his cohorts returned to the restaurant. He stood behind
Sanchez when Sanchez shot at Navarrete and his family, and when Sanchez was out of
bullets, lowered Sanchez‘s gun, directed him back to the escape vehicle, and told Sanchez
to dispose of his clothing so he could not be connected to the shooting.
              The court further found defendant, although only 17 years old when he
committed the offenses in this case, had already demonstrated he posed ―a serious danger




                                             22
to society. [¶] . . . By his own statements and testimony, he has chosen the criminal street
gang lifestyle, and he claimed that lifestyle in 2009 and 2010.‖ The probation report
confirms ―[t]he violent nature of the instant offense demonstrates his behavior has
escalated to a level which endangers the community . . . [and] his poor progress on
probation clearly demonstrates it is no longer possible to safely supervise him at the local
level.‖
              Defendant analogizes this case to People v. Dillon, supra, 34 Cal.3d 441, in
which the California Supreme Court found punishment for first degree murder
constituted cruel and unusual punishment where the defendant was an unusually
immature 17 year old, in no prior trouble with the law, who shot the victim in response to
a suddenly developing situation which he perceived as threatening to his own life; while
defendant largely created the threatening situation, his immaturity prevented him from
seeing the risk he created or from extricating himself from the situation without
panicking. (Id. at p. 488.) Here, by contrast, there is no evidence that defendant was
unusually immature and the court found to the contrary. He did not act in panic to defend
himself but purposely went back to the restaurant with Sanchez, knowing Sanchez was
armed. He had a history of gang involvement and criminal behavior and had just been
released from juvenile hall three days before the shooting in this case. People v. Dillon
thus does not aid defendant.
              In both his direct appeal and his writ of habeas corpus petition, defendant
compares his sentence with those received by Maria and Sanchez, of which we granted
his request for judicial notice, and the fact Rivera was not charged with any crime. The
California Supreme Court has ―‗consistently rejected the contention that intercase
proportionality review is required‘ [citation], even as to codefendants.‖ (People v.
Gurule (2002) 28 Cal.4th 557, 663.) In any event, Maria‘s case was different because




                                             23
she pleaded guilty to voluntary manslaughter and a gang enhancement and in exchange
received a 16-year sentence. That does not show defendant‘s sentence was
disproportionate to hers. As to Rivera, defendant acknowledges it is unclear what role
Rivera played in the shooting and the prosecutor may not have filed charges against him
for that reason. Regardless, the decision regarding who to prosecute and what to charge
is a matter within the prosecutor‘s discretion (People v. Cheaves (2003) 113 Cal.App.4th
445, 453), and a comparison of the prosecutor‘s decision with respect to Maria and
Rivera does not establish defendant received a grossly disproportionate or shocking
punishment.
               Defendant also measures his sentence against the one Sanchez received, a
maximum life sentence of 50 years to life for first degree murder and personally
discharging a firearm. But because Sanchez was more culpable as the one who fired the
gun, he received a higher sentence; by contrast defendant is eligible for probation 10
years earlier than Sanchez. Defendant does not explain how that is disproportionate
relative to their culpability.
               Perez was ―not among those ‗exquisitely rare‘ cases which merit reversal
on traditional disproportionality review.‖ (Perez, supra, 214 Cal.App.4th at p. 60.)
Neither is this case.


5. Ineffective Assistance of Counsel
               In his writ of habeas corpus petition, defendant asserts his counsel was
ineffective because he failed to argue his sentence was unconstitutional under Miller,
supra, 567 U.S. __ [132 S.Ct. 2455], and did not present mitigating evidence of
defendant‘s youth and inexperience. To prevail on a claim of ineffective assistance,
defendant must show his attorney‘s representation fell below an objective standard of




                                             24
reasonableness and that he suffered prejudice as a result. (Strickland v. Washington
(1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Ledesma (1987)
43 Cal.3d 171, 216-217.) Defendant failed to satisfy his burden.
              We have already concluded Miller does not apply to make section
12022.53‘s mandatory sentencing scheme unconstitutional. Because defendant‘s
sentence was not unconstitutional, it follows that his counsel was not ineffective for
failing to argue that it was. And given that defendant‘s sentence was statutorily
mandated, trial counsel‘s decision not to present evidence of defendant‘s youth and
inexperience was entirely reasonable, notwithstanding counsel‘s declaration that he ―had
no tactical reason for not presenting mitigating evidence at [defendant‘s] sentencing
hearing[ because he] assumed that the statutorily mandated sentence mooted arguments
in mitigation.‖


                                      DISPOSITION


              The judgment is affirmed. The petition for a writ of habeas corpus is
denied.


                                                 RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



IKOLA, J.




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