Filed 6/27/13 P. v. Reyes CA4/3
Opinion following recall of remittitur




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G039743

         v.                                                            (Super. Ct. No. 05WF3659)

JUAN MANUEL REYES,                                                      OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Frank F.
Fasel, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part and
remanded for resentencing.
                   Marilee Marshall for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
                  This is the second opinion we have written in this case. In our first opinion,
we upheld the convictions of appellant Juan Manuel Reyes and his codefendant Jesus
Antonio Guerrero for first degree murder and other crimes stemming from their
participation in a gang-related shooting. (People v. Guerrero, et al. (Mar. 16, 2010,
G039743) [nonpub. opn.].) After that opinion became final, Reyes hired a new attorney
and filed a motion to recall the remittitur on the basis his prior attorney was ineffective
for failing to raise certain issues on appeal. We granted the motion, reinstated the appeal
and ordered supplemental briefing. Although we conclude Reyes’ sentence must be
vacated and the matter must be remanded for resentencing, we affirm the judgment in all
other respects.1
                                                          FACTS
                  On December 1, 2005, Reyes and Guerrero were 17 and 20 years old,
respectively. They were also members of Hard Times, a criminal street gang that claims
territory in Garden Grove, including Santiago High School. That day, Reyes “hit up” 16-
year-old Abraham Ortega at the school by asking him what gang he was in. When
Ortega replied “Santa Nita,” a rival outfit, Reyes said, “Fuck Santa Nita, this is Hard
Times.” However, before anything further transpired, campus security showed up and
defused the situation.
                  Five days later, shortly after school let out, the gangs crossed paths again.
Santos Gomez arrived at the rear of the school with fellow Santa Nita members Alejandro
Chavez and Danny Funes in tow. Funes crossed out some Hard Times graffiti that was
on a wall and replaced it with “VSN,” which stands for Varrio Santa Nita, and the words




         1
                   This opinion concerns Reyes only. It does not affect codefendant Guerrero or have any bearing on
the first opinion we rendered in this case. However, because this opinion is based on the same record as the first
opinion, we take judicial notice of our earlier decision and draw on it for our facts. (Evid. Code, §§ 452, subd. (d),
459, subd. (a).)


                                                          2
“now what?” It didn’t take long before the group, which soon included Ortega, drew the
attention of others.
              Hard Times member Juan Manzanares spotted them first. He talked to
Baltazar Moreno about the situation, and the two of them tracked down Reyes, who was
hanging out at the school quad with several other Hard Times members. Manzanares told
Reyes about the Santa Nita members, whom he derogatorily referred to as “chonklas,”
and said, “[W]e are going to get them.” Manzanares, Reyes and Moreno then set off to
confront their rivals.
              As they made their way to the back of the school, Manzanares phoned
Guerrero several times. He told him where the Santa Nita members were and urged him
to bring a gun to that location. But Manzanares didn’t wait for Guerrero to arrive before
instigating a confrontation. With Reyes and Moreno at his side, he asked Ortega where
he was from. Ortega said Santa Nita, and one of his companions made a gang sign with
his fingers. Moreno then yelled out, “Fuck Santa Nita, this is Hard Times,” and with that,
the two groups started fighting.
              Santa Nita initially had a four-to-three advantage in terms of manpower, but
Hard Times supporter Rene Garcia soon joined in to even the numbers. At one point
during the fight, someone from Hard Times said something like, “Where the fuck is
Abel?” Then Guerrero, whose nickname is “Evil,” and fellow Hard Times member
Armando Solano came running up to the scene. Guerrero was holding a gun, and upon
seeing him, the four Santa Nita members retreated to Gomez’s nearby jeep. As they
started to drive away, Solano told Guerrero “not to do it here,” but someone else yelled
“dump on them.” At that point, Guerrero fired several shots at the jeep, one of which
struck and killed Ortega.
              Gang expert Jonathan Wainwright testified to the rivalry between Hard
Times and Santa Nita, describing them as “turf-orientated” Hispanic street gangs. He
also described the criminal activities of Hard Times, explaining that gang members often

                                            3
commit acts of violence to induce fear and achieve respect in the community. Based on
the circumstances of this case, Wainwright believed Reyes acted in association with, and
for the benefit of, Hard Times. In fact, he said Reyes’ actions were indicative of “a
classic gang hit-up which ultimately ended in a homicide.”
                  Reyes, Guerrero, Moreno, Garcia, Manzanares and Solano were jointly
charged with first degree murder, three counts of attempted premeditated murder,
shooting at an occupied vehicle, shooting in a school zone and street terrorism. Gang and
firearm enhancements were also charged, as was the special circumstance allegation that
defendants intentionally committed the murder while they were active participants in, and
to further the activities of, a criminal street gang.
                  Before trial, Moreno and Garcia pleaded guilty to manslaughter. Reyes,
Guerrero and Solano were then jointly tried, and Manzanares was tried separately.
Solano was only convicted of street terrorism, but Reyes, Guerrero and Manzanares were
convicted as charged and sentenced to life in prison without the possibility of parole.2
                                                       I
                  Reyes argues his prior appellate attorney was ineffective for failing to raise
certain claims on his behalf. (See generally In re Smith (1970) 3 Cal.3d 192, 202-203
[appellate counsel has a duty “to raise crucial assignments of error, which arguably might
have resulted in a reversal”].) Those claims relate to both the jury instructions that were
given at his trial and the sentence that he received. We will start with the instructional
claims.
                  In reviewing those claims, we must keep in mind that jury instructions
“‘should be interpreted, if possible, so as to support the judgment rather than defeat it if


         2
                 We grant Reyes’ request to take judicial notice of Manzanares’ appeal in People v. Manzanares
(Mar. 19, 2010, G040381) [nonpub. opn.]. Although our opinion in that case was not published and thus does not
have any precedential value (Cal. Rules of Court, rule 8.1115(a)), it is the proper subject of judicial notice. (Evid.
Code, §§ 452, subd. (d), 459, subd. (a); People v. Wensinger (2012) 204 Cal.App.4th 90, 95, fn. 2; In re Kinney
(2011) 201 Cal.App.4th 951, 954, fn. 3.)


                                                           4
they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Martin
(2000) 78 Cal.App.4th 1107, 1111-1112.) We “‘“assume that the jurors are intelligent
persons and capable of understanding and correlating all jury instructions which are
given. [Citation.]”’ [Citation.]” (Id. at p. 1111.) In determining whether instructional
error has occurred, we must consider the record as a whole, including the specific
language challenged, other instructions given, and the arguments of counsel. (People v.
Cain (1995) 10 Cal.4th 1, 36-37; People v. McPeters (1992) 2 Cal.4th 1148, 1191.)
Unless there is a reasonable likelihood the jury misunderstood the challenged instruction
in a manner that violated defendant’s rights, we must uphold the court’s charge to the
jury. (Ibid.)
                At trial, the prosecution theorized Reyes aided and abetted Guerrero in
carrying out the shooting. Consistent with that theory, the trial court instructed on aiding
and abetting and the natural and probable consequences doctrine. (CALCRIM Nos. 401
& 403.) Reyes does not challenge those instructions. However, he maintains the court’s
instructions on the special circumstance allegation were defective because they failed to
inform the jury that, in order to find the allegation true, it had to find he personally
intended to kill Ortega. We believe the court’s instructions adequately conveyed this
requirement.
                Reyes and Guerrero were charged with the special circumstance allegation
applicable to gang-related murders set forth in Penal Code section 190.2, subdivision
(a)(22).3 By its terms, that provision applies when “[t]he defendant intentionally killed
the victim while the defendant was an active participant in a criminal street gang . . . and
the murder was carried out to further the activities of the criminal street gang.” (§ 190.2,
subd. (a)(22).) This provision can be applied to both the actual killer and an aider and




       3
                All further statutory references are to the Penal Code.


                                                        5
abettor, but only if they both possessed the intent to kill. (§ 190.2, subd. (c); People v.
Ybarra (2008) 166 Cal.App.4th 1069, 1085-1086.)
                Here, the court told the jury that in order to establish the special
circumstance is true, “the People must prove that: Number one, the defendant
intentionally killed Abraham Ortega; number two, at the time of the killing the defendant
was an active participant in a criminal street gang; number three, the defendant knew that
members of the gang engage in or have engaged in a pattern of criminal gang activity;
and, number four, the murder was carried out to further the activities of the criminal
street gang.”
                Since Guerrero is the person who “killed Abraham Ortega,” Reyes argues it
is likely the jury applied this instruction to Guerrero and not him. However, the trial
court instructed the jury, “The word defendant applies to each defendant unless you are
instructed otherwise.” The jury was never told the word defendant in the special
circumstances instruction only applied to Guerrero. Therefore, it is not likely it applied
the instruction in such a narrow fashion. (See generally People v. Mickey (1991) 54
Cal.3d 612, 689, fn. 17 [“The crucial assumption underlying our constitutional system of
trial by jury is that jurors generally understand and faithfully follow instructions”].)
                Reyes points out that, in closing argument, the prosecutor informed the jury
that Reyes did not have to share Guerrero’s intent to be liable under the natural and
probable consequences doctrine. Speaking to the liability of an aider and abettor under
that doctrine, the prosecutor stated, “You don’t have to share the perpetrator’s intent. Mr.
Guerrero may have intended all along to go out there and kill. You step into the shoes of
the perpetrator. So if you . . . know he has an intent to go out and commit a battery or an
assault and you facilitate that, you step into the shoes of the perpetrator and we get this
extended liability. Natural and probable consequences.”
                In light of this argument, Reyes fears the jury may have applied the natural
and probable consequences doctrine to the special circumstances allegation and found the

                                                6
allegation true as to him without finding he possessed the requisite intent to kill.
However, in making the above argument, the prosecutor was talking about Reyes’
culpability on the substantive charges, more specifically his culpability for the “aiding
and abetting of a murder.” The prosecutor did not start discussing the special
circumstances allegation until much later in his argument. (Compare People v.
Manzanares, supra, G040381 [reversing true finding on gang special circumstance
allegation as to Manzanares where prosecutor explicitly urged the jury to find the
allegation true as to him based solely on the mental state of Guerrero].)
              Moreover, the jury instruction on the natural and probable consequences
doctrine was properly limited to the substantive charges. At no time was the jury ever
told it could apply the doctrine to the special circumstances allegation, and we do not
believe it is reasonably likely the jury did so. Considering the instructions as a whole, we
are convinced that, in finding the special circumstances allegation true as to Reyes, the
jury necessarily determined he possessed the requisite intent to kill. There is no basis for
disturbing the jury’s finding in that regard.
                                           II
              Next, Reyes contends the court’s instructions on self-defense and the
defense of others were unduly restrictive in terms of describing the law on antecedent
threats. Although the jury was instructed to consider whether the victim Ortega
threatened or harmed Guerrero in the past in deciding whether Guerrero’s conduct and
beliefs were reasonable, Reyes claims the instruction did not go far enough because it did
not allow the jury to consider prior threats that were made by Ortega’s fellow gang
members in assessing the reasonableness of Guerrero’s actions. The argument fails on
several grounds.
              First, there is no evidence Guerrero ever received any prior threats from
Ortega’s fellow gang members.



                                                7
               Second, the underlying legal premise of Reyes’ argument is faulty. He
assumes he was entitled to the benefit of any defenses that were applicable to Guerrero,
the shooter. However, an aider and abettor does not get the benefit of defenses that are
pertinent only to the person who carries out the crime. (People v. McCoy (2001) 25
Cal.4th 1111, 1122 [aider and abettor could properly be convicted of murder even if
actual perpetrator acted in unreasonable self-defense and was thus guilty only of
manslaughter].) Therefore, even if there had been evidence that Guerrero had received
prior threats from Ortega’s fellow gang members, that evidence would not necessarily
mitigate Reyes’s culpability.
               Third, the record belies Reyes’ claim the court’s instructions on antecedent
threats was limited to threats made by Ortega. Pursuant to CALCRIM No. 505, the court
instructed the jury the defendant was justified in using deadly force if he reasonably
believed he or someone else was in imminent danger of being killed or suffering great
bodily injury. As part of that instruction, the court stated, “If you find that Abraham
Ortega threatened or harmed the defendant or others in the past, you may consider that
information in deciding whether the defendant’s conduct and beliefs were reasonable. If
you find that the defendant knew that Abraham Ortega had threatened or harmed others
in the past, you may consider that information in deciding whether the defendant’s
conduct and beliefs were reasonable.”
               Although Ortega was the only person specifically identified in the above
instructions, the court gave other instructions that expanded on the antecedent threats
doctrine. Particularly, the court told the jury, “Someone who has been threatened or
harmed by a person in the past is justified in acting more quickly or taking greater self-
defense measures against that person. [¶] If you find the defendant received a threat from
someone else that he reasonably associated with Abraham Ortega, you may consider that
threat in deciding whether the defendant was justified in acting in self-defense or defense
of another.”

                                             8
              These instructions clearly signaled to the jury that Ortega was not the only
person whose prior threats may have mattered in the case. Rather, the jury could also
consider the effect of any threats the defendant may have received from anyone whom he
reasonably associated with Ortega, which would logically include his fellow gang
members.
              Reyes contends that, as worded, the instructions only pertained to the
situation where the defendant acted against the particular person who had actually
threatened him. But the final sentence of the instruction was worded more broadly than
that. By its terms, it allowed the jury to consider threats the defendant received from
Ortega’s associates in determining whether his actions against Ortega were justified.
Therefore, the instructions were not unduly restrictive. They did not violate Reyes’ rights
in any respect.
                                           III
                  We now turn to Reyes’ sentencing claims. Since he was convicted, the
contours of the law respecting juvenile sentencing have been reshaped by a series of
watershed cases. Eighth Amendment decisional law now restricts the type of sentence a
juvenile offender may receive in some circumstances. Because Reyes was only 17 years
old when this case arose, we will vacate his sentence and remand the matter so he can be
resentenced in light of these decisions.
              Reyes was sentenced on December 14, 2007. For the crime of first degree
murder with the gang-related special circumstance, the court sentenced him to life in
prison without the possibility of parole (LWOP). (§ 190.2, subds. (a), (c).) Because
Reyes vicariously discharged a firearm that caused death, the court imposed a
consecutive enhancement of 25 years to life on that count. (§ 12022.53, subds. (d),
(e)(1).) The court then imposed consecutive life terms, plus 20-year enhancements for
vicariously discharging a firearm, on each of the three counts of attempted premeditated
murder. (§§ 664, subd. (a), 12022.53, subds. (c), (e)(1).) And because the shooting was

                                                 9
gang-related, the court also ruled Reyes must serve a minimum of 15 years in prison
before he is eligible for parole on those counts. (§ 186.22, subd. (b)(5).)
              On the remaining three counts, the court stayed Reyes’ sentence pursuant to
section 654. Thus, as reflected in the abstract of judgment, the court sentenced Reyes to
a total term of LWOP “plus 3 indeterminate sentences of life with the possibility of
parole after serving a minimum of 15 years as to each count, plus 85 years to life.”
              It is undisputed that one aspect of Reyes’ sentence is incorrect. Because he
was not the actual shooter, he could not be subjected to both the 20-year enhancement per
section 12022.53, subdivisions (c) and (e)(1) plus the 15-year minimum parole eligibility
period set forth in section 186.22, subdivision (b)(5). (People v. Brookfield (2009) 47
Cal.4th 583; People v. Gonzalez (2010) 180 Cal.App.4th 1420.) On remand, the trial
court must bear that in mind when resentencing Reyes.
              The main reason the matter must be remanded, however, has to do with the
Eighth Amendment, which prohibits “cruel and unusual punishments.” (U.S. Const., 8th
Amend.; see also Cal. Const., Art. I, § 17 [proscribing the infliction of cruel or unusual
punishment].) Three years after appellant was sentenced, the United States Supreme
Court held in Graham v. Florida (2010) 560 U.S. __, __ [130 S.Ct. 2011, 2034]
(Graham) that “[t]he Constitution prohibits the imposition of a life without parole
sentence on a juvenile offender who did not commit homicide.”
              “The gist of Graham is not only that life sentences for juveniles are unusual
as a statistical matter, they are cruel as well because ‘developments in psychology and
brain science continue to show fundamental differences between juvenile and adult
minds’ [citation], ‘[j]uveniles are more capable of change than are adults, and their
actions are less likely to be evidence of “irretrievably depraved character” than are the
actions of adults’ [citation], and that accordingly, ‘“a greater possibility exists that a
minor’s character deficiencies will be reformed”’ [citation.]” (People v. Caballero
(2012) 55 Cal.4th 262, 272 [110-year-to-life sentence imposed on a juvenile offender for

                                              10
a nonhomicide offense is the functional equivalent of a LWOP sentence and thus violates
the Eighth Amendment]; see also Roper v. Simmons (2005) 543 U.S. 551 (Roper)
[because juveniles are generally less mature, responsible and culpable than adults, they
cannot be subjected to capital punishment].)
              Graham is factually inapt here, given that Reyes was convicted of murder.
However, in Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] (Miller), the high
court extended the reasoning of Graham to the situation presented in this case, where a
juvenile offender is convicted of homicide. Although Miller did not categorically
prohibit LWOP sentences for juveniles who commit homicide, it ruled the Eighth
Amendment prohibits mandatory LWOP sentences for such offenders. (Id. at p. __ [132
S.Ct. at p. 2469].)
              In so ruling, the Miller court stated that “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 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.” (Miller, supra, 567
U.S. at p. __ [132 S.Ct. at p. 2469], fn. omitted.)
              Because Reyes’ sentencing predated Graham and Miller, the trial court
obviously did not have the benefit of those decisions. As a matter of fact, in sentencing
Reyes, the court did not mention anything about his age or his prospects for reform.
Instead, the court appears to have presumed LWOP was the only sentencing choice
available given Reyes was convicted of special circumstances murder. At sentencing, the

                                              11
court told him, “Most gang murders are senseless because there is no point in it. So none
of this will ever stop until young people like yourself decide not to get involved in a
gang. And, that’s probably wishful thinking. [¶] In any event, since you have been
found guilty by the jury of first degree murder with special circumstances to be true, as
relates to count 1, you are committed to state prison for a term of life without the
possibility of parole.”
                 The Attorney General points out that pursuant to section 190.5 the trial
court did have the discretion to sentence Reyes to 25 years to life in prison instead of
LWOP. Indeed, that section provides, “The penalty for a defendant found guilty of
murder in the first degree, in any case in which one or more special circumstances
enumerated in Section 190.2 or 190.25 has been found to be true under section 190.4,
who was 16 years of age or older and under the age of 18 years at the time of the
commission of the crime, shall be confinement in state prison for life without the
possibility of parole or, at the discretion of the court, 25 years to life.” (§ 190.5, subd.
(b), italics added.)
                 Seeing that section 190.5, subdivision (b), empowered the trial court to
sentence Reyes to 25 years to life, the Attorney General argues California sentencing law
does not run afoul of the holding in Miller, which prohibits mandatory LWOP for
juvenile homicide offenders.4 However, case law has interpreted section 190.5,
subdivision (b), as making LWOP the “presumptive punishment” and “generally
mandatory” sentence for juveniles who commit special circumstances murder. (People v.
Guinn (1994) 28 Cal.App.4th 1130, 1141-1142; accord, People v. Ybarra, supra, 166




        4
                 The California Supreme Court is currently considering this issue. (See People v. Siackasorn
(2012) 211 Cal.App.4th 909, review granted Mar. 20, 2013, S207973; People v. Moffett (2012) 209 Cal.App.4th
1465, review granted Jan. 03, 2013, S206771; People v. Gutierrez (2012) 209 Cal.App.4th 646, review granted Jan.
03, 2013, S206365.)


                                                       12
Cal.App.4th at p. 1093.) That interpretation of the statute is directly at odds with Miller’s
holding that LWOP sentences for such offenders should be the exception and not the rule.
              Beyond that, there is nothing in the record to suggest the trial court actually
knew it could sentence Reyes to 25 years to life. This prospect was not brought up in
Reyes’ presentencing probation report or mentioned by counsel at time of sentencing.
And to make matters worse, the prosecution’s sentencing brief incorrectly stated that
LWOP was the only available sentencing option on the special circumstances murder
count. Judging by the court’s above-quoted comments at the sentencing hearing, that is
apparently what the court believed, as well.
              This record strongly suggests “a lack of awareness by the court and counsel
alike of the discretion that section 190.5, subdivision (b) confers to impose on a youthful
offender a 25-year-to-life term instead of an LWOP term.” (People v. Ybarra, supra, 166
Cal.App.4th at p. 1093.) Under these circumstances, Reyes’ sentence must be vacated
and the matter remanded for resentencing. (Id. at p. 1094.)
              On remand, the trial court must not only consider the standard aggravating
and mitigating circumstances listed in the rules of court and section 190.3. (See People v.
Ybarra, supra, 166 Cal.App.4th at pp. 1089-1094.) Per Miller, the trial court is required
“to take into account how children are different [from adults], and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.” (Miller, supra, 567
U.S. at p. __ [132 S.Ct. at p. 2469], fn. omitted.) That way, the court can make a fully
informed decision as to whether LWOP or 25 years to life is the appropriate sentence for
Reyes.
              The court is also free to reconsider other aspects of Reyes’ sentence, e.g.,
consecutive versus concurrent terms, in determining the most suitable punishment for
him. We offer no opinion on what that may be but instead leave it to the trial court in the
first instance to make that call based on all of the relevant considerations, which we are
not well situated to evaluate. (Cf. People v. Thomas (2012) 211 Cal.App.4th 987, 1013-

                                               13
1015 [reversing juvenile’s de facto LWOP sentence and remanding matter for
resentencing with instructions for trial court to consider impact of Miller and other recent
Eighth Amendment cases]; People v. Argeta (2012) 210 Cal.App.4th 1478, 1480-1482
[same].)
                                   DISPOSITION
              Reyes’ sentence is vacated and the matter is remanded so he can be
resentenced consistent with the views expressed herein. In all other respects, the
judgment is affirmed.



                                                  BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



ARONSON, J.




                                             14
