Filed 6/22/15 P. v. Vargas CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B252005

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA374621)
         v.

ESVIN VARGAS et al.,

         Defendants and Appellants.



         APPEALS from judgments of the Superior Court of Los Angeles County,
Kathleen Kennedy, Judge. Reversed and remanded.
         Eric R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant, Esvin Vargas.
         Jennifer M. Hansen, under appointment by the Court of Appeal, for Defendant and
Appellant, Eleazar Arevalo.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C. Byrne and
Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
                                               _________________
       Esvin Vargas and Eleazar Arevalo were convicted of the murder of Kristian
Rodriguez by separate juries following a joint trial. Carlos Hernandez, known by the
gang moniker “Listo,” was the actual shooter; Vargas and Arevalo were tried on alternate
theories that they had directly aided and abetted the murder or that the murder was the
natural and probable consequence of the target crime of assault with a firearm, which the
two of them had aided and abetted. The jury also found true criminal street gang and
firearm-use enhancements as to both Vargas and Arevalo.
       On appeal Vargas and Arevalo challenge the sufficiency of the evidence to support
their convictions (first degree murder for Vargas; second degree murder for Arevalo) and
argue the court’s instructions were prejudicially defective due to misstatements in several
of the instructions given and because the court failed to instruct sua sponte on certain
lesser included offenses. Arevalo also contends statements he made to the police
following his arrest should have been excluded as a continuation of an initial involuntary
confession, which the court had suppressed in light of the lead detective’s improper
(false) promises during the interrogation, and argues his sentence of 40 years to life is a
de facto sentence of life without the possibility of parole and, as such, constitutes cruel
and unusual punishment since he was only 16 years old at the time of the incident.
Finally, Vargas and Arevalo ask us to review the sealed transcripts of hearings regarding
disclosure of the investigating officer’s personnel files and the identity of confidential
            1
informants. We reverse both convictions and remand for new trials.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. The Shooting
       In the late afternoon of January 4, 2010, Rodriguez, one of his friends, Jirair
Tossounian, and Rodriguez’s mother, Araceli Gutierrez, were standing in front of
Gutierrez’s home on North Serrano Avenue in Los Angeles. Rodriguez, who was
20 years old, had a short haircut and tattoos on his arms, was five feet, seven or eight

1
        As authorized by California Rules of Court, rule 8.200(a)(5), Vargas and Arevalo
join in each other’s arguments to the extent they are applicable.
                                              2
inches tall, and weighed between 190 and 195 pounds. He was not a gang member.
Rodriguez was reportedly happy about the birth of his child but upset because he had
received a fine in traffic court earlier in the day. According to Tossounian , Rodriguez
had told him he wanted to get into a fight. Gutierrez testified she was trying to comfort
her son when she noticed two Hispanic males riding bicycles slowly down the street in
their direction.
       Gutierrez described one of the cyclists, who looked 17 or 18 years old, as
“chunky”; the other appeared thin and younger. At the time of the shooting Vargas was
18 years old; Arevalo was 16 years old and weighed approximately 110 pounds.
       The two cyclists stopped near where Gutierrez, Rodriguez and Tossounian were
standing. The chunky individual appeared to say something although Gutierrez did not
hear what he said. Rodriguez responded, “You guys fucking disrespecting my mom?”
He then walked into the street, notwithstanding Gutierrez’s and Tossounian’s attempt to
stop him, and confronted the two individuals. One of the cyclists threw down his bicycle
and said, “MS.” A fight started. A third man (Hernandez), who had been standing on the
opposite side of the street from Gutierrez and Rodriguez, shot Rodriguez. Rodriguez fell
to the ground. The man with the gun took a step toward Rodriguez and shot him again.
The two cyclists and the shooter immediately left the area.
       Tossounian, testifying for the defense at trial, said the two bicyclists tried to retreat
and flee the scene before Rodriguez attacked them. He described Rodriguez to the police
as the instigator of the incident and testified that Rodriguez was on top of one of the two
cyclists at the time he was shot. According to Tossounian, the shooter was standing on
the back axle of one of the bicycles as they rode away.
       Rodriguez sustained two gunshot wounds to the chest, one of which was fatal, and
a gunshot wound to his right hand (apparently a reentry wound). The bullet in
Rodriguez’s hand was removed during the autopsy. The parties stipulated this bullet had
been fired from a revolver purchased from Christopher Marroquin by law enforcement
agents several weeks after the shooting as part of an undercover operation conducted by

                                               3
the Federal Bureau of Investigation and the Los Angeles County Sheriff’s Department.
The People’s gang expert testified Marroquin was known to be a member of the Harvard
Criminals clique of the Mara Salvatrucha criminal street gang.
       2. The Gang Evidence
       Los Angeles Police Detective Timo Illig responded to process the crime scene
approximately 40 minutes after the shooting. (Apparently Rodriguez’s body had already
been removed by paramedics.) Illig observed Mara Salvatrucha gang graffiti (a black
painted “MS”) on the sidewalk approximately 15 to 20 feet from where he collected
bloody clothing lying on the ground. The “MS” had been crossed out and replaced with a
white painted “R 13,” signifying the rival criminal street gang Rebels 13. There was
other gang graffiti nearby for the Hollywood Locos clique of Mara Salvatrucha, as well
as Rebels 13 graffiti that had been crossed out.
       The People’s gang expert, Los Angeles Police Detective Frank Flores, testified the
Mara Salvatrucha criminal street gang, which has the common symbol “MS” and is also
known as “M.S.,” “M.S. 13,” and “La Mara,” claimed the territory where Rodriguez was
      2
killed. The Harvard Criminals clique of Mara Salvatrucha and the Hollywood Locos
clique of the gang had almost the same boundaries, and members of the two cliques got
along well with each other in January 2010. (Detective Flores described the Harvard
Criminals as the “younger brother to the Hollywood clique.”) Detective Flores explained
that painting over or crossing out the MS gang symbol with the Rebels 13 insignia in an
area controlled by Mara Salvatrucha was an act of disrespect. He also testified that gang
members protect their territory from another gang’s infringement through violence, fear


2
       In his testimony Detective Flores provided the basis for the juries’ findings that
Mara Salvatrucha is a criminal street gang as defined by Penal Code section 186.22,
subdivisions (e), (f) and (j), and that the shooting of Rodriguez was committed for the
benefit of, at the direction of, or in association with a criminal street gang and with the
specific intent to promote, further or assist in criminal conduct by gang members.
Neither Vargas nor Arevalo challenges the sufficiency of the evidence to support the
criminal street gang enhancement.
                                              4
and intimidation and show their allegiance to their gang by committing acts of violence
against rival gang members, which enhances the gang’s reputation in the community.
       Detective Flores opined that Hernandez, Vargas and Arevalo were all members of
Mara Salvatrucha. Vargas and Arevalo each had a number of Mara Salvatrucha gang
tattoos, and entries on their social media pages included multiple gang references.
Vargas identified himself as “Lil Puppet” and was a member of the Hollywood Locos
clique; Arevalo’s MySpace page also referred to the Hollywood Locos clique. Both
Vargas and Arevalo used the term “chavalas,” which means little girl in Spanish but,
according to Detective Flores, is employed by gang members as a derogatory term for a
rival gang member. (Vargas’s MySpace profile also referred to “Rebeccas,” which the
gang expert testified was a derogatory term specifically directed to Rebels 13.)
       In separate testimony before each of the two juries, Detective Flores opined, based
on a hypothetical closely approximating the facts in evidence, the shooting of Rodriguez
was committed in association with and for the benefit of the Mara Salvatrucha gang. He
explained the armed gang member had made it known to the other two members that he
was looking for rivals in an area in which their gang’s graffiti had been crossed out,
showing disrespect. When these gang members then encountered someone they
perceived to be a rival who acted disrespectfully (by words and demeanor), the resulting
altercation and shooting were the means by which the gang enforced its territory.
       3. Vargas’s and Arevalo’s Statements to the Police
       Vargas and Arevalo were individually interrogated and made statements to Los
Angeles Police Detective Brett Goodkin (through a Spanish language interpreter)
following their arrests in August 2010 after being advised pursuant to Miranda v. Arizona
(1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] of their right to remain silent, to the
presence of an attorney, and, if indigent, to appointed counsel. Each interview was audio
and video recorded. The recording of Vargas’s statement was played and admitted into
evidence at trial only against him; Arevalo’s statements were played for his jury and
admitted into evidence only against him.

                                             5
              a. Vargas’s statement
       Vargas told Detective Goodkin he and Arevalo had been standing outside
                                                                         3
Vargas’s house on Sierra Vista Avenue when Listo (Hernandez) arrived. Listo told them
he had a gun with him, but he did not pull it out or show it to them. At one point Vargas
said they started walking because Arevalo and Listo wanted to buy some marijuana,
subsequently because they were going to the liquor store. After further specific
questioning by Detective Goodkin, Vargas added that Listo had said he was going to go
see or look for chavalas or enemies. Vargas and Arevalo rode their bicycles in the street;
Listo followed on the sidewalk on foot.
       Vargas continued that, as he and Arevalo rode their bicycles down North Serrano
Avenue toward the liquor store, Rodriguez, who was outside with this mother, began
yelling at them and wanted to fight. Gutierrez grabbed at Rodriguez and tried to stop him
but was unsuccessful. Rodriguez pushed Gutierrez away and continued yelling and
coming toward them. At this point Arevalo shouted “Mara Salvatrucha.” Rodriguez
responded, “Fuck la Mara,” and began punching them. Rodriguez threw Vargas to the
ground. Vargas got up, but Rodriguez and Arevalo continued struggling on the ground.
Vargas was riding away when he saw Listo run up and shoot Rodriguez twice.
       Vargas, Arevalo and Hernandez eventually all went to the home of Deysi Argueta,
where they stayed until dark. (Detective Flores testified Argueta’s boyfriend was a
member of the Harvard Criminals clique of Mara Salvatrucha and her home was within
the gang’s boundaries.) Arevalo left first; then Vargas.
       Vargas denied he knew Listo would kill anyone that day and insisted he was upset
that Listo had done so. He admitted he was a member of the Hollywood Locos clique of
Mara Salvatrucha and acknowledged he had heard Listo bragging about killing someone
he believed to be a rival gang member.



3
       Sierra Vista Avenue at this location runs east-west for a block and then curves to
the south, becoming North Serrano Avenue, where the shooting occurred.
                                             6
             b. Arevalo’s statement
      Arevalo, who was 16 years old when Rodriguez was shot, was initially questioned
by Detective Goodkin on July 30, 2010, prior to his arrest. That statement, discussed in
more detail below, was suppressed as the product of improper (false) promises. After
Arevalo’s arrest on August 12, 2010 Detective Goodkin again interrogated him through a
second officer who both acted as translator and asked his own questions.
      Arevalo told the officers he was at Vargas’s home on January 4, 2010. They
called Listo, who was going to bring marijuana. When Listo arrived, he showed them a
gun. While Listo, Vargas and Arevalo were listening to music and talking, Listo said he
                            4
was going to kill a “chaval.” Although the transcript of the three-way exchange among
Detective Goodkin, the Spanish-speaking officer and Arevalo does not present a clear
narrative, Arevalo ultimately acknowledged that Listo also said he was going to “look for
the enemy.” Someone then suggested they go for a walk. Arevalo understood they were
going to look to see if any of the Mara Salvatrucha graffiti in the neighborhood had been
crossed out again by members of Rebels 13.
      With Listo walking on “the other side,” Vargas and Arevalo rode their bicycles in
the street down North Serrano Avenue where they encountered Rodriguez. Rodriguez
stared at them, and Vargas asked what he was looking at. Rodriguez came over and
started arguing with Vargas. Vargas threw his bicycle toward Rodriguez and yelled La
Mara Salvatrucha. Rodriguez responded by throwing the bicycle toward Arevalo and
then pushed Arevalo and jumped on him. Listo came over, pushed Arevalo aside and
shot Rodriguez twice.
      According to Arevalo, after the shooting they all ran toward the nearby park.
Once there, Listo gave the gun to Arevalo to hold while Listo vomited and then took it
back. Ultimately they went to Argueta’s house, where they stayed for the balance of the
4
        Although the transcript indicates Arevalo used the word “chaval,” which means a
young boy, the Spanish-speaking officer acting as translator for Detective Goodkin told
Goodkin that Arevalo had said “chavala,” which, as discussed, literally means young girl
but is employed as a derogatory term by gang members for their rivals.
                                             7
day. Arevalo also told the officers that Listo had bragged about killing a chaval at a
meeting of the Hollywood Locos clique of Mara Salvatrucha.
       4. The Court’s Instructions on Aiding and Abetting
       Vargas and Arevalo were tried on alternate theories that they had directly aided
and abetted the murder or that the murder was the natural and probable consequence of
the target crime of assault with a firearm, which the two of them had aided and abetted.
The court instructed the juries with CALCRIM Nos. 400, 401 and 403 explaining the
difference between directly committing a crime and aiding and abetting the perpetrator of
the crime (400), the elements of direct aiding and abetting (401) and the natural and
probable consequences theory of aiding and abetting (403). Assault with a firearm was
identified as the target offense for the natural and probable consequence theory and was
defined in CALCRIM No. 875. The court used CALCRIM No. 500 and modified
versions of CALCRIM Nos. 520, 521 and 522 to define homicide and murder and explain
the differences between first degree and second degree murder. The juries were also
instructed pursuant to CALCRIM No. 505 that Vargas and Arevalo were not guilty of
murder as aiders and abettors if the shooter was justified in killing someone in defense of
another and pursuant to CALCRIM No. 571 that a killing that would otherwise be murder
is reduced to voluntary manslaughter if the shooter was acting in imperfect defense of
another.
       5. The Verdict and Sentencing
       Vargas was convicted of first degree murder. A separate jury convicted Arevalo
of second degree murder. Each jury found true special firearm-use and criminal street
gang allegations pursuant to Penal Code sections 12022.53, subdivisions (d) and (e)(1),
and 186.22, subdivision (b). Vargas was sentenced to an aggregate indeterminate term of
50 years to life; Arevalo to an aggregate indeterminate term of 40 years to life. The court




                                             8
awarded Vargas 1,335 days and Arevalo 1,141 days of presentence custody credit and
                                                 5
imposed statutory fees, fines and assessments.
                                        DISCUSSION
       1. The Trial Court’s Instruction Permitting Vargas To Be Convicted of First
          Degree Murder Under the Natural and Probable Consequences Doctrine Was
          Prejudicial Error
       In People v. Chiu (2014) 59 Cal.4th 155 (Chiu), decided after Vargas filed his
opening brief in this appeal, the Supreme Court held “an aider and abettor may not be
convicted of first degree premeditated murder under the natural and probable
consequences doctrine. Rather, his or her liability for that crime must be based on direct
aiding and abetting principles.” (Id. at pp. 158-159.) The Attorney General concedes, in
light of Chiu, the trial court erred in giving instructions that permitted the jury to convict
Vargas of first degree murder under the natural and probable consequences doctrine but
contends Vargas was not prejudiced by the improper instruction. The Attorney General’s
argument, which simply asks us to weigh the evidence indicating Vargas directly aided
and abetted Listo (and Arevalo) in the murder of Rodriguez, fundamentally misconceives
the required harmless error analysis.
       As the Court explained in Chiu, “There are two distinct forms of culpability for
aiders and abettors. ‘First, an aider and abettor with the necessary mental state is guilty
of the intended crime. Second, under the natural and probable consequences doctrine, an
aider and abettor is guilty not only of the intended crime, but also “for any other offense
                                                                                     6
that was a ‘natural and probable consequence’ of the crime aided and abetted.”’” (Chiu,

5
        The court also ordered Vargas and Arevalo to pay $12,460.38 in direct victim
restitution to the Victim Compensation and Government Claims Board. (Pen. Code,
§ 1202.4, subd. (f).) The court made this obligation joint and several as reflected in the
transcript of the sentencing hearing and the subsequent minute order. As Vargas and
Arevalo note, and the Attorney General acknowledges, however, the abstract of judgment
does not correctly report the joint and several nature of the obligation.
6
      Under the natural and probable consequences doctrine, “‘“[a] person who
knowingly aids and abets criminal conduct is guilty of not only the intended crime [target
                                           9
supra, 59 Cal.4th at p. 158.) “First degree murder, like second degree murder, is the
unlawful killing of a human being with malice aforethought, but has the additional
elements of willfulness, premeditation, and deliberation which trigger a heightened
penalty. [Citation.] That mental state is uniquely subjective and personal. It requires
more than a showing of intent to kill; the killer must act deliberately, carefully weighing
the considerations for and against a choice to kill before he or she completes the acts that
caused the death. [Citations.] . . . Although we have stated that an aider and abettor’s
‘punishment need not be finely calibrated to the criminal’s mens rea’ [citation], the
connection between the defendant’s culpability and the perpetrator’s premeditative state
is too attenuated to impose aider and abettor liability for first degree murder under the
natural and probable consequences doctrine, especially in light of the severe penalty
involved and the above-stated public policy concern of deterrence.” (Id. at p. 166.) For
these reasons, the Court held “that punishment for second degree murder is
commensurate with a defendant’s culpability for aiding and abetting a target crime that
would naturally, probably, and foreseeably result in a murder under the natural and
probable consequences doctrine. We further hold that where the direct perpetrator is
guilty of first degree premeditated murder, the legitimate public policy considerations of
deterrence and culpability would not be served by allowing a defendant to be convicted
of that greater offense under the natural and probable consequences doctrine.” (Ibid.)
       Nonetheless, “[a]iders and abettors may still be convicted of first degree
premeditated murder based on direct aiding and abetting principles. [Citation.] Under
those principles, the prosecution must show that the defendant aided or encouraged the
commission of the murder with knowledge of the unlawful purpose of the perpetrator and
with the intent or purpose of committing, encouraging, or facilitating its commission.


offense] but also of any other crime the perpetrator actually commits [nontarget offense]
that is a natural and probable consequence of the intended crime.”’ [Citation.] ‘Thus, for
example, if a person aids and abets only an intended assault, but a murder results, that
person may be guilty of that murder, even if unintended, if it is a natural and probable
consequence of the intended assault.’” (Chiu, supra, 59 Cal.4th at p. 161.)
                                             10
[Citation.] Because the mental state component—consisting of intent and knowledge—
extends to the entire crime, it preserves the distinction between assisting the predicate
crime of second degree murder and assisting the greater offense of first degree
premeditated murder. [Citations.] An aider and abettor who knowingly and intentionally
assists a confederate to kill someone could be found to have acted willfully, deliberately,
and with premeditation, having formed his own culpable intent. Such an aider and
abettor, then, acts with the mens rea required for first degree murder.” (Chiu, supra,
59 Cal.4th at pp. 166-167.)
       In Chiu the Court reversed the first degree murder conviction of a teenage
defendant who had instigated a fight that resulted in murder; according to disputed
testimony, the defendant had told his friend to grab the gun and shoot the victim. (Chiu,
supra, 59 Cal.4th at p. 160.) The People pursued the defendant’s conviction for first
degree premeditated murder under a direct aiding and abetting theory, as well as a natural
and probable consequences theory; and the trial court instructed the jury it could convict
the defendant of first degree murder if it found he either directly aided and abetted the
murder or aided and abetted the target offense of assault, the natural and probable
consequence of which was murder. (Ibid.) Finding the trial court had erred in instructing
the jury on the natural and probable consequences doctrine, the Court turned to the issue
of prejudice: “When a trial court instructs a jury on two theories of guilt, one of which
was legally correct and one legally incorrect, reversal is required unless there is a basis in
the record to find that the verdict was based on a valid ground. [Citation.] Defendant’s
first degree murder conviction must be reversed unless we conclude beyond a reasonable
doubt that the jury based its verdict on the legally valid theory that the defendant directly
                                                               7
aided and abetted the premeditated murder.” (Id. at p. 167.) Because the record



7
        In discussing the question of prejudice the Chiu Court cited its earlier decision on
the issue in People v. Chun (2009) 45 Cal.4th 1172, 1203-1205, in which the Court had
explained, “[w]ithout holding that this is the only way to find error harmless,” reversal
for instructional error is not proper “‘if the jury verdict on other points effectively
                                                11
indicated the jury may have relied on the natural and probable consequences doctrine in
convicting the defendant, the Court reversed because it could not conclude beyond a
reasonable doubt the jury had relied on a legally valid theory. (Id. at p. 168.)
       The Attorney General points to nothing in the record that affirmatively indicates
the jury relied upon the direct aiding and abetting theory, rather than the natural and
probable consequences doctrine, to convict Vargas of first degree premeditated murder.
Certainly none of the jury’s other findings—that is, its true findings as to the criminal
street gang or firearm-use enhancements—necessarily embraces an implied finding that
Vargas directly aided and abetted the murder or is inconsistent with its use of the natural
and probable consequences doctrine. (See People v. Chun (2009) 45 Cal.4th 1172, 1203-
1205.) Instead, the Attorney General argues the strength of the evidence that Vargas
directly aided and abetted Listo in committing murder, together with the fact the
prosecutor “focused” his argument on the direct aiding and abetting theory (although
discussing both theories in his jury argument), supports a finding beyond a reasonable
doubt the jury based its verdict on the legally valid theory rather than the erroneous one.
       Our review of the record leaves us far from as confident as the Attorney General
purports to be about the basis for the jury’s first degree murder verdict. While the
evidence is sufficient to support a finding Vargas directly aided and abetted an
intentional, premeditated murder, as discussed below, there is also ample evidence from
which the jury could have concluded his intent was only to assist the aggravated assault
of a rival gang member, an act that ultimately led to Rodriguez’s death. Indeed, because
Listo’s use of a firearm to assault a rival gang member would likely result in the victim’s
death, under the erroneous natural and probable consequence instruction the jury did not
need to resolve the question of Vargas’s actual intent (that is, did he intend to assist Listo
in killing or only assaulting someone). Nothing in the record suggests it did or
demonstrates beyond a reasonable doubt the jury based its verdict on the legally valid,


embraces this one or if it is impossible, upon the evidence, to have found what the verdict
did find without finding this point as well.’” (Id. at p. 1204.)
                                              12
direct aiding and abetting theory. (See Neder v. United States (1999) 527 U.S. 1, 15
[119 S.Ct. 1827, 144 L.Ed.2d 35]; People v. Gonzalez (2012) 54 Cal.4th 643, 663.)
       As the Chiu Court explained, the appropriate remedy for this instructional error in
many situations is to reverse the first degree murder conviction and allow the People
either to accept a reduction of the conviction to second degree murder or to retry the
greater offense under a direct aiding and abetting theory. (Chiu, supra, 59 Cal.4th at
p. 168.) In this case, however, other prejudicial instructional error, discussed below,
precludes acceptance of a reduction of Vargas’s conviction to second degree murder and
requires a retrial.
       2. The Failure To Instruct on Heat-of-Passion/Sudden-Quarrel Voluntary
          Manslaughter as a Lesser Included Offense of Murder Was Prejudicial Error
               a. The court’s obligation to instruct on lesser included offenses
       The trial court has a duty to instruct the jury sua sponte on all lesser included
offenses if there is substantial evidence from which a jury can reasonably conclude the
defendant committed the lesser, uncharged offense, but not the greater. (People v.
Whalen (2013) 56 Cal.4th 1, 68; People v. Rogers (2006) 39 Cal.4th 826, 866.) The duty
exists even when the lesser included offense is inconsistent with the defendant’s own
theory of the case and the defendant objects to the instruction. (People v. Banks (2014)
59 Cal.4th 1113, 1160, disapproved on other grounds in People v. Scott (June 8, 2015,
S064858) __ Cal.4th __ [2015 Cal. Lexis 3903]; People v. Breverman (1998) 19 Cal.4th
142, 155.) “[I]n a murder prosecution,” a court’s duty to instruct sua sponte “includes the
obligation to instruct on every supportable theory of the lesser included offense of
voluntary manslaughter, not merely the theory or theories which have the strongest
evidentiary support, or on which the defendant has openly relied.” (Breverman, at p. 149;
accord, People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.) This instructional
requirement “‘prevents either party, whether by design or inadvertence, from forcing an
all-or-nothing choice between conviction of the stated offense on the one hand, or
complete acquittal on the other. Hence, the rule encourages a verdict, within the charge
chosen by the prosecution, that is neither “harsher [n]or more lenient than the evidence
                                             13
merits.”’” (People v. Smith (2013) 57 Cal.4th 232, 239-240; accord, Banks, at p. 1160;
People v. Campbell (2015) 233 Cal.App.4th 148, 162.)
         We review the trial court’s failure to instruct on a lesser included offense de novo
(see People v. Licas (2007) 41 Cal.4th 362, 367; People v. Manriquez (2005) 37 Cal.4th
547, 581) considering the evidence in the light most favorable to the defendant (People v.
Millbrook, supra, 222 Cal.App.4th at p. 1137; People v. Turk (2008) 164 Cal.App.4th
1361, 1368, fn. 5).
             b. Voluntary manslaughter as a result of a sudden quarrel or heat of passion
         An intentional unlawful homicide is a voluntary manslaughter stemming from a
sudden quarrel or heat of passion if the defendant acted through strong passion aroused
by a provocation sufficient to cause an ordinary person to act without due deliberation
and reflection. (People v. Breverman, supra, 19 Cal.4th at p. 163.) Voluntary
Manslaughter based upon a sudden quarrel or heat of passion has an objective and a
subjective component. Under the subjective component, the defendant must actually
have killed under the immediate influence of the provocation. Under the objective
component, the circumstances giving rise to the act must be objectively sufficient to
provoke an ordinarily reasonable person to act rashly and without deliberation. (People
v. Enraca (2012) 53 Cal.4th 735, 759.) No specific type of provocation is necessary; the
passion can be anger, rage or any violent or intense emotion other than revenge: “To be
adequate, the provocation must be one that would cause an emotion so intense that an
ordinary person would simply react, without reflection. . . . [T]he anger or other passion
must be so strong that the defendant’s reaction bypassed his thought process to such an
extent that judgment could not and did not intervene.” (People v. Beltran (2013)
56 Cal.4th 935, 949.) The victim, not the defendant, must have initiated the provocation
that incited the killing. (Breverman, at p. 163; People v. Carasi (2008) 44 Cal.4th 1263,
1306.)
         During a hearing on jury instructions, after discussing the instructions that would
be given on defense of others and imperfect defense of others, Arevalo’s counsel

                                              14
requested an instruction on voluntary manslaughter/heat of passion, explaining, “The
theory for manslaughter, based on these guys and Carlos Hernandez [(Listo)], is that
[Listo] becomes so agitated and inflamed when he sees his littles being beaten down, that
he responds not in defense of his littles but in an – emotionally, sort of heat of passion.”
The court inquired, “How do you make a distinction between acting in defense of others
or in imperfect defense of others, and then you are just saying well he is angry because
his buddies are being beaten up? I mean, that becomes ridiculous.” Although counsel for
Arevalo then agreed with the court—“No, no. You are right. You are right.”—we do
not. The failure to give a voluntary manslaughter heat-of-passion/sudden quarrel
instruction was prejudicial error.
       Notwithstanding the trial court’s view (and defense counsel’s apparent
            8
agreement), in the context of this case the difference between voluntary manslaughter
based on imperfect defense of another and voluntary manslaughter based on a sudden
quarrel is anything but “ridiculous.” To have reduced the crime from murder to
manslaughter based on imperfect defense of others, the jury would have had to find, even
though there was no evidence Rodriguez had a weapon of any sort when he fought with
Vargas and Arevalo, that Listo actually believed the immediate use of deadly force was
necessary to protect Arevalo from imminent danger of being killed or suffering great
bodily injury. (See People v. Randle (2005) 35 Cal.4th 987, 997, overruled in part on
other grounds in People v. Chun, supra, 45 Cal.4th at p. 1201; see also People v. Booker
(2011) 51 Cal.4th 141, 182.) In contrast, to reduce the offense to voluntary manslaughter
based on sudden quarrel, the jury had only to conclude the combination of Rodriguez’s
belligerent demeanor, verbal insult of the Mara Salvatrucha gang, initiation of a physical
8
        Although after requesting the sudden quarrel/heat-of-passion voluntary
manslaughter instruction defense counsel concurred with the trial court’s decision not to
give it, the doctrine of invited error is inapplicable here: Counsel did not “persuade” the
trial court not to instruct on a lesser included offense supported by the record. (See
People v. Barton (1995) 12 Cal.4th 186, 198 [explaining limited role of invited error
doctrine in challenge to trial court’s failure to instruct sua sponte on lesser included
offense].)
                                             15
confrontation with the two bicyclists and forcible subduing of Arevalo, a youngster 80 to
85 pounds lighter than Rodriguez, was sufficient to cause an ordinarily reasonable person
to act rashly and, in fact, provoked Listo into shooting (even though he may not have
believed use of deadly force was necessary). (See People v. Thomas (2013)
218 Cal.App.4th 630, 645 [even when facts “fit more precisely with a homicide mitigated
by imperfect self-defense, . . . they may also show that [defendant] was guilty only of
voluntary manslaughter because when he shot [the victim] his passion was aroused and
his reason was obscured due to a sudden quarrel”].)
       Of course, a jury may not have accepted that version of events; but the evidence in
the record, viewed in the light most favorable to Vargas and Arevalo, was sufficient to
trigger the trial court’s obligation to instruct on voluntary manslaughter based on sudden
quarrel as a lesser included offense of murder. (See People v. Millbrook, supra,
222 Cal.App.4th at pp. 1141-1142 [sudden quarrel instruction required based on victim’s
belligerent and threatening behavior]; People v. Ramirez (2010) 189 Cal.App.4th 1483,
1484-1488 [shooting preceded by fight among rival gang members; prejudicial error not
to give sudden quarrel/heat-of-passion instruction]; see generally People v. Elmore
(1914) 167 Cal. 205, 211 [fight that escalated into killing supported verdict of voluntary
manslaughter not murder].) Indeed, “‘[i]n the usual case,’” a sudden quarrel or heat-of-
passion instruction “‘supplements the self-defense instruction.’” (People v. St. Martin
(1970) 1 Cal.3d 524, 531; see Breverman, supra, 19 Cal.4th at pp. 148, 162-164 [error
not to give heat-of-passion instruction when jury instructed on both complete and
imperfect self defense].)
           c. The instructional error was prejudicial
       “[W]hen a trial court violates state law by failing to properly instruct the jury on a
lesser included offense, this test applies: ‘[I]n a noncapital case, error in failing sua
sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof
which are supported by the evidence must be reviewed for prejudice exclusively under
[People v.] Watson [(1956) 46 Cal.2d 818, 836]. A conviction of the charged offense

                                              16
may be reversed in consequence of this form of error only if, “after an examination of the
entire cause, including the evidence” (Cal. Const., art. VI, § 13), it appears “reasonably
probable” the defendant would have obtained a more favorable outcome had the error not
occurred.’” (People v. Lasko (2000) 23 Cal.4th 101, 111; see People v. Beltran, supra,
56 Cal.4th at p. 955; see also People v. Moye (2009) 47 Cal.4th 537, 556.)
       Here, the evidence that Listo acted dispassionately in shooting Rodriguez after
Rodriguez had provoked a fight with Vargas and Arevalo and while Rodriguez was on
top of, and apparently pummeling, the much smaller and younger Arevalo, was at most
equivocal. Even though the juries believed Vargas and Arevalo had knowingly escorted
Listo as he walked the neighborhood looking for a rival to assault, intending to help him
in that quest, it is reasonably probable on this record—and in light of the fact that
Rodriguez was the initial aggressor and neither defendant was armed, let alone the actual
shooter—a properly instructed jury would have found that Listo committed only
voluntary manslaughter, and thus their crimes, too, were voluntary manslaughter.
Alternatively, even if Listo committed murder, the jury may well have concluded that
voluntary manslaughter, rather than murder, was the natural and probable consequence of
Vargas and Arevalo’s actions in aiding him—that they should have anticipated that
stalking a gang rival could lead to the type of fight that escalates and results in a death.
(See, e.g., People v. Woods (1992) 8 Cal.App.4th 1570, 1593 [“Even when lesser offense
instructions are not required for the perpetrator because the evidence establishes that, if
guilty at all, the perpetrator is guilty of the greater offense, the trial court may have a duty
to instruct sua sponte on necessarily included offenses as to aider and abettor liability. If
the evidence raises a question whether the offense charged against the aider and abettor is
a reasonably foreseeable consequence of the criminal act originally aided and abetted but
would support a finding that a necessarily included offense committed by the perpetrator
was such a consequence, the trial court has a duty to instruct sua sponte on the
necessarily included offense as part of the jury instructions on aider and abettor liability.



                                              17
Otherwise, . . . the jury would be given an unwarranted, all-or-nothing choice concerning
aider and abettor liability.”].)
       Citing to and quoting from People v. Wharton (1991) 53 Cal.3d 522, 572, the
Attorney General argues at least as to Vargas, by finding him guilty of first degree,
premeditated murder, his jury necessarily found Rodriguez’s shooting did not result from
a sudden quarrel or heat of passion and any error in failing to instruct on this theory of
voluntary manslaughter was harmless. The Attorney General accurately quotes the
following language from page 572 of the Wharton opinion: “By finding defendant was
guilty of first degree murder, the jury necessarily found defendant premeditated and
deliberated the killing. This state of mind, involving planning and deliberate action, is
manifestly inconsistent with having acted under the heat of passion—even if that state of
mind was achieved after a considerable period of provocatory conduct—and clearly
demonstrates that defendant was not prejudiced by the failure to give his requested
instruction.” The Attorney General omits, however, information from the preceding
paragraphs in which the Court explained the jury, in fact, had been “given comprehensive
instructions on provocation and heat of passion” (id. at p. 572), and the issue in the case
was not whether it was harmless error to omit such instructions entirely but rather
whether the defendant was prejudiced by the trial court’s error in declining to give a
requested pinpoint instruction that legally adequate provocation could occur over a
“considerable period of time.” (Id. at pp. 570-571.) The recent decision from the First
District, People v. Peau (2015) 236 Cal.App.4th 823, which applied Wharton and held
the defendant’s conviction of first degree murder rendered any failure to give a heat of
passion instruction harmless, similarly fails to accord any significance to the difference
between the error in Wharton in declining to give a requested pinpoint instruction and the
complete omission of the heat of passion voluntary manslaughter instruction. (See id. at
pp. 830-832.)
       In People v. Berry (1976) 18 Cal.3d 509, 518, on the other hand, the Supreme
Court held, when, as here, there was only a passing reference to heat of passion and

                                             18
provocation for the purpose of distinguishing first degree and second degree murder, but
not as a basis for finding voluntary manslaughter, “the jury’s determination that
defendant was guilty of murder of the first degree under the instructions given did not
necessarily indicate that ‘the factual question posed by the omitted instruction
[concerning heat-of-passion voluntary manslaughter] was necessarily resolved adversely
to the defendant under other, properly given instructions’ [citation]—in other words that
the jury had found that defendant had not killed [the victim] under a heat of passion.”
The Berry Court found the failure to instruct on voluntary manslaughter was prejudicial
error under Watson. Our colleagues in Division One of this court followed Berry in
People v. Ramirez, supra, 189 Cal.App.4th 1483 when, in reversing a first degree murder
conviction arising from a gang fight and shooting, it explained, “[T]he Supreme Court
has held that the erroneous omission of an instruction on heat of passion voluntary
manslaughter is not rendered harmless by a jury determination that the defendant was
guilty of first degree murder rather than second degree murder.” (Id. at p. 1488.)
Berry’s analysis, not Wharton’s, is applicable here.
       3. The Instruction on the Target Offense of Assault with a Firearm Was Incorrect
          and Must Be Corrected on Retrial
       As discussed, the jury was instructed pursuant to CALCRIM No. 403 as to the
natural and probable consequences theory of aiding and abetting. In part the jury was
told, “This theory requires that before you may decide whether the defendant is guilty of
murder, you must decide whether he is guilty of assault with a firearm. Assault with a
Firearm is defined in Instruction 875. [¶] To prove that the defendant is guilty of
murder, the People must prove that: [¶] 1. The defendant is guilty of assault with a
firearm; [¶] 2. During the commission of assault with a firearm a coparticipant in that
assault with a firearm committed the crime of murder; [¶] AND [¶] 3. Under all of the
circumstance, a reasonable person in the defendant’s position would have known that the
commission of the murder was a natural and probable consequence of the commission of




                                            19
                               9]
the assault with a firearm.[        [¶] A coparticipant in a crime is the perpetrator or anyone
who aided and abetted the perpetrator. . . .”
       To instruct on the elements of assault with a firearm as the target offense, the
court modified CALCRIM No. 875 by adding the phrase “as an aider and abettor” in the
introductory statement and substituting “co-participant” for “defendant” in each of the
five numbered elements of the offense. As modified the court instructed, “To prove that
the defendant is guilty of this crime [assault with a firearm] as an aider and abettor, the
People must prove that: [¶] 1. The co-participant did an act with a firearm that by its
nature would directly and probably result in the application of force to a person; [¶]
2. The co-participant did that act willfully; [¶] 3. When the co-participant acted, he was
aware of facts that would lead a reasonable person to realize that his act by its nature
would directly and probably result in the application of force to someone; [¶] AND [¶]
4. When the co-participant acted, he had the present ability to apply force with a firearm
to a person; AND [¶] 5. The co-participant did not act in defense of someone else. . . .”
       CALCRIM No. 875, as modified, did not instruct the jury that, to find Vargas or
Arevalo guilty of the target offense (aggravated assault) as aiders and abettors, it had to
find they had committed any criminal act or possessed any specific, culpable mental
state. The jury only had to find that a “coparticipant” (that is, Listo) committed the
aggravated assault and was not acting in their defense when he did so. The instruction,
therefore, improperly removed a necessary element of the target crime from the jury’s
consideration.
       The Attorney General implicitly concedes the modified version of CALCRIM
No. 875 was flawed. Nonetheless, emphasizing the well-established rule that we review
a claim of instructional error based on a review of the instructions as a whole in light of
the entire record, not in isolation (see, e.g., People v. Lucas (2014) 60 Cal.4th 153, 282;
9
       Even though the court instructed on voluntary manslaughter based on imperfect
self defense, it did not give the jury the option of convicting Vargas or Arevalo of
voluntary manslaughter as a natural and probable consequence of having aided and
abetted the target offense of aggravated assault.
                                                  20
People v. Harrison (2005) 35 Cal.4th 208, 252), she contends, when read together,
CALCRIM Nos. 403 and 875 properly informed the jury regarding Vargas and Arevalo’s
                                                                                         10
liability as aiders and abettors under the natural and probable consequences doctrine.
Specifically, the Attorney General argues, the two instructions told the jury Vargas and
Arevalo were guilty of murder under the natural and probable consequences doctrine if
they intended to encourage or aid the commission of the assault with a firearm (the target
offense). They do not.
       Whether considered separately or jointly, neither instruction informed the jury
Vargas and Arevalo were guilty of murder under the natural and probable consequences
doctrine only if the People proved beyond a reasonable doubt that they were guilty of
aiding and abetting Listo’s aggravated assault against Rodriguez and the death of
Rodriguez was a reasonably foreseeable outcome of that target offense. To the contrary,
the jury was simply told in CALCRIM No. 403 each defendant was guilty of murder if he
was guilty of aggravated assault—referring the jury to CALCRIM No. 875 alone for the
definition of the elements of that target offense—and Rodriguez’s death was a reasonably
foreseeable consequence of the aggravated assault. CALCRIM No. 875, in turn,
instructed (incorrectly) that each defendant was guilty of aggravated assault if a
coparticipant (that is, Listo) committed that predicate crime. There was no instruction the
jury had to find either Vargas or Arevalo intended to encourage or facilitate the
commission of the target offense or in any manner aided, promoted or encouraged Listo’s

10
        The Attorney General argues this claim has been forfeited because no objection to
CALCRIM No. 875 as modified was made by defense counsel in the trial court, citing
cases that state a party may not argue on appeal that an instruction correct in law was too
general or incomplete without first requesting a clarification in the trial court. But the
argument here is that the instruction was not “correct in law”; to the contrary, it omitted a
necessary element of the target offense. The Supreme Court in People v. Hillhouse
(2002) 27 Cal.4th 469, 503, a case quoted by the Attorney General to support the
forfeiture claim, expressly limits the general rule in the circumstances presented here,
explaining in the same paragraph as the language quoted in the Attorney General’s brief,
“Instructions regarding the elements of the crime affect the substantial rights of the
defendant, thus requiring no objection for appellate review.”
                                             21
commission of that offense. (See generally People v. Prettyman (1996) 14 Cal.4th 248,
262 [defining elements of natural and probable consequences doctrine].) Although the
introductory language used by the court when giving CALCRIM No. 875 referred to
Vargas and Arevalo’s liability as aiders and abettors, nothing in either CALCRIM
Nos. 403 or 875 explained what that meant or what the jury needed to find for them to be
liable as aiders and abettors.
       To be sure, CALCRIM No. 401, given in connection with the alternate theory that
Vargas and Arevalo had directly aided and abetted Listo’s murder of Rodriguez,
accurately described the necessary elements for aiding and abetting liability. But the
court’s instructions carefully distinguished between the two aiding and abetting theories,
and nothing in CALCRIM Nos. 403 or 875 suggested that CALCRIM No. 401’s
enumeration of elements was also to be considered in determining liability under the
natural and probable consequences doctrine. Nonetheless, particularly astute jurors might
have recognized the flaw in the literal requirements for a conviction under CALCRIM
Nos. 403 and 875 and themselves looked to CALCRIM No. 401 to supply the missing
elements for aiding and abetting liability. Indeed, we assume jurors are intelligent
individuals, capable of understanding and correlating all the instructions. (See People v.
Sattiewhite (2014) 59 Cal.4th 446, 475; People v. Richardson (2008) 43 Cal.4th 959,
1028.) In addition, in closing argument to both juries, the prosecutor indicated Vargas
and Arevalo were guilty of murder even if they did not know Listo intended to kill
someone but murder was the natural and probable consequence of an aggravated assault,
which they intended to assist. (See People v. Young (2005) 34 Cal.4th 1149, 1202
[“reviewing court also must consider the arguments of counsel in assessing the probable
impact of the [potentially misleading] instruction on the jury”].)
       Under the circumstances the instructional error regarding the target offense might
well be harmless. We need not decide that issue, however; for our reversal of Vargas’s
and Arevalo’s convictions based on the failure to instruct on heat-of-passion/sudden-



                                             22
quarrel voluntary manslaughter renders it moot. Upon retrial, the instructions regarding
the target offense must be corrected.
       4. Arevalo’s August 12, 2010 Statements Should Have Been Suppressed as a
          Continuation of His Earlier Involuntary Confession
           a. Arevalo’s statements to Detective Goodkin
       Arevalo was 17 years old in late July 2010 when he was initially interrogated
about the Rodriguez shooting by Detectives Goodkin and Chris Gable (with Officer Jeff
Castillo acting as translator) after being advised of his rights under Miranda and agreeing
to answer questions. Arevalo was not under arrest.
       Midway through the interview, which had not produced any significant
information, the detectives brought in Arevalo’s father, who spoke to his son outside the
officers’ presence and urged him to tell the truth. The detectives then returned, and
Arevalo’s father remained in the room. Goodkin told Arevalo, “My partner and I don’t
wanna book you for murder. If we had a hard on to do that we would’ve booked you
already. Okay? We just think you’re a wit[ness].” Arevalo was promised that, if he told
the truth and admitted he was at the scene, he could go home with his father, who, the
detectives said, wanted him to “man up and tell the truth.” Arevalo’s father then asked
him if the gang was worth more to him than his own father.
       Arevalo was also told, if he identified the shooter, he and his family would be
relocated at the City’s expense. According to Detective Gable, “If you’re worried about
saying, ‘Hey, this person shot someone,’ which is understandable . . . we do this all the
time, if and when that time comes, and we already explained this to your father, the City
will pay to relocate you and your family to another safe location before you would ever
have to do that.” Arevalo then revealed he was involved in a fistfight with Rodriguez,
who he believed was a rival gang member at the time of the shooting, and identified
photographs of Listo as the shooter and Vargas as the other person riding a bicycle.
Arevalo asked, “This is going to stay here, right?” and Gable answered, “Yes.” Arevalo
continued, “I did my part”; and Gable responded, “You did. You did good,” and


                                            23
Goodkin affirmed, “you did do your part.” Arevalo was not arrested and left with his
father.
          Less than two weeks later Arevalo was arrested and again interrogated by
Detective Goodkin after being informed of his constitutional rights and agreeing to speak
to the detective. Goodkin’s first words were, “Hey, Eleazar,” and then, “Okay. Eleazar,
you remember me, right? Okay.” Arevalo briefly acknowledged the detective, who
continued, “And we talked, uh, was it last week with your dad. And, uh, my partner and
I, Detective Gable, we told you then that we might have a couple of more questions for
you, okay?” Arevalo answered, “yes.” Goodkin then proceeded, “Now going back to
that day where Listo shot that kid . . . .” The questioning then probed the events
preceding the shooting as well as the details of the shooting incident itself. Arevalo again
admitted his involvement in the fight leading to Rodriguez’s death and described his
actions following the shooting, as discussed above in the factual background section of
this opinion.
            b. The court’s rulings suppressing the first and allowing the second statement
          Arevalo’s counsel moved to suppress both statements as involuntary because they
had been induced by the detectives’ false promises that Arevalo would not be charged in
the shooting if he cooperated and that he and his family would be relocated to protect
them if he was needed as a witness. The court agreed as to the initial statement:
“Goodkin is a problem. He is a problem detective, it seems to me. His tactics are
questionable at best. And here in this case I don’t feel that those statements again and
again and again that he makes to the defendant throughout that interview can be or should
be somehow put in a basket over here and not considered, . . . and I don’t feel that this
was a voluntary statement in light of the inducements and promises that . . . were made
and repeated by the detective during the questioning of the defendant. So this statement
is suppressed.”
          The court denied the motion to suppress the second statement, finding there was
sufficient attenuation under People v. McWhorter (2009) 47 Cal.4th 318 (McWhorter),

                                              24
even though both interrogations had been conducted by the same detective. The court
noted that Arevalo was under arrest and had been again given his Miranda warnings
before the second interview. With respect to Detective Goodkin, the court emphasized,
“He doesn’t make any of the kind of statements that he made in the last interview about
‘be a man,’ and you know, ‘you’re going to go home and we’ll relocate you,’ and we’ll
do this and we’ll do that. And so I am not going to suppress interview No. 2.”
       After trial Arevalo’s counsel again raised the issue of the voluntariness of this
confession as part of a motion for new trial. That motion was denied.
            c. Governing law
       In general, a defendant’s confession or admission is involuntary, and thus subject
to exclusion at trial, only if it is the product of coercion or, more generally,
“overreaching.” (People v. Tully (2012) 54 Cal.4th 952, 992, fn. 13; People v. Williams
(1997) 16 Cal.4th 635, 659.) “[I]nvoluntariness requires coercive activity on the part of
the state or its agents; and such activity must be, as it were, the ‘proximate cause’ of the
statement in question, and not merely a cause in fact.” (People v. Mickey (1991)
54 Cal.3d 612, 648; accord, Tully, at p. 992, fn. 13.) In deciding the question of
voluntariness both the United States and California Supreme Courts require courts to
apply a “totality of the circumstances” test. (Withrow v. Williams (1993) 507 U.S. 680,
693-694 [113 S.Ct. 1745, 1754, 123 L.Ed.2d 407]; People v. Massie (1998) 19 Cal.4th
550, 576; Williams, at p. 660.) “Relevant are ‘the crucial element of police coercion
[citation]; the length of the interrogation [citation]; its location [citation]; its continuity’
as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition
[citation]; and mental health.’” (Williams, at p. 660.)
       Evidence a defendant’s admissions were preceded by express or implied promises
of leniency is significant in evaluating whether the statements were voluntary. (People v.
Neal (2003) 31 Cal.4th 63, 84 [“[p]romises and threats traditionally have been recognized
as corrosive of voluntariness”]; People v. Boyette (2002) 29 Cal.4th 381, 412 [“[a]
promise to an accused that he will enjoy leniency should he confess obviously implicates

                                                25
the voluntariness of any resulting confession”].) The presence of such a threat or
promise, however, is not necessarily determinative: “[U]nder current law, no single
factor is dispositive in determining voluntariness . . . .” (People v. Williams, supra,
16 Cal.4th at p. 661; see People v. Massie, supra, 19 Cal.4th at p. 576 [“[i]n determining
whether a confession was voluntary, ‘[t]he question is whether defendant’s choice to
confess was not “essentially free” because his will was overborne’”].)
       The necessary analysis is different, however, when a court is evaluating the
admissibility of a statement or confession that, standing alone, might be considered
voluntary, but was preceded by a confession that itself was the product of police
overreaching. In McWhorter, supra, 47 Cal.4th 318 the Supreme Court held “‘where—as
a result of improper police conduct—an accused confesses, and subsequently makes
another confession, it may be presumed the subsequent confession is the product of the
first because of the psychological or practical disadvantages of having “‘let the cat out of
the bag by confessing.’”’” (Id. at p. 359.) A subsequent confession, however, may be
admitted if it is sufficiently attenuated from the prior involuntary confession. “‘The
degree of attenuation that suffices to dissipate the taint “requires at least an intervening
independent act by the defendant or a third party” to break the causal chain in such a way
that the second confession is not in fact obtained by exploitation of the [primary]
illegality.’” (Id. at p. 360, quoting People v. Sims (1993) 5 Cal.4th 405, 444-445.)
Indications of attenuation include whether the defendant was given Miranda warnings at
the start of the second interview, the time between the two interviews, the continuity of
personnel between the two interviews, any attempts to exploit information obtained from
the first interview in the second interview, whether the defendant was mature and
sophisticated, and the defendant’s purpose in making his statements in the second
interview. (McWhorter, at p. 361.)
       “‘In reviewing the voluntary character of incriminating statements, “‘[t]his court
must examine the uncontradicted facts surrounding the making of the statements to
determine independently whether the prosecution met its burden and proved that the

                                              26
statements were voluntarily given without previous inducement, intimidation or
threat.’”’” (McWhorter, supra, 47 Cal.4th at p. 346; accord, People v. McCurdy (2014)
59 Cal.4th 1063, 1086 [on appeal the trial court’s findings as to circumstances
surrounding the confession are upheld if supported by substantial evidence but the
finding as to the voluntariness of the confession is subject to independent review].)
           d. Arevalo’s incriminating statements during the second interview by
              Detective Goodkin should have been suppressed
       Several of the attenuation factors identified in McWhorter are present here.
Nearly two weeks had elapsed between the first and second interrogations; Arevalo was
given Miranda warnings at the start of the second interview; and he had now been
arrested, which was inconsistent with the promises given at the first session that had
improperly induced his initial statements. However, as the trial court noted, the same
detective conducted both interrogations; and, significantly, Detective Goodkin expressly
declared the second interview a continuation of the first (“Eleazar, you remember me,
right? . . . My partner and I, Detective Gable, we told you then that we might have a
couple of more questions for you, okay?”) and directly exploited the incriminating
information Arevalo had provided in his first confession (“Now going back to that day
where Listo shot that kid”). Although Detective Goodkin did not repeat the false
promises concerning witness relocation that had infected the initial interrogation, he did
nothing to retract them or to explain to Arevalo that his cooperation was no longer a path
to freedom.
       Moreover, in evaluating the totality of the circumstances we give special
consideration to Arevalo’s youth (17 years old at the time of the two interrogations), his
lack of any prior arrest record or known involvement with the criminal justice system,
and the fact he was born in Guatemala and apparently only recently came to the United
States. (See McWhorter, supra, 47 Cal.4th at p. 361 [court properly considers whether
“defendant’s ‘maturity and ability to again handle himself in a fashion that reflects
maturity and sophistication and articulation’ served to cleanse any taint”]; see also Fare
v. Michael C. (1979) 442 U.S. 707, 725 [99 S.Ct. 2560, 61 L.Ed.2d 197] [the
                                          27
determination whether statements obtained during custodial interrogation are admissible
against the accused is to be made upon an inquiry into the totality of the circumstances
surrounding the interrogation; “[t]he totality approach permits—indeed, it mandates—
inquiry into all the circumstances surrounding the interrogation. This includes evaluation
of the juvenile’s age, experience, education, background, and intelligence, and into
whether he has the capacity to understand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those rights.”]; see generally J.D.B.
v. North Carolina (2011) 564 U.S. ___, ___ [131 S.Ct. 2394, 2398, 180 L.Ed.2d 310,
317] [“children ‘generally are less mature and responsible than adults,’ . . . they ‘often
lack the experience, perspective, and judgment to recognize and avoid choices that could
be detrimental to them,’ [citation] and they ‘are more vulnerable or susceptible to . . .
outside pressures’ than adults”].) Although after reading the transcripts of Arevalo’s two
interrogations the trial court commented, “He doesn’t seem like he doesn’t know what
was going on in this interview, or where he is or, you know, about having rights and
everything else,” that observation sets the bar far too low. A relatively unsophisticated
young man was misled by false promises to confess his direct involvement in a gang-
related shooting. It was the People’s burden to rebut the presumption that Arevalo’s
second confession was the product of that improperly obtained first one by establishing a
break in the causative chain between the two statements. (McWhorter, supra, 47 Cal.4th
at p. 359.) They failed to do so. In a retrial both statements must be excluded.
       5. Substantial Evidence Supports Vargas’s and Arevalo’s Murder Convictions
       Although we reverse Vargas’s and Arevalo’s murder convictions because of
instructional error and, as to Arevalo, the improper admission into evidence of his
involuntary confession, we must also evaluate their claim those convictions, as tried, are
not supported by substantial evidence. “The Double Jeopardy Clause forbids a second
trial for the purpose of affording the prosecution another opportunity to supply evidence
which it failed to muster in the first proceeding.” (Burks v. United States (1978) 437 U.S.
1, 11 [98 S.Ct. 2141, 57 L.Ed.2d 1].) To avoid placing a defendant in double jeopardy, a

                                             28
reviewing court that reverses a conviction due to legal error must assess the defendant’s
challenges to the sufficiency of the evidence to determine whether the defendant may be
retried for some or all of the offenses. (See People v. Morgan (2007) 42 Cal.4th 593,
613; People v. Hayes (1990) 52 Cal.3d 577, 631.) “[T]he defendant . . . may preserve for
himself whatever double jeopardy benefits accrued in his first trial notwithstanding some
fatal defect in the proceedings.” (People v. Superior Court (Marks) (1991) 1 Cal.4th 56,
72, fn. 14.)
       In considering a claim of insufficient evidence in a criminal case, “we review the
whole record to determine whether any rational trier of fact could have found the
essential elements of the crime or special circumstances beyond a reasonable doubt.
[Citation.] The record must disclose substantial evidence to support the verdict—i.e.,
evidence that is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying
this test, we review the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends. [Citation.] We
resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327,
357; accord, People v. Manibusan (2013) 58 Cal.4th 40, 87.)
       The evidence presented to the two juries was sufficient to support the murder
verdicts as to both defendants under legally correct theories of guilt. As discussed, prior
to the shooting Vargas and Arevalo, both members of the Mara Salvatrucha gang, met
with Listo, another Mara Salvatrucha gang member, outside Vargas’s home. Rival gang

                                              29
members from Rebels 13 had been marking graffiti near Vargas’s home, which was
claimed by Mara Salvatrucha as part of their territory. When Listo arrived, he told them
he had a gun with him (and according to Arevalo showed them the firearm) and wanted
to look for rival gang members. The three young men then began slowly moving through
the neighborhood—Vargas and Arevalo on their bicycles; Listo walking closely behind
them. (In his closing argument the prosecutor described this behavior as trolling—acting
in a deliberately provocative manner with Arevalo, the smallest of the three, serving as
bait.) The juries could reasonably infer from this evidence that Vargas and Arevalo,
knowing Listo was armed, planned to assist him in an effort to locate and kill a rival gang
member to protect Mara Salvatrucha territory and that Rodriguez, who had the
appearance of a gang member and challenged Vargas and Arevalo, was identified by the
three MS gang members as an appropriate target of the plan. That conclusion is
reinforced by the identification of the Mara Salvatrucha gang during the confrontation
with Rodriguez, as well as the three men’s immediate flight from the scene of the
shooting with Listo riding on the back of one of the two bicycles and their meeting
shortly thereafter at Argueta’s house, a Mara Salvatrucha gathering spot, where they
remained off the streets and hidden until after nightfall.
       6. The Trial Court Used the Proper Procedure in Reviewing Information
          Responsive to the Pitchess Motion
       Prior to trial Arevalo moved under Evidence Code section 1043 and Pitchess v.
Superior Court (1974) 11 Cal.3d 531 for a review of Detective Goodkin’s personnel
records. The trial court reviewed the requested records in camera and found no
                                                                                           11
discoverable information although it did order information regarding a “Brady incident”
to be turned over to defense counsel. (Detective Goodkin had lied to his superiors about
his paid involvement in a motion picture concerning one of his cases.) At Arevalo’s
request, which the People do not oppose, we have reviewed the sealed record of the in

11
       Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] requires
the prosecution to disclose material exculpatory evidence to the defense.
                                             30
camera proceedings and conclude the trial court satisfied the minimum requirements in
determining whether there was discoverable information. No abuse of discretion
occurred. (See People v. Mooc (2001) 26 Cal.4th 1216, 1225.)
       7. The Trial Court Properly Denied the Request To Disclose the Identity of the
          Confidential Informants
       Within a few weeks of Rodriguez’s shooting detectives interviewed a confidential
informant, purportedly a Mara Salvatrucha gang member, who reported that Listo had
been bragging he had killed a rival gang member. As a result of this information
detectives recovered the gun Listo had used to kill Rodriguez. Several months later
detectives interviewed a second confidential informant, another Mara Salvatrucha gang
member, who identified Vargas, Arevalo and two other gang members as being present at
the time of the shooting. This informant also told the detectives Arevalo knew Listo was
carrying a gun before the incident and Listo gave Arevalo the gun to hold for at least a
brief time after the shooting.
       Defense counsel moved pursuant to Evidence Code sections 1041 and 1042 to
disclose the identities of the confidential informants. An in camera hearing was held, as
authorized by Evidence Code section 1042, subdivision (d), at which Detective Goodkin
testified. The court denied the request for disclosure, finding that nondisclosure would
                                                  12
not deprive Vargas and Arevalo of a fair trial.
       “[T]he prosecution must disclose the name of an informant who is a material
witness in a criminal case or suffer dismissal of the charges against the defendant.

12
        When a party demands disclosure of an informant’s identity, Evidence Code
section 1042, subdivision (d), requires the court to conduct a hearing “at which parties
may present evidence on the issue of disclosure.” However, if the identity of the
informant could be compromised by such a hearing, “the prosecuting attorney may
request that the court hold an in camera hearing. If such a request is made, the court shall
hold such a hearing outside the presence of the defendant and his counsel. At the in
camera hearing, the prosecution may offer evidence which would tend to disclose or
which discloses the identity of the informant to aid the court in its determination whether
there is a reasonable possibility that nondisclosure might deprive the defendant of a fair
trial.” (Ibid.)
                                            31
[Citation.] An informant is a material witness if there appears, from the evidence
presented, a reasonable possibility that he or she could give evidence on the issue of guilt
that might exonerate the defendant.” (People v. Lawley (2002) 27 Cal.4th 102, 159;
accord, Davis v. Superior Court (2010) 186 Cal.App.4th 1272, 1276.)
       Arevalo and Vargas have requested this court review the sealed transcript of the in
camera hearing to determine whether the trial court correctly applied the standard
governing disclosure of the informants’ identities. The Attorney General agrees an
independent review of the sealed transcript is appropriate.
       We have conducted the requested review. The record demonstrates the court
employed the proper procedure and had sufficient information to determine the
informants were not material witnesses. There was no abuse of discretion.
       8. The Challenge to Arevalo’s Indeterminate Life Sentence Is Moot
       In a supplemental opening brief Arevalo contends his sentence of 40 years to life
for second degree murder plus the gang/firearm-use enhancement was a de facto sentence
                                       13
to life without the possibility of parole and, because he was only 16 years old at the time
of the offense, argues that sentence violates the Eighth Amendment prohibition on cruel
and unusual punishment and the proscription in article I, section 17 of the California
Constitution of cruel or unusual punishment under the principles announced in Miller v.
Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 183 L.Ed.2d 407], People v. Gutierrez
(2014) 58 Cal.4th 1354 and People v. Caballero (2012) 55 Cal.4th 262. In response the
Attorney General contends the sentence imposed is not the functional equivalent of life
without the possibility of parole because the minimum portion of the indeterminate term
does not exceed Arevalo’s natural life expectancy and, in any event, pursuant to Penal
Code section 3051, subdivision (b)(3), he will receive a parole suitability hearing during
his 25th year of incarceration.
13
       Citing to final data for 2010—the year Rodriguez was shot and killed—in the
National Vital Statistics Report from the United States Centers for Disease Control and
Prevention, Arevalo states the life expectancy for a 20-year-old Hispanic male was 59.3
years.
                                             32
       The constitutionality of Arevalo’s sentence is moot in light of our reversal of his
conviction for second degree murder. Moreover, even though a similar sentencing issue
could arise if Arevalo is convicted of murder with related gang and firearm-use
enhancements following a new trial, it is likely the Supreme Court will resolve the two
fundamental questions presented by Arevalo in the near future. In In re Alatriste
(S214652, rev. granted Feb. 19, 2014) and In re Bonilla (S214960, rev. granted Feb. 19,
2014) the Supreme Court will consider when an indeterminate life sentence with the
possibility of parole after the defendant has served a significant minimum term becomes
the functional equivalent of life without the possibility of parole and whether Senate Bill
No. 260 (Reg. Sess. 2013-2014), which added Penal Code section 3051 providing for a
parole suitability hearing after a maximum of 25 years for most juvenile offenders
serving life sentences, moots any claim that such a sentence violates the Eighth
Amendment. Both cases are now fully briefed and awaiting oral argument. The answers
to those questions, therefore, will likely be available to the trial court before any further
sentencing hearing takes place.
                                       DISPOSITION
       The judgments are reversed, and the cause remanded for new trials and for further
proceedings not inconsistent with this opinion.




                                                   PERLUSS, P. J.

       We concur:



              ZELON, J.                            IWASAKI, J. *



*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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