Filed 5/23/13 P. v. Calderon CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063435
         Plaintiff and Respondent,
                                                                            (Super. Ct. No. VCF239260A)
                   v.

MIGUEL CALDERON,                                                                         OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. James W.
Hollman, Judge.
         David Y. Stanley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd
Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Seventeen-year-old Miguel Calderon retaliated against rival gang members by
shooting numerous shots at the house where a confrontation had occurred between the
rival gang members and him. One of the bullets struck a small child causing serious, but
not fatal, injuries. A jury convicted Calderon of six counts of attempted murder (Pen.
Code, §§ 664, 187, subd. (a))1 and one count of shooting at an inhabited dwelling
(§ 246). In addition, the jury found true numerous enhancements, including personal use
of a firearm resulting in great bodily injury within the meaning of section 12022.53,
subdivisions (b) through (d). Calderon was sentenced to 120 years to life in prison.
       Calderon contends his conviction must be reversed because the trial court
erroneously instructed the jury and the prosecutor committed misconduct. We reject
these arguments.
       In addition, Calderon asserts his sentence constitutes cruel and unusual
punishment, in violation of the Eighth Amendment to the United States Constitution.
Recent opinions by the United States Supreme Court (Graham v. Florida (2010) 560 U.S.
48 (Graham)) and the California Supreme Court (People v. Caballero (2012) 55 Cal.4th
262 (Caballero)) confirm that the sentence imposed violates the Eighth Amendment.
Accordingly, we will reverse the judgment and remand the matter to the trial court for
resentencing. At that time the trial court can correct an error in the custody credits to
which Calderon is entitled.
                      FACTUAL AND PROCEDURAL SUMMARY
       The Evidence
       Miguel Claves was watching television with his two-year-old son sitting on his lap
when he heard gunshots outside. One of the bullets entered through the window and
Claves felt pain in his leg. When Claves stood up, he discovered the bullet had struck his
son in the stomach area and had exited out his back. His son was in the hospital for
       1All   further statutory references are to the Penal Code unless otherwise stated.



                                               2.
several days, but survived. Claves’s stepson, Oscar, and two of his friends, Ramon and
Alejandro, were at the house during portions of that night and at the time of the shooting.
       Ramon explained that earlier in the evening he had been in the front yard of the
house with Oscar, Luis, and Alejandro. Calderon and Christian Garcia walked by and
made a gang-related comment, to which Ramon responded. Oscar then lit some
fireworks, apparently causing Calderon and Garcia to believe a gun had been fired and
resulting in their running away. A short while later Ramon went into the backyard of the
house while Oscar and Alejandro went inside the house. Luis then left.
       While Ramon was in the backyard, he saw Calderon and Garcia approach and stop
a short distance away from the house. Calderon then began shooting at the house with a
rifle. Calderon fired a lot of shots.
       Oscar’s and Ramon’s testimony essentially were consistent. Oscar explained that
he and Alejandro had gone inside the house just prior to the shootings to use the
restroom. He also admitted he discharged the fireworks when Calderon and Garcia
walked by the house.
        Evidence technicians recovered fourteen .22-caliber bullet casings from the street
approximately 111 feet from the Claves house.
       While Calderon was in juvenile detention, an officer overheard Calderon say he
had shot a “scrap’s brother.” Calderon also said he hoped the child would survive.
       Calderon gave a statement to the police that was recorded and played for the jury.
He admitted that he shot at the Claves house, but claimed the shooting was in retaliation
for an incident that had occurred earlier that evening. In the first incident Calderon and
Garcia were walking by the Claves house when Garcia made a comment to the group that
was in front of the house. Luis responded by saying, “Shoot that fool.” Calderon heard
the sound of a gun being cocked and then heard a gunshot. Calderon took off running.
       Calderon and Garcia obtained a rifle, returned to the house, and Calderon fired
numerous shots at the house. Calderon did not know there were small children in the

                                             3.
house and did not know he had shot one of the children. He was not aiming at anybody,
just the house.
          The prosecution’s gang expert identified both Calderon and Garcia as being active
members of the Norteno criminal street gang. The expert also testified that Alejandro
and Oscar were active members of the Sureno criminal street gang, and that Ramon was
an associate of the Sureno criminal street gang. Finally, the expert testified that Calderon
and Garcia committed the crime for the benefit of the Norteno criminal street gang.
          The Information, Verdict, and Sentencing
          The information charged Calderon with a separate count of attempted murder for
each of the six occupants in the house at the time of the shooting, in violation of sections
664 and 187, subdivision (a). The seventh count charged Calderon with shooting at an
inhabited dwelling, in violation of section 246.
          In addition, each count included the following allegations: (1) the crime was
committed for the benefit of a criminal street gang within the meaning of section 186.22,
subdivision (b)(1)(C); (2) Calderon personally and intentionally discharged a firearm,
causing great bodily injury within the meaning of section 12022.53, subdivisions (b)
through (d); and (3) Calderon was at least 16 years old at the time the crime was
committed within the meaning of Welfare and Institutions Code section 707, subdivision
(d)(1).
          The jury found Calderon guilty as charged and found all special allegations to be
true.
          The trial court sentenced Calderon to a term of 15 years to life for each attempted
murder conviction, plus an additional term of 25 years to life on each count for the
section 12022.53, subdivision (d) firearm enhancement. The sentences on counts 1, 2,
and 3 were ordered to run consecutively, and the remaining counts were ordered to run
concurrently. The sentence on the shooting at an inhabited dwelling count was stayed



                                               4.
pursuant to section 654. Calderon was sentenced to a total indeterminate term of 120
years to life.
                                      DISCUSSION
I.     Jury instructions
       The prosecution’s theory to support the attempted murder charges was that
Calderon returned to the Claves home with the rifle to kill Ramon, Alejandro, and Oscar.
The prosecutor argued Calderon had the intent to kill these individuals when he shot at
the house. In addition, the prosecutor argued that Calderon had the intent to kill Claves,
his wife, and his son because they were within the “kill zone,” and Calderon intended to
kill everyone within that zone.
       The trial court instructed the jury on this theory with CALCRIM No. 600, without
objection, as follows:

               “To prove that the defendant is guilty of attempted murder, the
       People must prove that: [¶] One, the defendant took a direct but ineffective
       step -- the defendant took direct but ineffective steps toward killing another
       person; and [¶] Two, The defendant intended to kill that person.

               “A direct step requires more than merely planning or preparing to
       commit murder or obtaining or arranging for something needed to commit
       murder. A direct step is one that goes beyond planning or preparation and
       shows that a person is putting his or her plan into action. A direct step
       indicates a definite and unambiguous intent to kill. It is a direct movement
       toward the commission of the crime after preparations are made. It is an
       immediate step that puts the plan in motion so that the plan would have
       been completed if some circumstance outside the plan had not interrupted
       the attempt.

              “A person may intend to kill a specific victim or victims and at the
       same time intend to kill everyone in a particular zone of harm or kill zone.
       In order to convict the defendant of attempted murder of victim A.H.,
       Miguel Claves, Edelmira Hernandez, the People must prove that the
       defendant not only intended to kill Oscar …, Ramon …, and [Alejandro] …
       but also either intended to kill victim A.H., Miguel Claves, Edelmira
       Hernandez, or intended to kill everyone within the kill zone. If you have a
       reasonable doubt whether the defendant intended to kill victim A.H.,


                                             5.
          Miguel Claves, Edelmira Hernandez or intended to kill Oscar …, Ramon
          …, [Alejandro] … by killing everyone in the kill zone, then you must find
          the defendant not guilty of the attempted murder of victim A.H., Miguel
          Claves, Edelmira Hernandez.”
          During deliberations the jury sent the following question: “What is the definition
of kill zone and how do you define its boundaries.” After conferring with the attorneys,
and receiving no objection, the trial court responded to the jury’s question as follows:
“Please refer to the last paragraph in Jury Instruction #600. A ‘kill zone’ theory is not a
legal doctrine requiring a special jury instruction. Rather, it is simply a reasonable
inference that you, the jury, may draw depending upon what you determine to be the
facts.”
          Relying on the trial court’s general obligation to instruct the jury correctly,
Calderon argues the trial court erred by failing to reply adequately to the jury’s question.
According to Calderon, the jury “obviously did not feel they adequately understood” the
kill zone theory, so the trial court was obligated to provide additional guidance. Calderon
asserts the kill zone theory applies in at least two distinct situations: (1) where shots are
fired at a primary target that is located near a group of people, and (2) where shots are
fired at a group of people where there is no primary target. The trial court could have,
according to Calderon, explained this distinction to the jury, thus providing guidance in
addition to the instruction already given. Thus, the trial court “erred in failing to provide
to the jury a clarifying definition of ‘kill zone’ as requested by the jury.”
          We reject Calderon’s argument for a variety of reasons. First, he misunderstands
the two cases on which he relies. To support his theory that there are two distinct
situations in which the kill zone theory applies, Calderon cites People v. Bland (2002) 28
Cal.4th 313 (Bland) and People v. Stone (2009) 46 Cal.4th 131 (Stone). We begin with
Bland, a case that addresses the kill zone theory.
          Bland and another man shot and killed Kenneth Wilson, a member of a rival gang.
Wilson was driving a car at the time of the shooting. Two of his friends who were not


                                                 6.
gang members also were in the car at the time. When the shooting started, Wilson was
able to drive a short distance before the car crashed. Bland and his accomplice continued
shooting at the car, injuring the two passengers.
       Bland was convicted of the murder of Wilson and the attempted murder of the two
passengers. The evidence suggested that Bland intended to kill Wilson, but did not
specifically target the passengers. The prosecution argued the intent to kill Wilson was
transferred to the two passengers, thus providing the requisite intent for the attempted
murder convictions. The trial court instructed the jury on the transferred intent doctrine.
       The Supreme Court explained that transferred intent, which has been a part of
California law since the murder statute was passed in 1872, applies when a defendant
“‘who shoots with the intent to kill a certain person and hits a bystander instead is subject
to the same criminal liability that would have been imposed had “‘the fatal blow reached
the person for whom intended.’” [Citation.] In such a factual setting, the defendant is
deemed as culpable as if he had accomplished what he set out to do.’ [Citation.]”
(Bland, supra, 28 Cal.4th at p. 321.)
       The Supreme Court explained how the transferred intent doctrine applies in
different factual contexts and concluded, “Whether one conceptualizes the matter by
saying that the intent to kill the intended target transfers to others also killed, or by saying
that intent to kill need not be directed at a specific person, the result is the same:
assuming legal causation, a person maliciously intending to kill is guilty of the murder of
all persons actually killed. If the intent is premeditated, the murder or murders are first
degree.” (Bland, supra, 28 Cal.4th at pp. 323-324.)
       The Supreme Court next addressed the question of whether transferred intent can
apply to the crime of attempted murder. After addressing several appellate court cases,
the Supreme Court concluded that transferred intent does not apply to the crime of
attempted murder:



                                               7.
               “We explained above that intent to kill is not ‘used up’ with the
       killing of the intended target but extends to every person actually killed.
       But this rationale does not apply to persons not killed. We see no
       suggestion the Legislature intended to extend liability for unintended
       victims to an inchoate crime like attempted murder. The crime of attempt
       sanctions what the person intended to do but did not accomplish, not
       unintended and unaccomplished potential consequences.

              “The mental state required for attempted murder has long differed
       from that required for murder itself. Murder does not require the intent to
       kill. Implied malice—a conscious disregard for life—suffices. [Citation.]
       But over a century ago, we made clear that implied malice cannot support a
       conviction of an attempt to commit murder. ‘“To constitute murder, the
       guilty person need not intend to take life; but to constitute an attempt to
       murder, he must so intend.” [Citation.] “The wrong-doer must specifically
       contemplate taking life; and though his act is such as, were it successful,
       would be murder, if in truth he does not mean to kill, he does not become
       guilty of an attempt to commit murder.” [Citation.]’ [Citations.]

              “We should also distinguish between a completed murder and
       attempted murder regarding transferred intent. Someone who in truth does
       not intend to kill a person is not guilty of that person’s attempted murder
       even if the crime would have been murder—due to transferred intent—if
       the person were killed. To be guilty of attempted murder, the defendant
       must intend to kill the alleged victim, not someone else. The defendant’s
       mental state must be examined as to each alleged attempted murder victim.
       Someone who intends to kill only one person and attempts unsuccessfully
       to do so, is guilty of the attempted murder of the intended victim, but not of
       others.” (Bland, supra, 28 Cal.4th at pp. 327-328.)
       However, the Supreme Court also explained that even though transferred intent
could not support an attempted murder conviction, a person who shoots at a group of
people can still be punished for the attempted murder of everyone in the group under the
kill zone theory.

              “As to the nontargeted members of the group, the defendant might
       be guilty of crimes such as assault with a deadly weapon or firing at an
       occupied vehicle. [Citation.] More importantly, the person might still be
       guilty of attempted murder of everyone in the group, although not on a
       transferred intent theory. The Ford [v. State (1993) 330 Md. 682 [625 A.2d
       984]] court discussed this last point in explaining why one of its earlier
       cases (State v. Wilson (1988) 313 Md. 600 [546 A.2d 1041]) correctly


                                             8.
affirmed attempted murder convictions even though it erred in relying on
transferred intent. ‘The result in Wilson can best be explained and justified
by distinguishing between transferred intent and what is essentially
concurrent intent.’ (Ford v. State, supra, 625 A.2d at p. 1000.)

         “The Ford court explained that although the intent to kill a primary
target does not transfer to a survivor, the fact the person desires to kill a
particular target does not preclude finding that the person also,
concurrently, intended to kill others within what it termed the ‘kill zone.’
‘The intent is concurrent … when the nature and scope of the attack, while
directed at a primary victim, are such that we can conclude the perpetrator
intended to ensure harm to the primary victim by harming everyone in that
victim’s vicinity. For example, an assailant who places a bomb on a
commercial airplane intending to harm a primary target on board ensures by
this method of attack that all passengers will be killed. Similarly, consider
a defendant who intends to kill A and, in order to ensure A’s death, drives
by a group consisting of A, B, and C, and attacks the group with automatic
weapon fire or an explosive device devastating enough to kill everyone in
the group. The defendant has intentionally created a “kill zone” to ensure
the death of his primary victim, and the trier of fact may reasonably infer
from the method employed an intent to kill others concurrent with the intent
to kill the primary victim. When the defendant escalated his mode of attack
from a single bullet aimed at A’s head to a hail of bullets or an explosive
device, the factfinder can infer that, whether or not the defendant succeeded
in killing A, the defendant concurrently intended to kill everyone in A’s
immediate vicinity to ensure A’s death. The defendant’s intent need not be
transferred from A to B, because although the defendant’s goal was to kill
A, his intent to kill B was also direct; it was concurrent with his intent to
kill A. Where the means employed to commit the crime against a primary
victim create a zone of harm around that victim, the factfinder can
reasonably infer that the defendant intended that harm to all who are in the
anticipated zone. This situation is distinct from the “depraved heart” [i.e.,
implied malice] situation because the trier of fact may infer the actual intent
to kill which is lacking in a “depraved heart” [implied malice] scenario.’
(Ford v. State, supra, 625 A.2d at pp. 1000-1001, fn. omitted.)

        “California cases that have affirmed convictions requiring the intent
to kill persons other than the primary target can be considered ‘kill zone’
cases even though they do not employ that term. In People v. Vang (2001)
87 Cal.App.4th 554, 563-565, for example, the defendants shot at two
occupied houses. The Court of Appeal affirmed attempted murder charges
as to everyone in both houses—11 counts—even though the defendants
may have targeted only one person at each house. ‘The jury drew a


                                      9.
       reasonable inference, in light of the placement of the shots, the number of
       shots, and the use of high-powered, wall-piercing weapons, that defendants
       harbored a specific intent to kill every living being within the residences
       they shot up.… The fact they could not see all of their victims did not
       somehow negate their express malice or intent to kill as to those victims
       who were present and in harm’s way, but fortuitously were not killed.’
       [Citations.]” (Bland, supra, 28 Cal.4th at pp. 329-330.)
       The Supreme Court concluded the facts in the case before it compelled the same
conclusion. “Even if the jury found that defendant primarily wanted to kill Wilson rather
than Wilson’s passengers, it could reasonably also have found a concurrent intent to kill
those passengers when defendant and his cohort fired a flurry of bullets at the fleeing car
and thereby created a kill zone. Such a finding fully supports attempted murder
convictions as to the passengers.” (Bland, supra, 28 Cal.4th at pp. 330-331.)
       Important to this case is the Supreme Court’s observation in a footnote: “This
concurrent intent theory is not a legal doctrine requiring special jury instructions, as is the
doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may
draw in a given case: a primary intent to kill a specific target does not rule out a
concurrent intent to kill others.” (Bland, supra, 28 Cal.4th at p. 331, fn. 6.)
       The Supreme Court applied these concepts to the facts before it in concluding that
the kill zone theory was applicable. “In this case, defendant’s intent to kill Wilson does
not transfer to [the passengers]. This is so, not because defendant killed his intended
target, but because transferred intent does not apply to attempted murder. Whether
defendant is guilty of attempted premeditated murder of [the passengers] depends on his
mental state as to them, not on his mental state as to Wilson.” (Bland, supra, 28 Cal.4th
at pp. 331-332.) “Moreover, we agree … that the evidence here virtually compelled a
finding that, even if defendant primarily wanted to kill Wilson, he also, concurrently,
intended to kill the others in the car. At the least, he intended to create a kill zone.” (Id.
at p. 333.)




                                              10.
       Stone involved a defendant who shot into a group of people without a specific
target. The Supreme Court held that because the “mental state required for attempted
murder is the intent to kill a human being, not a particular human being,” the defendant
could be convicted of attempted murder. (Stone, supra, 46 Cal.4th at p. 134.)
       The facts, unsurprisingly, involved a confrontation between rival gangs. After an
initial confrontation, members of the rival gang, including the defendant, returned to the
scene of the original confrontation. These members observed approximately 10 members
of the other gang sitting on the ground. Stone pulled a gun, and without identifying a
specific target, fired a single shot at the group. The jury found Stone guilty of attempted
murder. Stone appealed, arguing there was no evidence that he had targeted an
individual, and therefore he could not be convicted of attempted murder.
       The Supreme Court began its analysis by discussing Bland in detail, and
specifically the discussion of the “kill zone” contained therein. (Stone, supra, 46 Cal.4th
at pp. 137-138.) However, like the Court of Appeal, the Supreme Court concluded that
the trial court erred in instructing the jury with the kill zone theory. (Id. at p. 138.) “The
kill zone theory simply does not fit the charge or facts of this case. That theory addresses
the question of whether a defendant charged with the murder or attempted murder of an
intended target can also be convicted of attempting to murder other, nontargeted, persons.
Here, defendant was charged with but a single count of attempted murder. He was not
charged with 10 attempted murders, one for each member of the group at which he shot.
As the Court of Appeal explained, ‘There was no evidence here that [defendant] used a
means to kill the named victim, Joel F., that inevitably would result in the death of other
victims within a zone of danger. [Defendant] was charged only with the attempted
murder of Joel F. and not with the attempted murder of others in the group on which
[defendant] fired his gun.’” (Ibid.)
       Nonetheless, the Supreme Court concluded that one “who intends to kill can be
guilty of attempted murder even if the person has no specific target in mind. An

                                             11.
indiscriminate would-be killer is just as culpable as one who targets a specific person.”
(Stone, supra, 46 Cal.4th at p. 140.) The Supreme Court explained that “One difference
regarding intent to kill does exist between murder and attempted murder. A person who
intends to kill can be guilty of the murder of each person actually killed, even if the
person intended to kill only one. [Citation.] The same is not necessarily true regarding
attempted murder. Rather, ‘guilt of attempted murder must be judged separately as to
each alleged victim.’ [Citation.] But this is true whether the alleged victim was
particularly targeted or randomly chosen. As the district attorney aptly summarizes in
this case, ‘A defendant who intends to kill one person will be liable for multiple counts of
murder where multiple victims die, but only one count of attempted murder where no one
dies.’ But when no one dies that person will be guilty of attempted murder even if he or
she intended to kill a random person rather than a specific one.” (Id. at p. 141.)
       Calderon’s assertion the kill zone theory applies where the defendant fires at a
group of people without a specific target is simply wrong. The Supreme Court stated that
these facts are inconsistent with the kill zone theory. (Stone, supra, 46 Cal.4th at p. 138.)
       Not only is Calderon’s argument unsupported by the cases cited by him, the jury
instructions were correct. Calderon did not object to the initial instruction on the kill
zone theory, and this indeed is a correct statement of the law. Nor does he object to the
initial instruction on appeal. Instead, he focuses on the trial court’s response to the jury’s
question, but in doing so he ignores the most important part of the response.
       The trial court’s response contained two parts. In the second part of the response,
the part on which Calderon focuses, the trial court relied on the above quoted footnote
from Bland to tell the jury that “A ‘kill zone’ theory is not a legal doctrine requiring a
special jury instruction. Rather, it is simply a reasonable inference that you, the jury,
may draw depending upon what you determine to be the facts.” This is a correct
statement of the law and also responded to the jury’s question. But, more importantly, in



                                             12.
the first part of its response the trial court also instructed the jury to review CALCRIM
No. 600 for the full explanation of the kill zone theory.
       This was a thorough response to the jury’s question and obviously provided all the
aid the jury needed because they returned with a verdict a short while after receiving the
response. There was no error and, accordingly, trial counsel was not ineffective for
failing to object to the response.
II.    Prosecutorial Misconduct2
       During closing argument, the prosecutor attempted to draw the distinction between
Calderon the gang member and Calderon the defendant. “Now, we’ve been sitting here
for the past five days, and you’ve been looking at Mr. Calderon. Every day he’s had a
nice shirt on, his hair’s nicely groomed, he’s got some glasses on, he’s got a nice tie on.”
       At this point defense counsel objected, the trial court overruled, and the prosecutor
continued his argument. “But is this the real Miguel Calderon? Yes, his physical being
sits here in the courtroom for the past five days. But is that actually who he is. No. He’s
done up by his attorney or by his family who provides him the clothing.”
       Defense counsel again objected and the trial court sustained the objection. The
prosecutor then continued his argument that Calderon was a gang member acting on
behalf of the gang when he shot at the Claves house.
       Calderon contends that the first comment was an improper comment on his
demeanor, requiring reversal. People v. Boyette (2002) 29 Cal.4th 381 explains

       2“The  applicable federal and state standards regarding prosecutorial misconduct
are well established. ‘“A prosecutor’s … intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.’”’ [Citations.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]”
(People v. Samayoa (1997) 15 Cal.4th 795, 841.)




                                             13.
“comment during the guilt phase of a capital trial on a defendant’s courtroom demeanor
is improper [citation] unless such comment is simply that the jury should ignore a
defendant’s demeanor [citation]. ‘In criminal trials of guilt, prosecutorial references to a
nontestifying defendant’s demeanor or behavior in the courtroom have been held
improper on three grounds: (1) Demeanor evidence is cognizable and relevant only as it
bears on the credibility of a witness. (2) The prosecutorial comment infringes on the
defendant’s right not to testify. (3) Consideration of the defendant’s behavior or
demeanor while off the stand violates the rule that criminal conduct cannot be inferred
from bad character.’ [Citation.]” (Id. at p. 434.)
       In Boyette the prosecutor argued in closing argument, “[Defendant is a v]ery
remorseless, cold-blooded individual .… Remember, appearances can be very deceiving
and he’s been working on you. He has been working on you, watching you come and go,
smiling and waving when he’s introduced to you. Appearances, ladies and gentlemen,
can be very deceiving.” (Boyette, supra, 29 Cal.4th at p. 434.) The Supreme Court
concluded the prosecutor’s comments were ambiguous, but the comments constituted
misconduct to the extent she was suggesting the defendant was duplicitous based on his
courtroom demeanor. (Ibid.) The Supreme Court, however, found no prejudice because
(1) the defendant testified, (2) the comments were brief, (3) and there was ample
evidence of the defendant’s guilt and lack of credibility. (Id. at pp. 434-435.)
       The comments to which Calderon objected here were far less egregious. The
comments could be interpreted as suggesting that he was duplicitous because his
appearance in court was far different than his actions outside the courtroom. Even if we
were to assume misconduct, however, there is no possibility that Calderon suffered any
prejudice. The comments were brief, they were not strictly comments on demeanor, and
the evidence against Calderon, including his own confession, was overwhelming. Since
there was no pattern of conduct that infected the trial with unfairness, and the prosecutor



                                             14.
did not use deceptive or reprehensible methods to attempt to persuade the jury, there is no
discernable prejudice. We thus conclude there are no grounds for reversal.
III.     Custody Credits
         The trial court awarded Calderon presentence custody credits of 251 days for time
served and 37 days of conduct credits. This credit appears to have omitted the time
Calderon spent in the juvenile detention facility. The People concede Calderon should
have received credit for the time he spent in the juvenile detention facility. (People v.
Saldivar (1984) 154 Cal.App.3d 111, 114.) On remand the trial court must correct this
error.
IV.      Cruel and Unusual Punishment
         Calderon, 17 at the time he committed the crimes of which he was convicted, was
sentenced to a term of 120 years to life. In Graham, supra, 560 U.S. 48, the United
States Supreme Court held that a sentence of life without the possibility of parole for a
nonhomicide offense violated the Eighth Amendment’s prohibition against cruel and
unusual punishment if the offender was under 18 at the time he or she committed the
offense. Calderon claims the sentence he received constitutes cruel and unusual
punishment because it is virtually certain he will never be released from prison.
         The People argue that Graham does not apply to Calderon’s sentence for three
reasons. First, the People assert that attempted murder is a homicide offense, and
Graham applies only to nonhomicide offenses. Second, Graham applies only to
sentences of life without the possibility of parole, and Calderon did not receive this
sentence. Third, cumulative or consecutive sentences do not implicate the Eighth
Amendment.
         In Caballero, supra, 55 Cal.4th 262, a decision that came out after the briefing in
this case was completed, the California Supreme Court considered and rejected each of
the People’s arguments.



                                              15.
       Caballero was convicted of three counts of attempted murder and enhancements
for (1) personally and intentionally discharging a firearm (§ 12022.53, subds. (c), (d)),
(2) inflicting great bodily harm on one victim (§ 12022.7), and (3) committing the crimes
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The charges arose
out of an incident where Caballero shot a firearm at three rival gang members, injuring
one victim. He was sentenced to a term of 110 years to life. His appeal to the Supreme
Court asserted his sentence constituted cruel and unusual punishment, in violation of the
Eighth Amendment and Graham.
       The Supreme Court thoroughly considered, and rejected, each of the People’s
arguments. (Caballero, supra, 55 Cal.4th at pp. 267-269.) Since our case virtually is
indistinguishable from Caballero, we too reject each of the People’s arguments and
conclude that Calderon’s sentence is cruel and unusual, in violation of the Eighth
Amendment. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) To
guide the trial court, we quote Caballero’s conclusion:

       “Consistent with the high court’s holding in Graham …, we conclude that
       sentencing 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 proper authorities may later
       determine that youths 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.
       Under Graham’s nonhomicide ruling, the sentencing court must consider
       all mitigating circumstances attendant in the juvenile’s crime and life,
       including but not limited to his or her chronological age at the time of the
       crime, whether the juvenile offender was a direct perpetrator or an aider and
       abettor, and his or her physical and mental development, so that it can
       impose a time when the juvenile offender will be able to seek parole from
       the parole board. The Board of Parole Hearings will then determine
       whether the juvenile offender must be released from prison ‘based on
       demonstrated maturity and rehabilitation.’ [Citation.] Defendants who
       were sentenced for crimes they committed as juveniles who seek to modify
       life without parole or equivalent de facto sentences already imposed may
       file petitions for writs of habeas corpus in the trial court in order to allow

                                            16.
       the court to weigh the mitigating evidence in determining the extent of
       incarceration required before parole hearings. Because every case will be
       different, we will not provide trial courts with a precise timeframe for
       setting these future parole hearings in a nonhomicide case. However, the
       sentence must not violate the defendant’s Eighth Amendment rights and
       must provide him or her a ‘meaningful opportunity to obtain release based
       on demonstrated maturity and rehabilitation’ under Graham’s mandate.”
       (Caballero, at pp. 268-269.)
                                      DISPOSITION
       The judgment is reversed and the matter is remanded to the trial court for
resentencing. At the hearing, the trial court is instructed to recalculate the custody credits
to which Calderon is entitled. The judgment is otherwise affirmed.

                                                                 _____________________
                                                                    CORNELL, Acting P.J.


WE CONCUR:


 _____________________
KANE, J.


 _____________________
FRANSON, J.




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