Filed 7/21/14 P. v. Diaz CA4/2

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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E055382

v.                                                                        (Super.Ct.No. FSB1002903)

CARLOS DIAZ et al.,                                                       OPINION

         Defendants and Appellants.



         APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson,

Jr., Judge. Affirmed with directions.

         Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and

Appellant Carlos Diaz.

         Randi D. Covin, under appointment by the Court of Appeal, for Defendant and

Appellant Roberto Figueroa.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Eric A.

Swenson and Jennifer Truong, Deputy Attorneys General, for Plaintiff and Respondent.

                                                              1
       This case involves two defendants, Carlos Diaz (Diaz) and Roberto Figueroa

(Figueroa) (collectively “defendants”). Defendants had separate juries at a single trial.

The juries found defendants guilty of first degree murder. (Pen. Code, § 187, subd.

(a).)1 The juries found true the allegations that defendants (1) committed the murder to

benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)); and (2) during the murder

defendants discharged a firearm causing death—principal as to Diaz and vicarious as to

Figueroa (§ 12022.53, subd. (d)). Diaz’s jury also found true the allegations that Diaz

(1) discharged a firearm during the murder (§ 12022.53, subd. (c));2 and (2) used a

firearm during the murder (§ 12022.53, subd. (b)). At the time of the murder, Diaz was

15 years old and Figueroa was an adult. The trial court sentenced defendants to prison

for indeterminate terms of 50 years to life.3

       Figueroa raises five issues on appeal. First, Figueroa asserts the trial court erred

by denying his motion to suppress statements made to police officers. Second, Figueroa

contends the trial court erred by not instructing the jury that accomplice testimony

should be viewed with caution. Third, Figueroa asserts the cumulative error violated his

right of due process. Fourth, Figueroa contends the trial court erred by imposing a 10-


       1 All subsequent statutory references will be to the Penal Code unless otherwise
indicated.

       2  There is conflicting information in the record concerning whether Figueroa
also suffered a true finding on a section 12022.53, subdivision (c), firearm
enhancement. We address the inconsistency post.

       3 The trial court ordered that Diaz be housed at juvenile hall until his 18th
birthday, when he would be sent to prison.


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year sentence for the gang enhancement (§ 186.22, subd. (b)(1)(C)), rather than a

minimum parole date. The People agree with Figueroa’s fourth contention. Fifth,

Figueroa contends his prison sentence constitutes cruel and unusual punishment. We

(1) strike the prison term for Figueroa’s gang enhancement and impose a minimum

parole eligibility date, and (2) provide directions related to the section 12022.53,

subdivision (c) firearm enhancement, but otherwise affirm the judgment in Figueroa’s

case.

        Diaz raises three issues on appeal. First, Diaz contends the trial court erred by

admitting statements Diaz made following an involuntary Miranda4 waiver. Second,

Diaz asserts his 50-years-to-life sentence constitutes cruel and unusual punishment due

to his age at the time he murdered the victim. Third, Diaz asserts the trial court erred by

imposing a determinate prison term for the gang enhancement, rather than a minimum

parole date. (§ 186.22, subd. (b)(1)(C).) The People agree with Diaz’s third contention.

We will strike the 10-year gang enhancement sentence and impose a 15-year minimum

parole eligibility provision for the gang enhancement (§ 186.22, subd. (b)), but

otherwise affirm the judgment in Diaz’s case.

                      FACTUAL AND PROCEDURAL HISTORY

        Figueroa was a member of the West Side Verdugo gang, which is based in San

Bernardino. Diaz was a member of the South Los Gangsters gang, based in Los

Angeles. Diaz moved from Los Angeles to Highland. If Diaz committed a murder in


        4   Miranda v. Arizona (1966) 384 U.S. 436.


                                             3
the San Bernardino area, witnessed by a West Side Verdugo member, then Diaz would

be permitted to become a member of West Side Verdugo.

       A woman, Cinasha Rojas (Rojas), was an associate of the West Side Verdugo

gang. Rojas had known Figueroa for approximately four years and had known Diaz for

approximately one year. The victim, who was male, was a member of the Rollin’

Twenties Crips gang, which is based in Long Beach.

       On July 12, 2010, Figueroa visited Rojas’s house. Figueroa had a sawed-off rifle

or shotgun in his backpack, which he was planning to sell. Figueroa also had

ammunition with yellow casings. Figueroa left Rojas’s house, but returned that evening

with the same backpack. Rojas, Figueroa, and two other people decided to go to a

liquor store. Rojas and one of the unidentified people rode bicycles to the store, while

Figueroa and the fourth person walked. Figueroa and the fourth person were

approximately one and a half blocks behind Rojas.

       On the way to the store, Rojas saw the victim with two other people. Rojas said,

“‘Hey.’” The victim asked, “‘What do you want?’” Rojas asked, “‘Where are you

from?’” The victim said he was “from Rolling Twenty Crip[s].” Rojas responded that

she was “from West Side Verdugo.” The victim said, “‘Who cares?’” and pushed

Rojas’s chest, knocking her over along with her bicycle. Rojas “got back up, picked up

her bike, and said, ‘Oh, we’ll see.’” Rojas rode away. The victim walked to his

parents’ house, which was located in Highland.

       Rojas rode her bicycle toward Figueroa, who at that point had been joined by

Diaz. Rojas told Figueroa and Diaz about her encounter with the victim. Figueroa said


                                            4
he wanted to fight the victim, but Rojas said the victim had a gun, so Figueroa walked

Rojas home and retrieved his backpack, which he had left at her house.

       At the victim’s parents’ house, the victim and his girlfriend sat outside, in the

front yard, talking to one another while the victim smoked cigarettes. A “couple of

boys” walked by the house. After approximately 30 minutes, the victim asked his

girlfriend to “warm up the car.” The victim walked toward a gate, but did not open it.

The victim instructed his girlfriend to go inside the house and get the victim’s brothers.

While the victim’s girlfriend was inside the house, she heard two gunshots.

       The victim’s girlfriend saw the victim on the ground, behind the gate. The

victim’s sister called 911. The victim suffered two shotgun wounds—one in the right

side of his chest and one in the left temple. The shot to the temple was fatal.

       Rojas noticed she missed a call that came from Diaz’s mother’s telephone. Rojas

returned the call and Figueroa answered. Figueroa said, “[I]t’s taken care of.” Figueroa

laughed, and it sounded like Diaz may have also been laughing. Rojas assumed “they

seen [the victim] again and beat him up or something.” Two expended yellow shotgun

shells were found near the victim’s feet. No firearms were found on the victim’s body

or at his parents’ house. When searching Diaz’s bedroom, police found a yellow

unfired shotgun shell.

       During a police interview, Diaz admitted shooting the victim. Diaz said, “I shot

him.” Diaz explained that he and Figueroa stood on a corner arguing over who would

shoot the victim because they both wanted to be the shooter, but Diaz prevailed. Diaz

approached the victim, and said, “[W]asn’t you the one that used to put the burner on,


                                             5
on the homies earlier?” The victim replied, “[O]h yeah, that was me, why, what’s up?”

Diaz removed the gun from his waistband. The victim looked at Diaz with an

expression reflecting, “[W]hat the hell are you doing?” Diaz shot the victim. Diaz was

less than three feet away from the victim when he shot the gun. The victim collapsed.

Diaz shot the victim a second time because he wanted to ensure the victim would not be

a witness. Figueroa took the gun from Diaz.

         A police detective asked Diaz, “How do you feel about knowin[g] that guy’s

dead?” Diaz responded, “You mean, honestly, [what] happened, happened, ya know,

what can I do?” The detective asked if Diaz felt sorry. Diaz asked, “What for?”

         Figueroa was interviewed by San Bernardino County Sheriff’s Detectives Scott

Cannon (Cannon) and Dave Johnson (Johnson). Figueroa admitted giving Diaz the gun

and 10 or 11 shells with yellow casings. Figueroa said he thought Diaz planned to use

the gun to scare the victim, but he was worried Diaz might do more. Figueroa was

present during the shooting. Figueroa heard the victim say to Diaz, “[N]o disrespect,”

at which point, Diaz shot the victim. Figueroa and Diaz ran away after the shots were

fired.




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                                     DISCUSSION

       A.     FIGUEROA

              1.     MOTION TO SUPPRESS

                     a)     Procedural History

                            i.     Interview

       Figueroa’s interview with Cannon and Johnson began on July 13 at 7:45 p.m.

Cannon said he appreciated Figueroa “coming down to talk with” the detectives.

Cannon explained the door to the room was unlocked, but closed due to noise outside

the room. Figueroa said he was “fine with that.” Cannon asked if Figueroa was willing

to talk, and Figueroa said he was willing.

       Cannon asked Figueroa about the day of the murder. Figueroa said he smoked

marijuana, went running, and visited family and friends. Cannon asked if Figueroa had

heard about “anything . . . that went down” in the neighborhood the night of the murder.

Figueroa said he had not heard of anything. Cannon told Figueroa a person was fatally

shot in the neighborhood. Cannon asked if Figueroa might know who was responsible

for the murder. Figueroa said he did not know. Cannon asked if Figueroa would ever

be capable of shooting another person. Figueroa said he would walk away if he were in

a fight—he would not shoot a person. Cannon asked if a person would be lying if a

person said he saw Figueroa walking down the street where the victim was killed on the

night of the shooting. Figueroa said the person would be lying.

       Cannon told Figueroa he appreciated Figueroa coming to the station and talking

to the detectives. Cannon asked Figueroa if he would take a polygraph test. Figueroa


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agreed to take the test. The interview continued while a polygraph examiner was

located; Figueroa discussed his past arrests, and engaged in small talk, then the

interview was interrupted to allow for the polygraph exam. Afterward, Cannon began

the “post poly[graph] interview” by saying, “Alright so basically here we are again um

door still unlocked ok, we keep it closed just for the noise level. Um once again we

really do appreciate you coming down and speaking with us. Um you’re still willing to

talk to us for a little while longer?” Figueroa responded, “Yeahh yeahh.”

       Cannon again asked Figueroa about the day of the murder. Cannon told Figueroa

that he knew Figueroa was lying about not having information regarding the shooting.

Figueroa admitted seeing “shots go off,” but then said he only heard the gunfire.

Cannon accused Figueroa of lying when he switched his story to only hearing gunfire—

not seeing it. Figueroa said, “I’ll be killed.” Cannon responded, “No[,] you’re not

gonna be killed.” Figueroa admitted to being in “the vicinity” at the time of the

shooting.

       Cannon asked Figueroa to describe what he saw. Figueroa said he saw “the

flashes” from “around the corner.” Figueroa expressed concern that he would be killed

for talking to the detectives. Cannon told Figueroa not to be worried about

repercussions from Westside Verdugo members, because there would be “bigger

problems” if he lied to the detectives. Cannon told Figueroa he knew (1) Figueroa was

at the scene of the shooting, (2) Figueroa had a gun, (3) there was a confrontation,

(4) the victim died, and (5) Figueroa did not appear to be injured. Cannon told Figueroa

he was trying to make sense of the foregoing evidence—trying to understand the reason


                                            8
for the shooting. Cannon said, “So if you wanna continue and understand that I’ve got

evidence that clearly links you to this shooting . . . [¶] . . . [¶] . . . it’s only gonna look

worse for you when we go forward and we present this to the district attorney’s office.”

Figueroa responded, “Yeahh it is.”

       As the interview continued, the following exchange took place

       “Cannon: So you make little mistakes ok like that you say what happened when

you wanted to say I heard, you said I saw, I know you saw it ok. I know you were

there. I know that you played a rol[e] in this ok[. W]hat we need to understand is what

was your rol[e], why did it happen, how did it happen, ok these things are all

important.”

       “Figueroa: Plead the 5th.

       “Cannon: Well that’s that’s unfortunate if you wanna go that route.

       “Figueroa: Yes it is but I’ll be killed anyways.

       “Cannon: Well you’re not gonna be killed Roberto. Like I said lets put the

drama where it belongs in this room.

       “Figueroa: (Inaudible) and I know I will.

       “Cannon: Roberto who did you hear that from?

       “Figueroa: I’m not a rat sir.”

       Shortly thereafter, as the interview continued, the following discussion occurred:

       “Cannon: Ok I’m not telling you to admit [to] anything you didn’t do. Do you

know what a, do you know what a photographic lineup is? What is that?




                                                9
       “Figueroa: When um when a photo like they put the photos down and you have

to circle pictures.

       “Cannon: Ok.

       “Figueroa: Yeah.

       “Cannon: Ok do you know that we have a photographic lineup that we showed

to 3 different people and two of the people were absolutely sure that you were there and

one was about 75% sure you were there at the scene when this went down? Roberto sit

up, wake up ok. It’s not time to sleep it’s time to confront.

       “Figueroa: [W]e been at this a long time now.

       Cannon: I understand it’s time to confront what’s going on ok. Confront it head

on ok.”

       Figueroa denied killing the victim. Cannon informed Figueroa that deputies

were serving a search warrant at Figueroa’s house and finding “[e]vidence that links

[Figueroa] to this crime.” Figueroa again denied shooting the victim. Cannon asked

Figueroa to supply details regarding the shooting. Figueroa said, “It’s not like I’m

gonna get outta here so . . . . [¶] . . . [¶] I understand where you guys are comin[g] from

but there’s no way now that you guys can help me so what does it matter?” As the

interview continued, the following discussion occurred:

       “Cannon: By what you’re saying is that you’re not responsible.

       “Figueroa: I know I’m not.

       “Cannon: For this guy being dead.




                                            10
       “Figueroa: I know I’m not, I know I’m not, I know this . . . . man I know this

and I know this, I know this.

       “Cannon: Well how does the evidence from the scene get to your house then? If

you’re not responsible how does the evidence from the scene get to your house? Tell

me that.

       “Figueroa: I don’t know.

       “Cannon: You don’t know! Is the guy who is responsible for it and you’re not

naming names but the guy who’s responsible did he make it?

       “Figueroa: Exactly.

       “Cannon: To your house and leave the evidence at your house from the scene?

       “Figueroa: No.

       “Cannon: No, then how did the evidence that we found at the scene, same

similar stuff get to your house, how’s that happen?

       “Figueroa: I think I’ve talked enough.

       “Cannon: Who’s Jaba?

       “Figueroa: Jaba?”

       As the interview continued, Figueroa again denied shooting the victim, but

refused to identify the shooter due to his fear of being a “snitch.” Johnson interjected

into the conversation. Johnson said, “Roberto do me a favor. Do you mind if I have a

couple more minutes of your time bro?” Figueroa responded, “Yeah yeah yeah.”

Johnson asked Figueroa to describe the flashes he saw at the time of the shooting.




                                            11
Figueroa said he did not want to make a statement about what he saw because he feared

for his life.

        Figueroa said, “I’m gonna get locked up for something that I didn’t do.” Johnson

responded, “Hang on dude[.] I don’t know what you’re gonna tell me ok. I’m trying to

give you an opportunity that that that doors unlocked that doors open ok. We’ve we’ve

talked about that several times ok. I want to hear your story dude. I’m trying to give

you an opportunity because like I said it may[]be different than what I think or what I’m

being told or what it looks like.”

        Shortly thereafter, Figueroa said, “Like I wish one day I could see my mom or

something like that but I know it’s not gonna happen now.” Johnson responded, “No

now what you need to ask yourself dude, like I told you that door’s open dude.”

Figueroa said, “It is but it doesn’t matter.” Johnson told Figueroa to stop worrying

about what might happen in the future. Cannon asked Figueroa to explain what

happened during the shooting so Figueroa would not have to go to “prison for someone

else’s stupidity.”

        Figueroa said he heard someone say “no disrespect” before the shots were fired.

Figueroa admitted he lied earlier in the interview about where he had been during the

day of the murder. Johnson told Figueroa they would “wipe the slate clean,” and start

from the beginning. Figueroa said he was walking down the street when he saw the

shooter and victim confronting one another. Figueroa heard someone say “no

disrespect,” two shots were fired, and Figueroa ran away. Figueroa said he “just

happen[ed] to walk by at the wrong time.” Figueroa denied knowing the shooter and


                                           12
the victim. Figueroa said he could not describe the victim because after the shooting the

victim “didn’t have no freakin[g] head.”

       Johnson offered Figueroa a soda and food. Figueroa took both. Johnson told

Figueroa where the restroom was located, in case he needed it. Johnson said he was

trying to find pictures for Figueroa to look at. Figueroa said, “Cause that’s I don’t don’t

mind helpin you guys out man ya know but.” The interview stopped at 1:33 a.m., and

resumed at 1:52 a.m.

       When the interview resumed, Cannon informed Figueroa of his Miranda rights.

After being informed of his rights, Figueroa asked, “[D]oes that mean I’m go[ing] to

jail?” Cannon replied, “No that doesn’t mean that, that just means we want to hammer

some things out.” The interview continued. Johnson showed Figueroa photographs.

Figueroa said he had seen some of the people “around.” Johnson told Figueroa it was

important for him to tell his story.

       Figueroa said, “[S]omebody got knocked off their bike, somebody got hurt, and

the person that did this had a gun.” Diaz told Figueroa the story about the altercation

with Rojas and the bicycle, and Diaz told Figueroa he needed a gun. When Figueroa

and Diaz were around the corner from the victim’s house, Figueroa gave a gun to Diaz,

along with eight to ten yellow shells in a black trash bag. Diaz then began walking

away from Figueroa—Diaz “started taking off.” Figueroa was behind Diaz, “like dude

where you going,” “what are you doing man.” Diaz did not tell Figueroa what he

planned to do with the gun. As Figueroa approached he heard a quick verbal

confrontation, he specifically heard the words “no disrespect,” and then he heard


                                            13
gunshots. Figueroa was shocked Diaz shot the victim—Figueroa thought Diaz was just

planning to scare the victim. Figueroa ran away. The interview ended at 3:12 a.m.

                            ii.    Motion

       Prior to trial, Figueroa moved to suppress statements he made to Detectives

Cannon and Johnson. During the interview, Figueroa said, “‘Plead the 5th.’” Later

during the interview, Figueroa said, “‘I think I’ve talked enough.’” Figueroa asserted

all the statements he made after saying, “‘Plead the 5th,’” should be suppressed because

the statement was an invocation of his right to remain silent. Figueroa further asserted

his Miranda waiver was involuntary because the police interview began at 7:45 p.m.,

and he was not informed of his Miranda rights until 1:00 a.m. the following morning.

Figueroa asserted the detectives cleverly “softened him up,” resulting in an involuntary

waiver.

       The People asserted Figueroa was not in custody when he made the statement

about pleading the Fifth, so Miranda rules did not apply. The People argued, “Figueroa

was free to leave. Detectives told him over and over that the door was unlocked. He

was not in handcuffs, he did not have guns pointed at him, and he was not under arrest

at that time. Detectives asked Figueroa if he would be willing to keep talking to them

and he did.” In regard to statements made after the detectives informed Figueroa of his

Miranda rights, the People asserted Figueroa’s waiver was voluntary because “Figueroa

continued to speak with the same detectives after being read his Miranda rights.”

       At a hearing on the motion, Figueroa’s trial counsel asserted Figueroa would

have reasonably felt he was in custody when he “pled the Fifth” because the interview


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room door was closed, two detectives were in the room, and one of the detectives

responded, “‘[T]hat’s unfortunate if you wanna go that route.’” Figueroa then said,

“‘Yes. It is, but I’ll be killed anyways.’” Defense counsel asserted that under these

circumstances, a reasonable person would believe he was in custody. Alternatively,

counsel asserted that if Figueroa were not in custody when he “pled the Fifth,” then he

was in custody later during the interview when he said he had “‘talked enough.’”

       The prosecutor noted (1) the detectives asked Figueroa if he was willing to talk

with them, (2) the detectives explained they were closing the door only due to the noise

level, (3) the detectives informed Figueroa the door was unlocked, (4) the detectives

provided Figueroa with food and water, (5) Figueroa voluntarily came to the police

station, and (6) Figueroa had his bicycle so he had a means of transportation if he

wanted to leave. The prosecutor asserted Figueroa was free to leave until the detectives

read him his Miranda rights.

       Defense counsel asserted a person does not have to be in custody in order to

invoke the right to remain silent. Therefore, Figueroa’s statements should be

suppressed because, regardless of whether he was in custody, police should have

stopped questioning him when he “pled the Fifth”—based upon his right to remain

silent, not Miranda.

       The trial court concluded Miranda only applies when a person is in custody. The

trial court found Figueroa was not in custody when he “pled the Fifth” and said he had

“talked enough.” Accordingly, the trial court found there were no Miranda violations.

The trial court denied Figueroa’s motion to suppress.


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                      b)      Analysis

       Figueroa contends the trial court erred by denying his motion to suppress because

(1) he invoked his Miranda right to remain silent; (2) he did not knowingly waive his

Miranda rights; and (3) his statement was involuntary, which implicates his due process

rights. We address each issue in turn.

                              i.     Custody

       Figueroa asserts the trial court erred by denying his suppression motion because

he was in custody or at imminent risk of being taken into custody when the statements

were made. Figueroa contends the detectives should have stopped questioning him

when he “pled the Fifth.”

       “‘Absent “custodial interrogation,” Miranda simply does not come into play.’

[Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “The question [of] whether

[a] defendant was in custody for Miranda purposes is a mixed question of law and fact.

[Citation.] ‘Two discrete inquiries are essential to the determination: first, what were

the circumstances surrounding the interrogation; and second, given those circumstances,

would a reasonable person have felt he or she was not at liberty to terminate the

interrogation and leave. Once the scene is . . . reconstructed, the court must apply an

objective test to resolve “the ultimate inquiry”: “[was] there a ‘formal arrest or restraint

on freedom of movement’ of the degree associated with a formal arrest.” [Citations.]

The first inquiry . . . is distinctly factual . . . . The second inquiry, however, calls for

application of the controlling legal standard to the historical facts. This ultimate

determination . . . presents a “mixed question of law and fact” . . . . [Citation.]


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Accordingly, we apply a deferential substantial evidence standard [citation] to the trial

court’s conclusions regarding ‘“basic, primary, or historical facts: facts ‘in the sense of

recital of external events and the credibility of their narrators . . . .’”’ [Citation.]

Having determined the propriety of the court’s findings under that standard, we

independently decide whether ‘a reasonable person [would] have felt he or she was not

at liberty to terminate the interrogation and leave.’ [Citation.]” (Id. at pp. 401-402.)

       We begin with the circumstances surrounding the interview. The interview

lasted from 7:45 p.m. until 3:12 a.m. the following morning. Figueroa was questioned

by two detectives; however, the detectives were not always in the room together, which

means Figueroa was alone with a single detective at times. The detectives informed and

thrice reminded Figueroa that the door to the room was unlocked.

       We now turn to the next inquiry: given those circumstances, would a reasonable

person have felt he or she was not at liberty to terminate the interrogation and leave.

There are many relevant factors to consider when determining whether a person would

have felt free to terminate the interrogation and leave.

       The first factor concerns who initiated the contact; if it was the police, did the

person voluntarily agree to the interview. (People v. Aguilera (1996) 51 Cal.App.4th

1151, 1162 (Aguilera).) The transcript of the interview reflects Figueroa voluntarily

came to the sheriff’s station to participate in the interview. The voluntary nature of the

interview can be inferred from Cannon saying, “I appreciate you coming down to talk

with us,” and Figueroa explicitly agreeing to talk with the detectives.




                                               17
       The second factor addresses “whether the express purpose of the interview was

to question the person as a witness or a suspect.” (Aguilera, supra, 51 Cal.App.4th at p.

1162.) It appears from the interview that detectives were unsure whether Figueroa was

a witness or possible suspect. Cannon believed Figueroa at least saw the shooting, as

evinced by Cannon accusing Figueroa of lying about his whereabouts on the night of the

murder. As Figueroa slowly admitted being more involved in the crime, the detectives

knew Figueroa was not merely a witness, i.e., Figueroa admitted giving Diaz the gun.

However, it appears at the beginning of the interview, the purpose of the questions was

to assess Figueroa’s level of involvement as a witness or possible suspect.

       The third factor concerns where the interview took place. (Aguilera, supra, 51

Cal.App.4th at p. 1162.) The interview took place at a sheriff’s station, in a room with a

closed, but unlocked door. The fourth factor is “whether police informed the person

that he or she was under arrest or in custody.” The detectives informed and thrice

reminded Figueroa that the door to the room was unlocked. When Cannon read

Figueroa his Miranda rights, it can be inferred Figueroa was informed that he was in

custody, although Cannon told Figueroa that he would not necessarily be going to jail.

       The fifth factor is whether officers “informed the person that he or she was free

to terminate the interview and leave at any time and/or whether the person’s conduct

indicated an awareness of such freedom.” (Aguilera, supra, 51 Cal.App.4th at p. 1162.)

As set forth ante, the detectives informed and reminded Figueroa three times that the

door to the room was unlocked. During the first reminder, Cannon again asked

Figueroa if he was still willing to talk with the detectives. Figueroa said he was willing.


                                            18
During the third reminder, Figueroa told Johnson it did not matter if the door was

unlocked because he believed he was going to jail or prison. Johnson responded, “No[,]

you don’t know that because like I said I don’t know what you have to tell me.” The

detectives repeatedly told Figueroa the door was unlocked, asked if he was willing to

continue talking, and informed him he was not in custody. Given these statements, the

detectives informed Figueroa that he was free to leave because they repeatedly

reminded Figueroa of the voluntary nature of the discussion.

      The sixth factor addresses “whether there were restrictions on the person’s

freedom of movement during the interview.” (Aguilera, supra, 51 Cal.App.4th at p.

1162.) The door to the interview room was unlocked and in the midst of the interview,

Johnson said, “If you need to use the restroom or something dude it’s right out here on

the (Inaudible).” Thus, it does not appear there were any restrictions on Figueroa’s

movement, since he was not locked in the room and was invited to leave the room to use

the restroom.

      The seventh factor concerns how long the interview lasted. (Aguilera, supra, 51

Cal.App.4th at p. 1162.) The interview lasted from 7:45 p.m. until 3:12 a.m. the

following morning, which is approximately seven and one-half hours. There was a

break during the interview from 1:33 a.m. to 1:52 a.m. Figueroa ate a burrito during the

break. The interview was somewhat long, lasting close to the length of an average

person’s eight-hour work day.

      The eighth factor concerns how many law enforcement officers participated in

the interview. (Aguilera, supra, 51 Cal.App.4th at p. 1162.) Two detectives


                                           19
participated in the interview; however, they were not always both present in the room.

At times, only Figueroa and a single detective were present.

       The ninth factor addresses whether officers “dominated and controlled the course

of the interrogation.” (Aguilera, supra, 51 Cal.App.4th at p. 1162.) The detectives

directed the majority of the discussion with their questions; however, they also stopped

to address Figueroa’s concerns. For example, Figueroa often expressed concern that he

would be killed for being a “snitch.” The detectives took time to discuss that concern

with Figueroa, thus allowing Figueroa to direct portions of the conversation.

       The tenth factor concerns whether officers “manifested a belief that the person

was culpable and they had evidence to prove it.” (Aguilera, supra, 51 Cal.App.4th at p.

1162.) During the interview, Cannon said, “I’ve got evidence that clearly links you to

this shooting.” After the third reminder about the door to the room being unlocked,

Figueroa told Johnson it did not matter if the door was unlocked because he believed he

was going to jail or prison. Johnson responded, “No[,] you don’t know that because like

I said I don’t know what you have to tell me. Thus, Cannon and Johnson contradicted

one another about whether there was evidence clearly implicating Figueroa in a crime.

       The eleventh factor concerns whether the officers were aggressive,

confrontational, and/or accusatory. (Aguilera, supra, 51 Cal.App.4th at p. 1162.) It

appears from the inclusion of exclamation marks in the transcript that there was at least

a moment where Cannon may have been exasperated. When Figueroa said he did not

know how evidence from the shooting came to be in his house, Cannon responded,

“You don’t know!” At another point Cannon told Figueroa that he would have “bigger


                                           20
problems” if he lied to the detectives than he would face from being viewed as a snitch

by Westside Verdugo members. However, the detectives mostly consoled Figueroa

when he said he feared for his life due to talking to the detectives.

       The twelfth factor is “whether the police used interrogation techniques to

pressure the suspect.” (Aguilera, supra, 51 Cal.App.4th at p. 1162.) During the

interview, Figueroa agreed to participate in a polygraph examination. During the post-

polygraph examination, Cannon told Figueroa he had evidence implicating Figueroa as

a participant in the shooting. Cannon also told Figueroa deputies were serving a search

warrant at Figueroa’s house while the interview was taking place. Thus, there were

some interrogation techniques used to pressure Figueroa into being honest.

       The thirteenth factor is, “whether the person was arrested at the end of the

interrogation.” (Aguilera, supra, 51 Cal.App.4th at p. 1162.) During the course of the

interview, Cannon read Figueroa his Miranda rights. Figueroa was not formally

arrested during the interview, but he was arrested on July 14, which is the day the

interview ended. Thus, it can be inferred Figueroa was arrested shortly after the

interview was completed.

       Upon review of all the foregoing factors, we conclude a reasonable person would

have felt he could terminate the interrogation and leave. Of particular note in our

conclusion is the fact that the detectives repeatedly reminded Figueroa that the door to

the interview room was unlocked. Figueroa appeared resigned to a fate of prison or

death, and in this somewhat hopeless state chose not to leave, but the fact remains that a




                                             21
reasonable person who was repeatedly reminded that the doors were unlocked would

not have felt compelled to stay in the room with the detectives.

       While our review of the various factors reflects a somewhat long interview with

some interrogation techniques being used and an arrest following the interview, we

come back to the fact that Figueroa was free to walk away from the interview—and was

repeatedly reminded that he could do so. It is these reminders about the unlocked door

and invitation to freely leave the room to use the restroom that would cause a reasonable

person to conclude he could end the interview and leave if he so chose. Accordingly,

we conclude the trial court properly denied Figueroa’s motion because Figueroa was not

in custody at the time he “pled the Fifth” or said he had “talked enough.” Since

Figueroa was not in custody, Miranda did not apply. (People v. Ochoa, supra, 19

Cal.4th at p. 401.)

       Figueroa asserts a reasonable person would not have felt free to leave the

interview because the detective woke Figueroa when he was falling asleep, the

interview lasted for over seven hours, the detectives’ questions were accusatory, and the

detectives dominated the interview. We agree with Figueroa that the interview was

somewhat lengthy and that Figueroa had to be woken up. However, the fact remains

that Figueroa was repeatedly reminded the door was unlocked. The detectives were not

screaming at Figueroa; they brought him food and tried to console him when he

expressed fear of retribution. Thus, this is not a situation where the overbearing nature

of the interrogation would cause a person to feel locked in the room despite the

unlocked door. The detectives approached Figueroa in a reasonable manner and


                                            22
repeatedly told him the door was unlocked. In that situation, a reasonable person would

feel free to stop the interview and leave.

                             ii.    Waiver

       Next, Figueroa asserts his Miranda waiver was involuntary because it was not

knowingly made. “To establish a valid waiver of Miranda rights, the prosecution must

show by a preponderance of the evidence that the waiver was knowing, intelligent, and

voluntary. [Citations.] [¶] Determining the validity of a Miranda rights waiver

requires ‘an evaluation of the defendant’s state of mind’ [citation] and ‘inquiry into all

the circumstances surrounding the interrogation.’” (People v. Nelson (2012) 53 Cal.4th

367, 374-375.) “On appeal, we conduct an independent review of the trial court’s legal

determination and rely upon the trial court’s findings on disputed facts if supported by

substantial evidence. [Citation.]” (People v. Williams (2010) 49 Cal.4th 405, 425.)

       As set forth ante, Figueroa willingly spoke to the detectives during a non-

custodial interview. When Figueroa was read his Miranda rights, his version of the

shooting was that he was present, but only because he “just happen[ed] to walk by at the

wrong time.” After being informed of his rights, Figueroa asked, “[D]oes that mean I’m

go[ing] to jail?” Cannon replied, “No that doesn’t mean that, that just means we want to

hammer some things out.”

       Figueroa’s comment about going to jail reflects that he understood the

consequences of speaking to the detectives, i.e., he could be arrested. Cannon informed

Figueroa that he was not yet going to jail, which is understandable since Figueroa said

he was merely a bystander during the shooting. Thus, Figueroa knew he could


                                             23
potentially go to jail if he continued talking to the detectives. Additionally, just prior to

Figueroa being read his rights, the detectives and Figueroa took approximately a 20-

minute break while Figueroa ate a burrito. Thus, Figueroa was not in the midst of being

questioned when he waived his rights—he had been given a break and food. Given that

there was a 20 minute break in the questioning, Figueroa was able to eat, and Figueroa

appreciated the consequences of continuing to talk to the detectives (i.e., the potential of

going to jail), it appears Figueroa’s waiver was knowing and voluntary.

       Figueroa asserts the detectives ignored his previous invocations of his Miranda

rights (e.g., “I plead the Fifth”), woke him up when he was falling asleep, interviewed

him for hours, accused him of participating in the crime, and denied that the Miranda

warning meant Figueroa would be going to jail thus minimizing the significance of

Figueroa waiving his rights. Figueroa paints the scene of a harsh interrogation. In

reviewing the transcript, the interview is far more reasonable than presented by

Figueroa. For example, if Figueroa was tired and wanted to sleep, he could have left.

The detectives repeatedly reminded Figueroa the doors were unlocked. If Figueroa was

uncomfortable with the detectives continuing to talk to him after he “pled the Fifth,”

then he could have left because the doors were unlocked. The interview was not as

ruthless as Figueroa presents it. As a result, we find his argument to be unpersuasive.

                             iii.   Due Process

       Figueroa asserts all of his statements should have been suppressed because they

were involuntary, and thus violated his rights of due process. “In determining whether a

confession was voluntary, ‘“[t]he question is whether defendant’s choice to confess was


                                             24
not ‘essentially free’ because his [or her] will was overborne.”’ [Citation.] Whether the

confession was voluntary depends upon the totality of the circumstances. [Citations.]

‘“On appeal, the trial court’s findings as to the circumstances surrounding the

confession are upheld if supported by substantial evidence, but the trial court’s finding

as to the voluntariness of the confession is subject to independent review.”’ [Citation.]”

(People v. Carrington (2009) 47 Cal.4th 145, 169.)

       As set forth ante, the interview was approximately seven hours long and took

place late at night. However, the door to the interview room was unlocked, the

detectives reminded Figueroa the door was unlocked, and prior to Figueroa waiving his

Miranda rights he was given a 20 minute break and food. Given these circumstances,

we conclude Figueroa’s decision to confess was voluntary because his will was not

overborne by the circumstances of the interview. The interview may have felt long and

tiresome, but it was not so harsh that Figueroa’s will was overcome by the

circumstances.

       Figueroa asserts that he was 20 years old, taking medication for attention deficit

hyperactivity disorder, and recently hospitalized due to being a danger to himself.

Figueroa contends the detective “deceptive and coercive interrogation techniques” for

multiple hours late at night caused Figueroa’s will to be overcome, thus causing an

involuntary confession. In looking at the facts concerning Figueroa, we look at the

whole transcript. The transcript reflects Figueroa had been arrested four or five times

for assault with a deadly weapon, public drunkenness, trespass, and theft. Figueroa told

the detectives he had “just got outta West Valley [Detention Center].” Figueroa laughed


                                            25
when discussing being “beat up” by members of the San Bernardino Police Department.

Figueroa discussed prior times he spoke to the police, he said, “They sat down and

talked to me, took a picture and then I had to tell ‘em my side of the story.” Figueroa

explained that he lied to the police and blamed a prior crime on his cousins because he

was “ashamed” of his actions. Given that Figueroa had experience being interviewed

by law enforcement officers and choosing what details to be honest about, we are not

persuaded by his argument that given his background his will would have been

overcome by the circumstances of the interview.

              2.     ACCOMPLICE TESTIMONY

       Figueroa contends the trial court erred by not instructing the jury that Rojas’s

accomplice testimony should be viewed with caution. We disagree.

       We apply the independent standard of review when considering alleged

instructional errors. (People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1506.)

“‘When an accomplice is called as a witness by the prosecution, the court must instruct

the jurors sua sponte to distrust [her] testimony. [Citations.]’” (People v. Guiuan

(1998) 18 Cal.4th 558, 564.)

       “At common law, a person who encouraged or facilitated the commission of a

crime could be held criminally liable for the crime he encouraged or facilitated, as well

as for ‘any other offense that was a “natural and probable consequence” of the crime

aided and abetted.’ [Citation.] The natural and probable consequences doctrine is

based on the recognition that those who aid and abet should be responsible for the harm




                                            26
they have naturally, probably, and foreseeably put in motion. [Citation.]” (People v.

Avila (2006) 38 Cal.4th 491, 567; see also § 31.)

       At trial, Rojas testified as a prosecution witness. The evidence reflects the victim

pushed Rojas off her bicycle. Rojas “got back up, picked up her bike, and said, ‘Oh,

we’ll see’” to the victim. Rojas rode away. Rojas rode her bicycle toward Figueroa,

who at that point had been joined by Diaz. Rojas told Figueroa and Diaz about her

encounter with the victim and pointed the victim out to Figueroa and Diaz. Figueroa

said he wanted to fight the victim, but Rojas said the victim had a gun, so the group

walked to Rojas’s house where Figueroa retrieved his backpack. Rojas had seen a

firearm and ammunition in Figueroa’s backpack when he initially arrived at her house

that day. The group then walked to Diaz’s house, which was approximately 10 houses

away, and a short while later Figueroa escorted Rojas back to her house, and Rojas

stayed at home. That night, Rojas missed a telephone call from Diaz’s mother’s

telephone. Rojas returned the call. Figueroa answered and said “[I]t’s taken care of.”

       Detective Haynes testified as a defense witness. Haynes was present during the

law enforcement interview of Rojas. During the interview, Rojas described the

telephone call with Figueroa: Figueroa told Rojas, “‘We handled it,’” and Rojas

responded, “‘What are you guys talking about?’” Rojas told Haynes she “wanted them

‘to go heads up without the strap’”—a strap is a gun. During Diaz’s law enforcement

interview, he said he did not tell Rojas about his plan to kill the victim because he did

not trust her. Diaz said, “I wasn’t gonna tell [Rojas] ‘cuz I know, it would of, if it

would of break down like this, she would of, ya know, been, tell on me, ya know?”


                                             27
       The evidence supports the finding that Rojas wanted Figueroa and the victim to

fight. Rojas spent time with Figueroa and Diaz prior to the murder, and Rojas knew

Figueroa had a gun in his possession earlier in the day. The foregoing evidence does

not reflect Rojas was a participant in the murder, knew about the murder, encouraged

the murder, or encouraged a fight. The evidence reflects only what Rojas wanted and

knew—Rojas wanted a fight to happen and she knew Figueroa had a gun. The record

does not include evidence of Rojas actually encouraging the fight to take place. Rather,

when Figueroa said he wanted to fight the victim, Rojas instructed him “not to” and

they walked away. There is nothing after that reflecting Rojas told Figueroa and Diaz to

attack the victim, and Diaz said he did not tell Rojas about his plans to kill the victim.

Since the record is missing evidence of Rojas encouraging a fight to take place, and

nothing indicates Rojas actually participated in the shooting, we conclude the trial court

properly elected to not give the accomplice testimony instruction in relation to Rojas.

       Figueroa asserts the accomplice testimony instruction should have been given in

relation to Rojas because a juror could infer from the evidence that Rojas encouraged

the killing. In his argument, Figueroa relies on Haynes’s testimony about the law

enforcement interview with Rojas. During the interview, Rojas was accused of

participating in a conspiracy to murder the victim. While a law enforcement officer

accused Rojas of participating in plans to murder the victim, the trial record remains

devoid of any such evidence. Accordingly, we find Figueroa’s argument to be

unpersuasive.




                                             28
              3.     CUMULATIVE ERROR

       Figueroa contends that if the errors were nonprejudicial when considered

individually, the cumulative effect of the errors warrants reversal of the judgment. We

have found no errors. Accordingly, we are not persuaded by Figueroa’s cumulative

error argument. (See People v. Carter (2005) 36 Cal.4th 1215, 1281 [no cumulative

error where there is no individual error].)

              4.     GANG ENHANCEMENT SENTENCE

       Figueroa contends the trial court erred by imposing a 10-year sentence for the

gang enhancement because the court should have imposed a minimum parole eligibility

term. The People agree with Figueroa’s argument. The gang enhancement statute

typically requires a 10-year sentence for a violent felony. (§ 186.22, subd. (b)(1)(C).)

However, if the felony is punishable by life imprisonment, then the sentence should

reflect the defendant not be paroled for a minimum of 15 years. (§ 186.22, subd.

(b)(5).) For the murder conviction, the trial court imposed a 25-years-to-life prison

term. Since Figueroa received an indeterminate life term, the gang enhancement

sentencing term should have reflected a minimum 15-year parole eligibility provision.5

(People v. Arauz (2012) 210 Cal.App.4th 1394, 1404-1405.) We will strike the 10-year

gang enhancement sentence and impose a 15-year minimum parole eligibility provision

for the gang enhancement. (§ 186.22, subd. (b).)


       5 The 15-year minimum will be subsumed by the 25-year minimum for the
murder; however, the 10-year prison term cannot be imposed. (People v. Lopez (2005)
34 Cal.4th 1002, 1011.)


                                              29
              5.     CRUEL AND UNUSUAL PUNISHMENT

       Figueroa contends his mandatory 50-years-to-life sentence constitutes cruel and

unusual punishment because it is effectively a sentence of life without parole imposed

upon a person who was close to being a juvenile at the time the murder was committed.

       The United States Supreme Court has held a mandatory life without parole

sentence for a juvenile violates the Eighth Amendment—it must be a discretionary

sentence. (Miller v. Alabama (2012) ___ U.S. ___ [132 S.Ct. 2455, 2464, 2471].)

Figueroa was 20 years old on the day of the murder. Figueroa was not a juvenile.

(Welf. & Inst. Code, § 101, subd. (b) [a child is person under 18 years old].) Since

Figueroa was not a juvenile at the time of the murder, we conclude the mandatory 50-

years-to-life sentence does not constitute cruel and unusual punishment.

       Figueroa asserts he was similar to a juvenile because he was only 20 years old,

attended a continuation high school, took medication for attention deficit hyperactivity

disorder, and had been involuntarily hospitalized for being a danger to himself. This

court cannot conduct a competency hearing. We can only consider the fact that

Figueroa was 20 years old at the time of the murder, which means he was not a juvenile,

and therefore the laws pertaining to juveniles are not applicable to him.

              6.     SECTION 12022.53, SUBDIVISION (C)

       While reviewing the record in this case, this court noticed (1) the minute order

from the reading of the verdicts reflects the jury found true an allegation that Figueroa

personally and intentionally discharged a firearm during the murder (§ 12022.53, subd.

(c)); and (2) the trial court imposed and stayed a 20-year sentence for a section


                                            30
12022.53, subdivision (c) firearm enhancement for Figueroa. However, (1) Figueroa

was not charged with the section 12022.53, subdivision (c) enhancement; (2) there is

not a verdict form reflecting this finding; and (3) the supposed jury finding does not

appear in the reporter’s transcript.

       We asked the parties to submit supplemental briefing clarifying the record.

Specifically, we asked the parties if Figueroa’s jury made a true finding on a section

12022.53, subdivision (c) allegation. Figueroa asserts the jury did not make a true

finding concerning section 12022.53, subdivision (c), and the true finding reflected in

the minute order is a clerical error.

       The People agree (1) the true jury finding is not in the reporter’s transcript, and

(2) there is not a verdict form for the finding. However, the People contend since the

jury found true the allegation Figueroa vicariously discharged a firearm causing death

(§ 12022.53, subd. (d)), the jury necessarily found true the implicit lesser included

allegation that Figueroa vicariously discharged a firearm during the murder

(§ 12022.53, subd. (c)). Thus, the People assert the trial court properly sentenced

Figueroa for the section 12022.53, subdivision (c) enhancement, despite the lack of a

jury finding.

       The People’s argument appears to set forth the following proposition: The clerk

made a clerical error regarding the subdivision (c) true finding, but since subdivision

(c) is a lesser included enhancement of subdivision (d), it was proper for the trial court

to impose and stay the 20-year sentence. Rather than address the possible due process

implications of sentencing a person for an enhancement that was never mentioned prior


                                            31
to the judge imposing sentence, we will focus on the initial point—the clerk made a

clerical error.

       As set forth ante, (1) Figueroa was not charged with the section 12022.53,

subdivision (c) enhancement; (2) there is a not a verdict form reflecting a true finding

for the subdivision (c) enhancement; and (3) the finding does not appear in the

reporter’s transcript. Given the overall context in the record, we conclude the clerk’s

October 25, 2011, minute order contains an error regarding the true finding on the

section 12022.53, subdivision (c) enhancement as it relates to Figueroa. (See People v.

Anzalone (2013) 56 Cal.4th 545, 552, fn. 6.)

       Since (1) the true finding was not made, and (2) Figueroa was sentenced for the

“greater” enhancement (§ 12022.53, subd. (d)), we will strike the stayed 20-year

sentence, and direct the trial court (1) to amend its minute order to reflect there was not

a true finding concerning section 12022.53, subdivision (c) in Figueroa’s case, and

(2) to issue an amended abstract of judgment reflecting Figueroa does not have a 20-

year sentence for the section 12022.53, subdivision (c) enhancement. Since the 20-year

prison term was stayed, Figueroa’s overall sentence of 50 years to life should remain

unchanged.




                                            32
       B.     DIAZ

              1.     MOTION TO SUPPRESS

                     a)     Procedural History

                            i.     Interview

       Diaz was 15 years old at the time of the murder. On July 13 (the day after the

murder) at 10:15 p.m. San Bernardino County Sheriff’s Detectives Neal Rodriguez

(Rodriguez) and Ryan Ford (Ford) interviewed Diaz. At the beginning of the interview,

Rodriguez read Diaz his Miranda rights. Diaz agreed to talk with Rodriguez. Diaz said

he heard about the victim being killed. The following exchange took place:

       “Rodriguez: [O]ne thing I want [to] make sure you’re clear [about], you’re not

under arrest okay.

       “Diaz: Oh okay thanks.

       “Rodriguez: We’re not taking you to jail or nothing like that. Um[.]

       “Diaz: Can I ask you a quick question.

       “Rodriguez: Sure.

       “Diaz: Why me like[?]

       “Rodriguez: Well we’ll get to that in a minute. Okay like I said we’ve talked to

a lot of people.

       “Diaz: Okay.”

       Rodriguez told Diaz, “Somebody said you might know some information so

we’re here to talk to you.” Diaz said he spent the night of July 12 with a friend drinking

beer and smoking. Rodriguez asked why Rojas would have “throw[n] down [Diaz’s]


                                           33
name.” Diaz denied knowing Rojas. Diaz said it had been approximately one month

since he had seen Figueroa.

       Rodriguez said he knew Diaz was present during the shooting because

“everybody’s story is the same.” Diaz laughed and said, “[O]kay.” Diaz denied he was

present at the shooting. Diaz said he was not so “dumb” as to kill a person “around the

block from [his] house.” Rodriguez said there were “CSI people out there doing tracks

and doing all kinds of stuff,” so Diaz should not lie. Diaz said he was telling the truth

and he “wasn’t there.” Rodriguez said, “I’m not gonna arrest you, I’m telling you, I,

what did I tell you? [¶] . . . . [¶] I think that you were just there. [¶] . . . [¶] [T]hat

doesn’t get you arrested for just being there.”

       Diaz refused to take a polygraph test. Rodriguez implored Diaz to “stop lying”

about not being present at the shooting. Rodriguez then said, “You were a witness, you

saw what happened that’s why we need to talk to you. You’re not, you’re not under

arrest.” Diaz responded, “I know.” Rodriguez asked, “So you’re willing to go down for

some other dude. That’s what is gonna happen you’re gonna be an accessory.”

Rodriguez explained Diaz would be an accessory because he was “there and [he was]

not telling [the detectives] what happened.”

       Rodriguez gave Diaz chips to eat and then took a 10-minute break. After the

break, Rodriguez moved the interview to an outdoor courtyard. Rodriguez said,

“[M]aybe I got the facts wrong, maybe you are not [talking] to me because, maybe you

were the shooter. Is that right, is that why you’re hesitant to tell me what’s going on[?]

Rodriguez continued, “[T]his is not gonna go away okay. Um this, this incident that


                                             34
happened, this murder that occurred will never go away okay.” Diaz said he was telling

the truth. Diaz asked if his mother knew he was at the sheriff’s station. Rodriguez said

he did not know, but he would call her when the interview ended. Diaz responded,

“Can you do me that favor[?] [¶] . . . [¶] ‘Cause I don’t want her [to] be worried.”

After Diaz continued saying he was not present during the shooting, Rodriguez ended

the interview, and they went back inside.

        After Diaz sat in the holding area for awhile, Ford asked Diaz if he wanted to go

outside to the courtyard area again. Diaz agreed. Ford asked Diaz if he intended “for

what happened to happen.” Diaz said, “‘Yeah,’” and nodded his head yes. Eventually,

Diaz invoked his right to remain silent. Ford said, “‘Okay,’” and returned Diaz to the

holding area. Diaz was being detained, but he had not been arrested. Rodriguez went

home.

        At some point after Diaz was returned to the holding area, Cannon arrested and

booked Diaz. Cannon told Diaz he was being arrested for murder. Diaz appeared

“shocked by it” and asked “why?” Cannon explained the detectives believed Diaz was

responsible for the victim’s death. Cannon did not discuss the facts of the case with

Diaz because Cannon had been told Diaz invoked his right to remain silent. Diaz asked

to speak to Rodriguez. A sergeant contacted Rodriguez at home.

        At approximately 4:00 a.m., Rodriguez returned to the sheriff’s station.

Rodriguez read Diaz his Miranda rights again. Diaz said Figueroa shot the victim.

Diaz thought Figueroa was robbing the victim, but then he killed the victim. Diaz said

he decided to talk to Rodriguez because he did not want to “go down for something [he]


                                            35
didn’t do.” Diaz volunteered to take a polygraph test. Rodriguez accused Diaz of lying

about shooting. Diaz said he was telling the truth.

       Diaz asked, “Well, right now, you say they, the other thing is that I’m lookin’ at

murder and that’s what twenty-five to life?” Rodriguez said the prosecutor determined

the charges, not the sheriff. Diaz again said Figueroa was the shooter. Rodriguez

accused Diaz of lying. Diaz said, “I wanna make a deal with you, but I want you to

make the deal with me, too.” Diaz asked that he not be sentenced to life. Diaz said,

“I’ll do twenty five, but just not the L.” Rodriguez said he could not make sentencing

promises, but he would talk to the prosecutor.

       Diaz responded, “Know what, man? Fuck it. I’ll get locked down, kill myself in

there, right, but check this out, this is what happened.” Diaz again accused Figueroa of

being the shooter. Diaz said he would show Rodriguez the house where they retrieved

the gun if Rodriguez would take Diaz to his mother’s house so he could give his mother

a kiss. Diaz continued to accuse Figueroa of shooting the victim.

       Rodriguez told Diaz he would perform a gunshot residue test on Diaz’s hands

because Rodriguez was “a hundred percent positive that [Diaz] shot this guy.” Diaz

asked to go outside. When they arrived outside, Diaz said, “I shot him.” Diaz

proceeded to tell Rodriguez how the shooting occurred. Rodriguez then went through

the story again, confirming his understanding of the events and details surrounding the

murder. Rodriguez asked Diaz if he felt sorry. Diaz asked, “What for?” Diaz asked,

“You think I can use the phone right now? To call my mom? Maybe when we’re

done?” Rodriguez responded, “Yeah, when we’re all done you can do that.”


                                            36
       Rodriguez and Diaz took a break from 5:29 a.m. to 5:37 a.m. When the

interview resumed, Rodriguez questioned Diaz about his tattoos and shotgun shells that

were found in Diaz’s house during a search. Diaz asked if Rodriguez would be taking

him to jail. Rodriguez said he would. Diaz asked, “So, um, can my mom come and see

me?” Rodriguez said she could likely visit him at juvenile hall. Rodriguez asked Diaz

to take him to the house where the shotgun may have been hidden. Diaz asked if he

could see his Mother during the trip. Diaz said, “Can’t believe I did this all for a girl I

don’t even know like [sic], I don’t even know like that, man.”

                               ii.   Motion

       Prior to trial, Diaz’s trial attorney sought to suppress Diaz’s statements to law

enforcement officers, due to Miranda violations. Diaz’s trial attorney argued, “You

also notice, of course, as they always do, they make a big deal about how the guy is not

in custody; he can leave whenever he wants; and then as soon as the interview is over

and they don’t get what they want in the interview, they place him under arrest for

murder. [¶] I think it’s clear that he was placed under arrest and told he was being

arrested for murder is one more jolt to try to get him talking. It worked. It was after he

invoked. So it doesn’t matter what he said to Officer Rodriguez later that he sounded

very cooperative. Once he invokes, he shouldn’t have been pressured to retract that,

um, assertion of his right.”

       The trial court found Diaz’s statements were admissible and there was not a

Miranda violation. The trial court explained, “[Diaz] requested the presence of Mr.




                                              37
Rodriguez, that no pressure was applied. Detective Rodriguez responded. Mr. Diaz

was advised of his Miranda rights, and the interview continued.”

                     b)      Analysis

       Diaz contends the trial court erred by denying his suppression motion because his

Miranda waiver during the second interview was involuntary. We disagree.

       “‘“[I]f the accused indicates in any manner that he wishes to remain silent or to

consult an attorney, interrogation must cease, and any statement obtained from him

during interrogation thereafter may not be admitted against him at his trial” [citation], at

least during the prosecution’s case-in-chief [citations].’ [Citation.] ‘Critically,

however, a suspect can waive these rights.’ [Citation.] To establish a valid waiver of

Miranda rights, the prosecution must show by a preponderance of the evidence that the

waiver was knowing, intelligent, and voluntary. [Citations.]

       “Determining the validity of a Miranda rights waiver requires ‘an evaluation of

the defendant’s state of mind’ [citation] and ‘inquiry into all the circumstances

surrounding the interrogation’ [citation]. When a juvenile’s waiver is at issue,

consideration must be given to factors such as ‘the juvenile’s age, experience,

education, background, and intelligence, and . . . 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.’ [Citations.]” (People v. Nelson, supra, 53

Cal.4th at pp. 374-375.)

       “Thus, for purposes of waiver determinations, courts must consider a juvenile’s

state of mind, as well as all other circumstances, including a request for a parent, in


                                             38
order to ascertain whether the juvenile ‘in fact knowingly and voluntarily decided to

forgo’ his or her Miranda rights. [Citation.] This approach allows the necessary

flexibility for courts ‘to take into account those special concerns that are present when

young persons, often with limited experience and education and with immature

judgment, are involved.’ [Citation.]

       “Finally, courts must use ‘“special care in scrutinizing the record”’ to evaluate a

claim that a juvenile’s custodial confession was not voluntarily given. [Citation.] ‘If

counsel was not present for some permissible reason when [a juvenile’s] admission was

obtained, the greatest care must be taken to assure that the admission was voluntary, in

the sense not only that it was not coerced or suggested, but also that it was not the

product of ignorance of rights or of adolescent fantasy, fright or despair.’ [Citation.]

Consequently, even when a juvenile has made a valid waiver of the Miranda rights, a

court may consider whether the juvenile gave a confession after being ‘“exposed to any

form of coercion, threats, or promises of any kind, [or] trickery or intimidation . . . .”’

[Citation.] The constitutional safeguard of voluntariness ensures that any custodial

admission flows from the volition of the juvenile, and not the will of the interrogating

officers.” (People v. Nelson, supra, 53 Cal.4th at pp. 379-380, fns. omitted.) “On

appeal, we conduct an independent review of the trial court’s legal determination and

rely upon the trial court’s findings on disputed facts if supported by substantial

evidence. [Citation.].” (People v. Williams, supra, 49 Cal.4th at p. 425.)

       Diaz was 15 years old at the time of the murder, and he had stopped attending

high school. Diaz had never been arrested prior to this case. One of Diaz’s older


                                             39
brothers was incarcerated for shooting at gang members. Diaz’s other older brother was

murdered in Los Angeles. Rodriguez asked Diaz if he committed any crimes in Los

Angeles. Diaz responded, “A lot. They killed my brother, what [do] you think?” Diaz

said, “So, you know, like how they say you got to earn your tattoos.” Diaz had multiple

tattoos. It can be inferred Diaz has some knowledge of the criminal justice due to

(1) his brother’s case, and (2) his ability to avoid arrest despite having committed “a lot”

of prior crimes.

       Further, it appears Diaz understood the Miranda warnings given to him, since he

invoked his right to remain silent and refused the polygraph test. When invoking his

rights, Diaz told Ford, “‘I’m just—remain silent.’” Ford said, “‘Okay,’” and returned

Diaz to the holding area. Additionally, it can be inferred that Diaz understood the

consequences of waiving his rights, since he asked about the potential length of his

prison term. Diaz asked, “Well, right now, you say they, the other thing is that I’m

lookin’ at murder and that’s what twenty-five to life?”

       In regard to requesting a parent, Diaz’s requests for his mother were to (1) let her

know his whereabouts so she did not worry, and (2) give her kiss. It does not appear

Diaz requested his mother for the sake of protection or guidance. Additionally, Diaz

said during the interview that if his mother were present, she would want him to tell

Rodriguez the truth about what happened, so it appears Diaz’s Mother would have

encouraged him to waive his rights. Thus, Diaz’s requests for his Mother do not reflect

an unknowing juvenile requesting a parent’s advice or protection.




                                            40
       As to Diaz’s state of mind, Diaz was upset by the idea of potentially serving a

life sentence, but felt no remorse for taking the victim’s life. Diaz said he felt the victim

“deserved it.” Diaz’s statements reflect self-concern and a desire for self-preservation.

He did not appear distraught, depressed, or overly emotional. In sum, upon

consideration of Diaz’s age, experience, education, background, intelligence,

knowledge of his rights, knowledge of the consequences of waiving his rights, his

requests for parental contact, and his state of mind, it appears Diaz knowingly and

voluntarily waived his rights.

       Diaz contends the trial court erred by denying his suppression motion because his

Miranda waiver during the second interview was involuntary due to detectives coercing

Diaz into “choos[ing] between making a statement or being arrested.” At the time Diaz

was arrested he had already told Ford that he intended “what happened to happen.”

Thus, Diaz had already admitted a level of culpability. Diaz’s admission could

reasonably constitute probable cause for arrest. Thus, it does not appear the detectives

concocted a ruse merely to coerce a confession from Diaz. Rather, the arrest was the

logical result of Diaz’s pre-arrest admission.

       Moreover, after Diaz was arrested, he asked to speak with Rodriguez. Diaz had

time to think about that decision while waiting for Rodriguez to leave his house and

return to the sheriff’s station. In other words, between deciding to waive his rights and

actually talking to Rodriguez, Diaz had time to reconsider his waiver. Based upon this

record, the detectives did not impose their wills onto Diaz. Diaz’s admission flowed

from his volition.


                                             41
              2.     CRUEL AND UNUSUAL PUNISHMENT

                     a)      Procedural History

       The trial court sentenced Diaz to a total prison term of 50 years to life. The court

imposed 25 years to life for the first degree murder conviction (§ 187, subd. (a)) and a

consecutive term of 25 years to life for discharging a firearm causing death (§ 12022.53,

subd. (d)). The court imposed a concurrent 10-year prison term for the gang allegation

(§ 186.22, subd. (b)). The court imposed and stayed (1) a 20-year prison term for

discharging a firearm during the murder (§ 12022.53, subd. (c)), and (2) a 10-year

prison term for using a firearm during the murder (§ 12022.53, subd. (b)). As set forth

ante, Diaz was 15 years old at the time of the murder. Diaz was 17 years old at the time

of the sentencing hearing.

                     b)      Analysis

                             i.     Contention

       Diaz contends the sentence of 50 years to life constitutes cruel and unusual

punishment for three different reasons, which we will address in turn.

                             ii.    Forfeiture

       The People assert Diaz forfeited the cruel and unusual punishment issue for

appellate review because he did not object at the trial court. Diaz contends the issue

was not forfeited for failing to object because an objection would have been futile, in

that a 50-years-to-life sentence was mandatory, i.e., the trial court had no other option.

We agree with Diaz, an objection would have been futile in light of the mandatory

sentencing requirements. Thus, we conclude the issue has not been forfeited. (See


                                            42
People v. Thompson (2010) 49 Cal.4th 79, 130 [“a party may raise a claim on appeal

despite the lack of an objection at trial where the circumstances show an objection

would have been futile”].)

                             iii.   Background Law

       “Every person guilty of murder in the first degree shall be punished by death,

imprisonment in the state prison for life without the possibility of parole, or

imprisonment in the state prison for a term of 25 years to life.” (§ 190, subd. (a).) The

death penalty cannot be imposed on a juvenile offender. (§ 190.5, subd. (a).) An

offender must be at least 16 years old to be eligible for life without parole. (§ 190.5,

subd. (b).)

       The firearm statute provides, “[A]ny person who, in the commission of a felony

. . . personally and intentionally discharges a firearm and proximately causes . . . death,

to any person other than an accomplice, shall be punished by an additional and

consecutive term of imprisonment in the state prison for 25 years to life.” (§ 12022.53,

subd. (d).) The issues presented are purely legal, so we apply the de novo standard of

review. (In re Zepeda (2006) 141 Cal.App.4th 1493, 1497.) The sentencing statutes in

California require a 50-years-to-life sentence for a first degree murder wherein the

defendant kills the victim with a firearm. (§§ 190, subd. (a), 12022.53, subd. (d).)

                             iv.    Retirement Age

       First, Diaz asserts his sentence is cruel and unusual punishment because it does

not give him a realistic chance to reenter society. Diaz asserts that if he is granted

parole at his first hearing, then he will be 65 years old, which is “approximately the


                                             43
national retirement age,” therefore making it unlikely Diaz could successfully begin

building a life upon release.

       “[S]entencing a juvenile offender for a nonhomicide offense to a term of years

with a parole eligibility date that falls outside the juvenile offender’s natural life

expectancy constitutes cruel and unusual punishment in violation of the Eighth

Amendment. Although [parole] authorities may later determine that [the offenders]

should remain incarcerated for their natural lives, the state may not deprive them at

sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to

reenter society in the future.” (People v. Caballero (2012) 55 Cal.4th 262, 268; see also

Graham v. Florida (2010) 560 U.S. 48, 75.)

       The Caballero opinion applies to non-homicide cases. The high court noted

there is a difference between non-homicide crimes and homicide. The high court, citing

the United States Supreme Court, wrote, “[N]onhomicide crimes differ from homicide

crimes in a ‘moral sense.’” (People v. Caballero, supra, 55 Cal.4th at p. 266.) Since

the instant case concerns a homicide we are not persuaded that the Caballero parole

eligibility requirements apply, since Caballero explicitly applies only to nonhomicide

offenders.

       Moreover, if Caballero did apply, Diaz’s parole eligibility date does not exceed

his life expectancy. Assuming Diaz must serve all 50 years before a parole hearing,

then he would be 65 years old at the time of the hearing. The average life expectancy of

an American male is approximately 77 years old. (People v. Romero (2002) 99

Cal.App.4th 1418, 1427-1428.) Thus, Diaz’s parole eligibility date does not exceed his


                                              44
natural life expectancy. As a result, we conclude the trial court did not err because there

was no basis to ignore the statutory sentencing requirements since (1) Diaz was

convicted of homicide, and (2) his parole eligibility date does not exceed his natural life

expectancy.

                             v.     Culpability

       Second, Diaz contends the sentence is disproportionate to his culpability given

his background and crime. Diaz asserts his 50-years-to-life sentence is essentially a

sentence of life without parole, since he will be 65 years at the time of his first parole

hearing. Diaz contends this sentence does not comport with his culpability since “his

father drank himself to death when Diaz was 11 [years old], Diaz’s older brother was a

gang member who was murdered[,] Diaz was recruited into a gang at approximately age

13[, and] Diaz was drunk at the time of the offense.”

       “The concept of proportionality is central to the Eighth Amendment. Embodied

in the Constitution’s ban on cruel and unusual punishments is the ‘precept of justice that

punishment for [a] crime should be graduated and proportioned to [the] offense.’

[Citation.]” (Graham v. Florida, supra, 560 U.S. at p. 59.) To determine if a sentence

is unconstitutionally excessive the court must consider all the circumstances of the case.

(Ibid.) A court begins the analysis by “comparing the gravity of the offense and the

severity of the sentence.” (Id. at p. 60.) In death penalty cases, a court considers (1) the

nature of the offense, and (2) the characteristics of the offender. (Id. at pp. 60-61.) The

characteristics of the offender are also relevant when imposing a sentence of life




                                             45
without parole (LWOP) upon a juvenile offender. (Miller v. Alabama, supra, ___ U.S.

___ [132 S.Ct. at p. 2475].)

       It does not appear that the offender’s characteristics and background are relevant

when a term of years sentence has been opposed; they are only relevant in death penalty

cases and juvenile LWOP cases. In a term of years case, the relevant consideration for

an allegation of cruel and unusual punishment is the nature of the crime compared to the

sentence. Since Diaz was sentenced to a term of years, his personal characteristics are

not relevant to determining if his sentence is cruel and unusual.

       An additional problem with Diaz’s argument is that the statutory sentencing

requirements do not provide authority for the trial court to consider Diaz’s

characteristics in sentencing. The law requires a minimum 50-years-to-life term for the

crimes Diaz committed. (§§ 190, subd. (a), 12022.53, subd. (d).) Therefore, any

discussion about Diaz’s characteristics would have been superfluous, since a lesser

sentence could not be imposed.

       In sum, under the current law, there is no relevance to discussing Diaz’s personal

characteristics, because (1) a discussion about cruel and unusual punishment does not

take personal characteristics into account unless the sentence concerns (a) the death

penalty, or (b) a juvenile sentenced to life without parole; and (2) there was a mandatory

minimum sentence of 50 years to life so a mitigating factors analysis was moot.

       Nevertheless, Diaz asserts his sentence is essentially an LWOP sentence

disguised as a term of years, so we will continue. Before imposing an LWOP sentence

upon a juvenile, a trial court must consider mitigating circumstances, the offender’s


                                            46
“age and age-related characteristics and the nature of their crimes.” (Miller v. Alabama,

supra, ___ U.S. ___ [132 S.Ct. at p. 2475].)

       Diaz’s father died when he was 11. Diaz’s older brother was incarcerated for

shooting gang members and his other older brother was killed, possibly by gang

members. Diaz’s mother moved the family from Los Angeles to Highland to stop

Diaz’s gang activity. However, Diaz continued his gang involvement by associating

with members of Westside Verdugo. Diaz did not know the name of his victim and said

he felt the victim “deserved” to die. Diaz waited until time had passed, when the victim

was relaxed at his parents’ house, to strike. The heat of the moment related to Rojas

being pushed or punched had passed. Thus, Diaz, who had an opportunity to start over

in a new location, became involved in gangs, and killed the victim, whom he did not

know, in cold-blood.

       Accordingly, while Diaz had some disadvantages in life, he also had advantages,

such as an opportunity to start over and mother who tried to protect him from gang life.

Thus, the mitigating factors are balanced by the advantages Diaz had. The murder Diaz

committed was callous and ruthless. Given the balance of mitigating circumstances,

Diaz’s age, age-related characteristics, and the nature of his crimes, the sentence does

not appear to be disproportionate to his culpability. As a result, the sentence does not

constitute cruel and unusual punishment.

                            vi.    Discretion

       Third, Diaz asserts the sentence is problematic because the trial court had no

discretion to impose a lesser sentence. In particular, Diaz asserts the mandatory


                                            47
consecutive 25-years-to-life sentence for the firearm enhancement (§ 12022.53, subd.

(d)) is unconstitutional when applied to juvenile offenders because it effectively creates

a mandatory LWOP sentence. Diaz asserts the trial court must have discretion

regarding whether to impose the enhancement sentence upon a juvenile offender since

the sentence is the functional equivalent of imposing an LWOP sentence.

       The United States Supreme Court has held that a mandatory LWOP sentence for

a juvenile violates the Eighth Amendment—it must be a discretionary sentence. (Miller

v. Alabama, supra, ___ U.S. ___ [132 S.Ct. at pp. 2464, 2471].)

       Diaz’s sentence is not an LWOP sentence. If Diaz has to serve all 50 years of his

term before his first parole hearing, then he will be 65 years old at the time of his first

hearing. As set forth ante, the average life expectancy for an American male is

approximately 77 years. Thus, Diaz should receive a parole hearing during his lifetime.

As a result, Diaz was not given an LWOP sentence. We are not persuaded that the

firearm enhancement sentence must be discretionary, since it does not result in an

LWOP sentence.

              3.      GANG ENHANCEMENT SENTENCE

       Similar to Figueroa, Diaz contends the trial court erred by imposing and staying a

10-year sentence for the gang enhancement. (§ 186.22, subd. (b).) Diaz asserts he

should have been given a minimum parole date of 15 years. The People agree with

Diaz’s argument. The gang enhancement statute typically requires a 10-year sentence

for a violent felony. (§ 186.22, subd. (b)(1)(C).) However, if the felony is punishable

by life imprisonment, then the sentence should reflect the defendant not be paroled for a


                                             48
minimum of 15 years. (§ 186.22, subd. (b)(5).) For the murder conviction, the trial

court imposed a 25-years-to-life prison term. Since Diaz received an indeterminate life

term, the gang enhancement sentencing term should have reflected a minimum 15-year

parole eligibility provision.6 (People v. Arauz, supra, 210 Cal.App.4th at pp. 1404-

1405.) We will strike the 10-year gang enhancement sentence and impose a 15-year

minimum parole eligibility provision for the gang enhancement (§ 186.22, subd. (b)(5)).

                                    DISPOSITION

       Figueroa’s 10-year prison sentence for the gang enhancement (§ 186.22, subd.

(b)) is stricken. A 15-year minimum parole eligibility date is imposed for the gang

enhancement (§ 186.22, subd. (b)(5)).7 The trial court is directed to amend its October

25, 2011, minute order to reflect there was not a true finding concerning section

12022.53, subdivision (c) in Figueroa’s case. The 20-year stayed sentence for the

section 12022.53, subdivision (c) enhancement is stricken. The trial court is directed to

issue an amended abstract of judgment reflecting the sentencing changes. The trial

court is directed to forward the amended abstract of judgment to the Department of

Corrections and Rehabilitation and any other appropriate agencies. In all other respects,

the judgment is affirmed.


       6 The 15-year minimum will be subsumed by the 25-year minimum for the
murder; however, the 10-year prison term cannot be imposed. (People v. Lopez, supra,
34 Cal.4th at p. 1011.)

       7The minimum parole eligibility date currently in effect for Figueroa should
remain unchanged as the 15-year date will be subsumed by the 25-year minimum for the
murder.


                                           49
       Diaz’s 10-year prison sentence for the gang enhancement (§ 186.22, subd.(b)) is

stricken. A 15-year minimum parole eligibility date is imposed for the gang

enhancement (§ 186.22, subd. (b)(5)).8 The trial court is directed to issue an amended

abstract of judgment reflecting the sentencing changes and to forward the amended

abstract of judgment to the Department of Corrections and Rehabilitation and any other

appropriate agencies. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                       MILLER
                                                                                         J.


We concur:


RAMIREZ
                              P. J.


CODRINGTON
                                 J.




       8The minimum parole eligibility date currently in effect for Diaz should remain
unchanged as the 15-year date will be subsumed by the 25-year minimum for the
murder.


                                           50
