Filed 10/1/14 P. v. Harris CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A136727
v.
NICHOLAS HARRIS,                                                     (Alameda County
                                                                     Super. Ct. No. 167882)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         Appellant, who was associated with a gang, was convicted of the fatal shooting of
two young men affiliated with a rival gang. Appellant was not charged with any gang-
related crime or enhancement, but the trial court admitted stipulated facts about gangs,
and evidence about appellant’s gang connections, to show appellant’s motive for the
murders. Appellant was 17 years old at the time of the murders, but was tried as an adult,
and sentenced to an indefinite prison term of 100 years to life.
         Appellant contends the trial court erred in admitting an excessive amount of gang
evidence, as well as excessive and improper evidence of appellant’s telephone calls from
jail. Appellant further contends he received ineffective assistance of counsel, in that his
trial counsel should not have stipulated to background facts about the gangs with which
appellant and the victims were associated; should have objected on authenticity grounds
to the admission of electronic evidence derived from social media websites; and should
have objected and requested a curative instruction when the prosecutor made an


                                                             1
assertedly improper comment on appellant’s exercise of his right not to testify. Appellant
also argues that the cumulative effect of the trial judge’s evidentiary rulings and his trial
counsel’s ineffectiveness deprived him of a fair trial.
        We reject all of these arguments, and affirm appellant’s convictions. However, we
find merit in appellant’s challenge to his sentence. Because appellant was a juvenile at
the time of the murders, the trial court was constitutionally required to consider certain
potentially mitigating aspects of appellant’s individual circumstances before sentencing
him to the functional equivalent of life in prison without parole, and to exercise its
sentencing discretion in light of those factors. The record strongly suggests that the trial
court failed to undertake this constitutionally required analysis. We therefore reverse as
to appellant’s sentence, and remand for resentencing.
                                              II.
                         FACTS AND PROCEDURAL BACKGROUND
                                      A. The Shooting
        On November 6, 2010, a group of people started filming a music video at Acorn
Towers, a low-income housing project in Oakland. Prior video productions at the same
location had led to gang-related violence, so when the filming drew a crowd, the security
officers at the project became concerned, and called a halt to the filming.
        Later the same day, during the afternoon, two young men named Nario Jackson
and Edward Hampton arrived at the Acorn Towers complex in a purple Jaguar, and
parked in front of one of the buildings. Jackson and Hampton were associated with two
gangs, Ghost Town and Lower Bottoms, that were allied with one another. Ghost Town
and Lower Bottoms were rivals of the Gas Team gang, which claimed Acorn Towers as
part of its territory.
        As Jackson and Hampton sat in their parked car, three or four young Black men
approached and began speaking with them. One of the men was Dionte Houff, known as
“Birdman,” who was a member of the Gas Team gang. About 20 or 30 minutes after
Houff and his companions approached the car, another young man, who was wearing
jeans and a black sweatshirt with the hood pulled up, approached the Jaguar from the


                                              2
rear. The man pulled out a semiautomatic pistol, fired several shots into the car in rapid
succession, and then ran away, heading through a side gate toward the rear of the Acorn
Towers buildings.
       A woman named Keishawn McQuirter, who was outside in front of Acorn Towers
playing with her toddler son, saw the shooting. Although she did not know appellant
well, she recognized him as the shooter, both from what she could see of his face and
from his distinctive “bowlegged” walk.1 Soulinha Chinhdamat, an Acorn Towers
security guard, also witnessed the shooting, but did not see the shooter’s face and was
unable to identify him.
       Chinhdamat described the shooter as a dark-complexioned man about five feet
eight inches tall, weighing about 160 pounds.2 Chinhdamat also observed that the other
young men near the victims’ car did not seem surprised by the shooting, and
accompanied the shooter as he ran away.
       Chinhdamat ran to the Jaguar, but the victims were unresponsive. He then ran in
the direction in which the shooter had fled. He lost sight of the shooter, however, and
when he reached the rear of the building, there were about 30 people there.
                               B. The Police Investigation
       Police officers arrived at the scene soon after the shooting, and found the victims
unresponsive. Both victims soon died at the scene. Most of the bystanders at the scene
were reluctant to speak to the police, for fear of retaliation. The police found several
spent nine-millimeter shell casings inside and near the car, all of which were later

       1
          According to the probation report, appellant had surgery on one of his legs when
he was about 12 years old, which left him feeling occasional pain and produced difficulty
in walking. Oakland Police Sergeant Sean Fleming tried to interview McQuirter shortly
after the shooting, but at the time, she did not reveal what she had seen because she had a
robbery charge pending against her and was uncomfortable with the police. Two years
elapsed before McQuirter finally told the police she had witnessed the murder.
       2
          Respondent’s brief states that this description matched appellant’s height and
approximate weight at the time of the shootings, but gives no supporting record citation
for this assertion. We therefore have no basis upon which to assess what weight the jury
could properly have given to this evidence.


                                              3
determined to have been fired from the same gun. The police also dusted the car for
fingerprints, and found the prints of appellant’s left palm and left index finger on the rear
hood of the car. The fingerprints of Gas Team gang members Houff and Anthony
Meyers were found on the side of the car, along with others that could not be indentified.
       A few months after the shooting, a person known as “Toot Tee,” who was a family
member of one of the victims (Hampton), sent Sergeant Fleming an email about the
killing. The email was represented to consist of transcriptions of electronic messages
exchanged between appellant (using the nickname “airitout223s,” a variant of appellant’s
nickname “Air It Out”) and his former girlfriend, Roseanna Manning. Although
Manning had been a member of Gas Team in the past, she was close to Hampton’s
mother. Perhaps for this reason, Manning had copied her exchange of messages with
appellant into an email and sent it to Hampton’s stepfather, who had forwarded it to Toot
Tee.
       In a telephone call leading up to his exchange of messages with Manning, as well
as in the messages themselves, appellant told Manning he was in Seattle. Appellant
admitted to Manning that he had shot Jackson and Hampton, and explained he had done
so at the direction of members of the Gas Team gang, in order to “prove the point [I] was
down with my niggas,” i.e., to prove his loyalty to the gang.3 He denied that he intended
to kill the victims, however: “I told them get out my hood they keep talking shit ii start
shootin i swear on burger ronnie and on my brother dame it wasn’t to kill them it was to
make them cut,” i.e., to make them leave. When Manning asked appellant why he was
telling her about his responsibility and motives for the shooting, he responded, “cuz I’m
not comin back & what could they do to me now.” In a later telephone conversation with




       3
        Throughout this opinion, when quoting directly from text messages or material
posted on social media, we have retained the capitalization, punctuation, spelling, and
wording of the original. In some instances, this results in our quoting words that would
otherwise be inappropriate for use in an appellate opinion.


                                              4
Manning, appellant expressed regret for his crime, and reiterated that he had not intended
to kill the victims.4
       After receiving the email from Toot Tee, the police investigated appellant, and
determined that he had been on juvenile probation at the time of the shooting. As a
condition of appellant’s probation, he wore a tracking device on his ankle. The location
records derived from the tracking device showed that appellant was in front of Acorn
Towers at the time of the shooting. The records also indicated that appellant removed the
device from his ankle two days after the shooting.
       Several months after the shooting, Oakland police picked up another young man,
Javiya Evans, for an interview. Evans was associated with the Baby Gas gang, an
affiliate or subgroup of Gas Team. A recording of the interview was played for the jury
at appellant’s trial. When questioned, Evans proved to be aware of rumors circulating on
the streets that it was Evans and appellant who had killed Hampton and Jackson.5 Evans
told the police that he had seen appellant commit the shooting from the window of his
cousin’s fourth floor apartment at Acorn Towers. Evans’s description of the event was
consistent with other evidence; he said appellant was wearing jeans and a black hoodie,
and used a silver nine-millimeter handgun.
       Evans told the police it was his understanding that appellant was only supposed to
“strip” Jackson and take a medallion Jackson was wearing, and was not supposed to kill
him. Evans also told the police it was commonly known that it was appellant who
attacked Jackson, and that he did so because Jackson was a member of the Ghost Town



       4
          Manning testified against appellant at his preliminary hearing, as well as at trial.
During the preliminary hearing, people in the courtroom audience made hand gestures at
her that mimicked firing a gun. Manning was placed in protective custody for a month
after the hearing. After she was released, she was threatened with guns, shot at, and
slapped, apparently in retaliation for her preliminary hearing testimony and to discourage
her from testifying at trial.
       5
         Appellant’s defense at trial focused on the theory that it was Evans rather than
appellant who shot Jackson and Hampton.


                                              5
gang and was hanging around Acorn Towers, which was Gas Team’s territory. Evans
also reported that appellant sold the murder weapon, and then departed for Seattle.
       During the interview, Evans expressed fear that he would be killed in retaliation
for having spoken with the police. While Evans testified at appellant’s trial, the judge
interrupted his testimony three times due to disruptive behavior by appellant and persons
in the gallery, which appeared to be intended to influence Evans’s testimony through
intimidation.
       In his trial testimony, as well as at appellant’s preliminary hearing, Evans recanted
his statement about seeing appellant commit the shooting. Evans acknowledged at trial
that appellant was a member of Gas Team, but claimed that “Gas” stood for “Great
African Scholars” and that the organization’s purpose was to encourage the members to
attend school. Evans claimed to have been in San Francisco at the time of the shooting,
and said he did not remember saying the things the police reported him saying during his
interview. He explained his accusation of appellant by saying he wanted to deflect
suspicion from himself; was drunk and high during the interview; and lied to police
because he was jealous of appellant’s success with girls and angry at appellant for
slapping and embarrassing him.
       Sergeant Fleming interviewed appellant. A recording of the interview was
introduced into evidence at appellant’s trial. In the interview, appellant denied being
involved with the shooting. He admitted he was in the area of Acorn Towers at the time,
but explained he was there to attend a baby shower later in the day. Appellant told
Fleming he was in a bathroom behind the high-rise building, smoking marijuana, when
he heard gunshots and screams and saw people running, so he started running as well.
                       C. Electronic Evidence from Social Media
       As already noted, appellant left the Bay Area for Seattle within a few days after
the killings. While in Seattle, appellant posted a video on YouTube showing him and
some friends at a social gathering. The video shows appellant “flashing” a distinctive
medallion that belonged to Jackson, according to Manning, and which was reported to the
police as missing after his death.


                                             6
       During the same time period as the YouTube upload, appellant added numerous
posts to a Facebook page he maintained using his “Air It Out” nickname. On
December 2, 2010, less than a month after the murders, appellant posted the following
message: “Yeah I KNOCKED em down and his NIGGAS know I did it. INSTEAD of
gettin wit it niggas SNITCHING like BITCHESSSSSSSSSS.” Appellant also told his
Facebook audience: “dnt fonk wit snitches lil bra. nigas get knocked down everyday
bitch . . . yal gne forget them niggas next month. damn yal runnin yal mouth like
investigators shit man dat aint good for yo health believe dat.”
                    D. Gang Stipulation and Other Gang Evidence
       Although the prosecution alleged no gang crime charges or gang enhancements
against appellant, it did seek to prove that appellant’s motive for the murders was gang-
related. In addition, the prosecution sought to show that Evans’s retraction of his
statement that appellant committed the murders, as well as Manning’s fear of testifying,
were due to intimidation of these witnesses by appellant’s fellow gang members. For
these purposes, the trial judge permitted the prosecution to introduce evidence about the
gang affiliations of appellant and the victims, as well as a stipulation (the gang
stipulation), which was admitted in lieu of testimony by a prosecution gang expert.
       The gang stipulation read in its entirety as follows: “ACORN street gang is
involved in various criminal activities. It is composed of African-American males and
females of all ages with over 100 members and associates. ACORN gang consists of
various subsets including Gas Team, Baby Gas Team, and ACORN MOB. Gang
members associated with the Gas Team will also represent ACORN. Acorn gang claims
territory in West Oakland between 14th Street (to the north), 7th Street (to the south),
Union Street (to the west), and Market Street (to the east) and includes the ACORN
Housing Projects/City Towers (on 8th Street, 7th Street, and Market Street). Drugs
including but not limited to heroin, cocaine, marijuana, and Robitussin with Codeine
(‘Syrup’) are all sold within ACORN gang turf. ACORN gang members will configure
their fingers into an ‘A’ to symbolize and represent ACORN. Gang members identify
themselves with a moniker in order to prevent law enforcement, rival gang members, or


                                              7
citizens in the community from knowing their true identity in the event the gang member
was involved in a crime. The ACORN gang is a well known street gang in the City of
Oakland. Up until several years ago, ACORN gang had a strong alliance with another
West Oakland gang known as Ghost Town. Some factions within Ghost Town include
Circle Boyz and P-Team. However, after an incident in June 2008, ACORN gang and
Ghost Town began to feud and [this] resulted in ongoing shootings/attacks in rival gang
territories. Currently, the ACORN gang’s main rivals are the Lower Bottoms and Ghost
Town Gangs of West Oakland.”
       The remaining gang evidence included appellant’s own statement to the police that
he was from Acorn Towers, and that the Acorn neighborhood had a longstanding gang
rivalry with Ghost Town. Evans and Manning testified that appellant was part of Gas
Team. In addition, the prosecution introduced 12 photographs of appellant with other
Gas Team and Baby Gas members, wearing gang attire and throwing gang signs, labeled
with “AirItOut223s,” “Gas Team,” “Acorn,” “the mob,” “Fuck Ghost Town,” and “Fuck
the Bottoms.” The trial court excluded another 54 photographs on the ground that they
were repetitive and cumulative.
       The jury was also shown a four-minute rap music video entitled “Party in the
Jetz,” featuring appellant as the vocalist (self-identified in the video as “Air It Out”). The
video was posted on the Internet by “Airitout223s” in April 2010. Its visual content
consisted primarily of photographs of guns, ammunition, and money, as well as
photograph depicting appellant, along with other people known to be Gas Team
members, throwing gang signs and wearing gang attire. The lyrics included threats
against Ghost Town and references to shooting and killing people, such as “You slide
through 8th Street and get your whole shit whacked.”
                               E. Telephone Calls from Jail
       After appellant was arrested, while he was in jail awaiting trial, he made numerous
telephone calls to his mother and to various friends. The telephone calls were tape
recorded and transcribed. The trial court reviewed the calls, and permitted the
prosecution to admit about four hours’ worth of tape recordings into evidence. The calls


                                              8
were not played to the jury all at once, but rather interspersed with live testimony at
convenient points during the trial.
       The content of the calls included: (1) appellant’s discussions with his mother about
handling and disposal of a gun, which they referred to euphemistically as an “iPod,” as
well as an apparent tax fraud scheme; (2) discussions about making arrangements to
populate the courtroom audience at appellant’s preliminary hearing with gang members
known to Evans, in order to intimidate the latter into changing his testimony;
(3) comments on the evident success of the effort to intimidate Evans at the preliminary
hearing; (4) references to physical conflicts at the jail between appellant and members of
Ghost Town who were incarcerated with him; (5) appellant’s admission that he had been
“on the run . . . out of state” after the murders; (6) appellant’s requests to be sent
photographs of him and his friends, but with the gang signs obscured; (7) appellant’s
advice to two of his gang associates to “stay tucked for a minute” because the police had
photographs of them in appellant’s company; (8) numerous instances of appellant
repeatedly urging people to assault Manning, or to instruct others to do so, in order to
discourage or prevent Manning from testifying at appellant’s trial, as well as inquiries
about whether such assaults had occurred yet; and (9) discussions about appellant’s desire
to arrange the copying and distribution of partial transcripts of Manning’s statements to
the police, in order to motivate gang members to take revenge on her for implicating
them in gang activities.6
                             F. Proceedings in the Trial Court
       On December 20, 2011, appellant was charged by information with two counts of
first degree murder (Pen. Code, § 187, subd. (a)7), with gun use enhancement allegations




       6
       While appellant was in jail, a search of his cell revealed that he had a copy of
Manning’s statement, from which several pages were missing.
       7
           All further statutory references are to the Penal Code unless otherwise noted.


                                               9
as to each count. (Former §§ 12022.5, subd. (a); 12022.53, subds. (b), (c), (d), (g);
12022.7, subd. (a).8) Appellant’s jury trial began on May 4, 2012.
       On June 19, 2012, the jury convicted appellant of both counts of first degree
murder, and returned true findings on all the gun use enhancement allegations. On
September 21, 2012, the trial court sentenced appellant to two consecutive terms of 25
years to life for the murders, plus two consecutive terms of 25 years to life for the gun
use enhancements (§ 12022.53, subd. (d)), for a total term of 100 years to life. Appellant
filed a notice of appeal the same day.
                                            III.
                                         DISCUSSION
                       A. Admission of Excessive Gang Evidence
       Although appellant was not charged with any gang-related crime or enhancement,
evidence of appellant’s association with a gang hostile to that of the victims was plainly
relevant to show appellant’s motive for the murder. (See People v. McKinnon (2011) 52
Cal.4th 610, 655 (McKinnon) [evidence of gang affiliations admissible to establish
motive and intent].) In addition, evidence of appellant’s requests that his gang associates
intimidate two of the prosecution’s key witnesses, Manning and Evans, was relevant to
those witnesses’ credibility. (People v. Garcia (2008) 168 Cal.App.4th 261, 287-288;
People v. Olguin (1994) 31 Cal.App.4th 1355, 1368 (Olguin).) Indeed, appellant
implicitly concedes that the prosecution was entitled to introduce some evidence
regarding appellant’s gang affiliation and the witness intimidation efforts of his
associates.
       Appellant argues, however, that the prosecution should not have been permitted to
“inundate” the jury with gang evidence and make it a focus of the case, so as to “paint[] a

       8
         In 2010, the Legislature “reorganize[d] without substantive change the
provisions of the Penal Code relating to deadly weapons.” (Legis. Counsel’s Dig., Sen.
Bill No. 1080, 10 Stats. 2010 (2009–2010 Reg. Sess.) Summary Dig., pp. 4137–4138.)
The new statutes became operative January 1, 2012, after the information in the present
case was filed. All further references to former Penal Code sections are to these statutes
as they read before the reorganization.


                                             10
picture of [appellant] as an unapologetic ‘gang banger,’ readily disposed to committing
violent crimes.” As appellant acknowledges, our standard of review on this question is
abuse of discretion, the same standard that applies on review of Evidence Code
section 352 issues generally. (Olguin, supra, 31 Cal.App.4th at p. 1369 [“The admission
of gang evidence over an Evidence Code section 352 objection will not be disturbed on
appeal unless the trial court’s decision exceeds the bounds of reason.”]; see generally
People v. Thomas (2012) 53 Cal.4th 771, 806 [“Evidence Code section 352 gives the trial
court discretion to ‘exclude evidence if its probative value is substantially outweighed by
the probability that its admission will . . . create substantial danger of undue
prejudice . . . .’ A trial court’s exercise of discretion under section 352 will be upheld on
appeal unless the court abused its discretion, that is, unless it exercised its discretion in an
arbitrary, capricious, or patently absurd manner. [Citations.]”].)
       In assessing appellant’s contention, we note that the trial court devoted a
significant amount of pretrial hearing time to determining the nature and extent of the
gang related evidence that would be admitted. While engaged in that process, the court
expressly acknowledged its duty to balance the probative value of the evidence against its
prejudicial and potentially inflammatory effect, and excluded the majority (53 out of 65)
of the gang member photographs that the prosecution sought to admit, as well as a video
about the Baby Gas gang in which Evans played a prominent role. Thus, the record
affirmatively demonstrates that the trial court exercised its discretion in a thoughtful and
considered fashion.
       Appellant argues that the trial court nonetheless abused its discretion. In support
of this argument, appellant cites McKinnon, supra, 52 Cal.4th at pages 653-656 as
holding that in a case that does not involve gang enhancement allegations, the extent of
the gang evidence should be limited. McKinnon was a capital case in which the
defendant was charged with two murders. Circumstances suggested that the second
murder was motivated by the defendant’s gang membership, but the first murder was
committed for no apparent reason. (Id. at p. 620.) Even though the defendant was not
charged with any gang enhancements, the Supreme Court held that evidence of the


                                              11
defendant’s gang membership and activities was properly admitted as showing the
motive for the second murder, and that its irrelevance to the first murder did not require
the trial court to sever the two cases. (Id. at pp. 629-632, 655.)
       McKinnon also rejected the defendant’s contention that the gang evidence lacked
foundation. (McKinnon, supra, 52 Cal.4th at pp. 655-656.) In that context, the court
noted that “the gang evidence was a relatively minor component of the prosecution’s
case, and was not unduly inflammatory,” and that it “did not emphasize the general
violent nature of gang activity or suggest that the defendant’s gang membership
predisposed him to violent crimes, but instead focused narrowly on the prosecution’s
theory” that the second murder was gang-motivated. (Id. at p. 656.) The court did not,
however, hold that these attributes of the gang evidence were a necessary precondition
for its admissibility.
       McKinnon may stand for the proposition that in a case not involving gang charges,
gang evidence is less objectionable or less prejudicial if it is limited in extent and
narrowly focused. But the Supreme Court did not hold that the evidence must meet these
criteria in order for its admission to fall within the ambit of the trial court’s discretion.
The gang evidence in the present case, like that held properly admitted in McKinnon, “did
not emphasize the general violent nature of gang activity.” (McKinnon, supra, 52 Cal.4th
at p. 656.) Only the penultimate sentence in the gang stipulation referred to violent
crime, and although the video included images of guns, as well as lyrics referring to
violent crime, neither the photographs nor the video actually depicted any violent acts.
       Appellant also cites People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran) in
support of his argument that the trial court admitted excessive gang evidence. In
Albarran, the defendant and another man repeatedly fired guns into an occupied home.
The defendants did not know the inhabitants of the house, and there was no apparent
motive for the crime. The occupants of the home were not rival gang members, and there
was no evidence that the defendant or his companion had announced themselves as gang
members in connection with the shooting, or that the gang had publicly taken credit for it.
(Id. at p. 227.) Nonetheless, a gang enhancement was alleged, on the theory that the


                                               12
purpose of the shooting was to enhance the defendant’s status within the gang to which
the defendant admitted belonging.
       At the hearing on the defendant’s motion to exclude the evidence, the prosecutor
admitted that he had no evidence of a gang connection or gang motive for the crime,
other than the opinion of a gang expert. (Albarran, supra, 149 Cal.App.4th at pp. 217-
219.) Nonetheless, the trial court denied the defendant’s motion to exclude the evidence.
At the defendant’s trial, the prosecution introduced “extremely inflammatory gang
evidence . . . , which had no connection to these crimes. The prosecution presented a
panoply of incriminating gang evidence, which might have been tangentially relevant to
the gang allegations, but had no bearing on the underlying charges.” (Id. at p. 227.) The
jury convicted the defendant, and found the enhancement allegations true. The trial judge
granted the defendant’s motion for new trial on the ground that the gang enhancement
allegations were not supported by sufficient evidence, and dismissed those allegations,
but declined to order a new trial on the underlying charges, based on the view that the
defendant would have been convicted even if the gang evidence had not been admitted.
(See id. at p. 226.)
       On appeal, a divided court reversed, and remanded for a new trial. The majority
characterized the case as “one of those rare and unusual occasions where the admission of
evidence has violated federal due process and rendered the defendant’s trial
fundamentally unfair.” It explained that “[g]iven the nature and amount of th[e] gang
evidence at issue, the number of witnesses who testified to [the defendant’s] gang
affiliations and the role the gang evidence played in the prosecutor’s argument, we are
not convinced beyond a reasonable doubt that the error did not contribute to the verdict.”
(Albarran, supra, 149 Cal.App.4th at p. 232.)
       In contrast to the situation in Albarran, supra, 149 Cal.App.4th 214, in the present
case there was ample evidence that the shooting was gang-related, including appellant’s
own statements to the police and to Manning. Accordingly, unlike in Albarran, where
“the prosecution did not prove that th[e] gang evidence had a bearing on the issues of
intent and motive” (id. at p. 230), the gang evidence here was demonstrably relevant to


                                            13
prove appellant’s motive and intent in committing the murders. (Cf. People v. Hunt
(2011) 196 Cal.App.4th 811, 817-818 [gang expert’s testimony properly admitted where
charged robberies were alleged to have been committed for benefit of gang;
distinguishing Albarran].) Moreover, the gang evidence introduced here was nowhere
near as prejudicial as that introduced in Albarran, which included lengthy testimony
about the crimes of appellant’s fellow gang members, their threats to kill police officers,
and references to the Mexican Mafia. (Id. at pp. 227-228.) Thus, Albarran is readily
distinguishable.
       Appellant also relies on People v. Bojorquez (2002) 104 Cal.App.4th 335
(Bojorquez). In Bojorquez, the defendant was charged with robbery and false
imprisonment, with firearm enhancements. The charges arose from an incident that was
not alleged to have been gang-related; the only apparent motive was to acquire the
victim’s jewelry and money. (See id. at pp. 337-340.) On direct examination, the
defendant admitted to being a gang member in the past, but testified that he had ceased
engaging in gang activities several months before the events from which the charges
arose. He called two defense witnesses who corroborated various aspects of his
exculpatory version of the events leading to his arrest. (Id. at p. 340.) In rebuttal, the
prosecution called a police officer to testify as an expert on the local gangs. The officer
described various gangs, enumerated their criminal activities, explained that their “code”
prohibited them from testifying against other gang members, and described their practice
of retaliating violently against people who failed to comply with that code. The jury was
instructed that the evidence regarding gangs could be considered only for the limited
purpose of showing bias on the part of the witnesses. (Id. at pp. 340-342.)
       On appeal, the court held the trial court did not abuse its discretion in allowing the
police officer to testify that the defendant had, in the past, admitted to him that he was in
the same gang as one of the defense witnesses. This evidence impeached the defendant’s
testimony and that of the witness, and was not unduly prejudicial in light of the other
evidence of their joint gang membership. (Bojorquez, supra, 104 Cal.App.4th at pp. 342-
343.) The court went on to hold, however, that the evidence regarding the ethnic


                                              14
composition, criminal activities, and violent witness intimidation practices of the local
gangs should have been excluded under Evidence Code section 352, as its “probative
value . . . was minimal, if not nonexistent” (id. at p. 343), and its “prejudicial tendency
. . . [was] plain, and significant” (id. at p. 344), particularly in that the police officer
testified that gang members habitually engaged in robbery, the very crime with which the
defendant was charged. (Id. at pp. 343-345.)
       Bojorquez, supra, 104 Cal.App.4th 335 is distinguishable on its facts. The
prosecution in Bojorquez did not allege that the underlying crime with which the
defendant was charged was gang-related or gang-motivated, and there was no evidence
that it was. The only purpose for which the evidence was admissible, therefore, was to
impeach the defendant and his defense witness. The police officer’s testimony regarding
the reprehensible criminal activities of local gang members was therefore both irrelevant
to that purpose and highly prejudicial. Here, on the other hand, the prosecution did seek
to prove that gang rivalry, as well as appellant’s desire for credibility within his gang,
provided the motive for appellant’s otherwise inexplicable action of shooting and killing
two men who were sitting in a parked car.
       In the present case, the only specific piece of gang-related evidence that appellant
identifies as having been particularly prejudicial was appellant’s “Party in the Jetz” rap
video. Appellant contends its admission was particularly prejudicial in the absence of
any explanation of “[t]he exaggerated nature of this genre of music.” We find it unlikely
that a jury composed of Alameda County residents in the year 2012 would be so
unfamiliar with the “gangsta rap” genre as to take the video’s lyrics at face value, as
appellant contends they may have done. To the extent appellant is contending that a
limiting instruction should have given specifically regarding the video, or that he should
have been permitted to present evidence explaining it in its cultural context, he has
forfeited those contentions by failing to assert them at trial. (People v. Chism (2014) 58
Cal.4th 1266, 1292-1293.)
       In any event, appellant has not borne his burden of establishing that he was
prejudiced by the admission of the video, either standing alone or when considered with


                                                15
the other properly admitted evidence. Appellant’s briefs on appeal attempt to portray the
case as a close one, with the only direct evidence that appellant was the shooter being
McQuirter’s testimony identifying appellant solely by his unusual walking gait. In so
doing, appellant ignores the evidence of his text messages and posts on social media in
which he admitted killing Jackson and Hampton,9 as well as the GPS evidence showing
appellant was at the scene at the relevant time; the presence of his fingerprints on the
victims’ car; and the video showing him wearing Jackson’s medallion after the murders.
Given this evidence, it is clear beyond a reasonable doubt that a rational jury would have
convicted appellant even if the “Party in the Jetz” video had not been admitted.10
                     B. Trial Counsel’s Agreement to Gang Stipulation
       While contending that his conviction should be reversed due to the admission of
excessive gang-related evidence, appellant at the same time complains that his trial
counsel rendered ineffective assistance by agreeing to enter into the gang stipulation.
“To establish entitlement to relief for ineffective assistance of counsel the burden is on
the defendant to show (1) trial counsel failed to act in the manner to be expected of
reasonably competent attorneys acting as diligent advocates and (2) it is reasonably
probable that a more favorable determination would have resulted in the absence of
counsel’s failings. [Citations.]” (People v. Lewis (1990) 50 Cal.3d 262, 288.) Where the
record affirmatively discloses a reasonable tactical basis for a decision made by a
criminal defendant’s trial counsel, we defer to that decision, and apply a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. (People v. Stanley (2006) 39 Cal.4th 913, 954.)
       Here, it is evident from the record that appellant’s trial counsel agreed to the gang
stipulation in order to obviate the need for the prosecution to present the testimony of a
       9
            As explained post, we conclude this evidence was properly admitted.
       10
          Appellant contends that the admission of the gang evidence violated his due
process rights, and that the applicable test for harmless error is therefore that established
in Chapman v. California (1967) 386 U.S. 18, rather than the more lenient standard under
People v. Watson (1956) 46 Cal.2d 818. Because we find the error harmless even under
the Chapman standard, we need not and do not decide which standard applies.


                                             16
police gang expert—testimony that in all likelihood would only have added to the
quantum of evidence regarding the nature and activities of appellant’s gang. The very
same cases appellant cites in support of his excessive gang evidence argument provide
vivid examples of the damaging nature of gang expert testimony. (See, e.g., Albarran,
supra, 149 Cal.App.4th at pp. 227-228; Bojorquez, supra, 104 Cal.App.4th at pp. 340-
341.) By comparison, the content of the gang stipulation to which appellant’s counsel
agreed was relatively benign, and likely to have made a less vivid impression on the jury
than the same facts presented in the form of expert testimony. Moreover, by agreeing to
have the background facts about appellant’s gang introduced in the form of a stipulation
rather than through testimony, appellant’s trial counsel was in a better position to
influence the wording and scope of that information. Accordingly, we are not persuaded
that counsel’s tactical decision to agree to the stipulation constituted ineffective
assistance of counsel.
       For much the same reasons, we also conclude that even if trial counsel had
rendered ineffective assistance in agreeing to the gang stipulation, appellant has not
demonstrated that he was thereby prejudiced. In arguing ineffective assistance of
counsel, a “defendant must affirmatively demonstrate prejudice; it is not sufficient for the
defendant to show the error had some ‘ “conceivable effect” ’ on the outcome of the
proceeding. [Citation.]” (People v. Upsher (2007) 155 Cal.App.4th 1311, 1325, citing
People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) Here, had trial counsel not entered
into the gang stipulation, the jury would have been exposed to even more evidence about
appellant’s gang and its activities than the facts included in the stipulation; moreover, that
evidence would have been introduced in the more salient and memorable form of expert
testimony by a police officer. Appellant therefore cannot show any reasonable likelihood
that the outcome of his trial would have been more favorable had his trial counsel not
agreed to the gang stipulation.
                      C. Admission of Excessive Jail Call Evidence
       As already noted, prior to appellant’s trial, the prosecution sought to introduce
tape recordings and transcripts of numerous telephone calls that appellant made while in


                                              17
jail awaiting trial (the jail call evidence). Appellant’s trial counsel objected to the
admission of the jail call evidence under Evidence Code section 352 on the ground that it
was more prejudicial than probative. The trial court reviewed the recordings at length, in
the presence of both counsel, and solicited counsel’s comments on their probative import
and potential prejudicial effect. At the end of this process, the trial court excluded a
portion of the jail call evidence, but concluded that much of it—approximately four hours
of tape recordings, and the corresponding transcripts—was relevant to show
consciousness of guilt, repeated efforts to arrange for the intimidation of witnesses
(particularly Manning and Evans), and admissions concerning the murder weapon.
Additional portions of the calls were held admissible to provide context for the relevant
portions. The trial judge expressly found that the probative value of the admitted
portions of the jail call evidence outweighed their prejudicial effect.
       Appellant contends that the trial judge erred in permitting the prosecution to
introduce an excessive amount of jail call evidence, and that the error violated his right to
due process and a fair trial.11 He acknowledges that evidence a defendant made threats
against a witness is admissible as relevant to the witness’s credibility. (See People v.
Mendoza (2011) 52 Cal.4th 1056, 1084; People v. Burgener (2003) 29 Cal.4th 833, 869.)
He contends, however, that the trial court erred in admitting far more evidence than was
necessary to establish appellant’s intimidation efforts. He also contends it was error to
admit the portions of the jail call evidence that implicated appellant in other uncharged
crimes and bad acts, such as fighting while in jail, tax fraud, and brandishing a firearm.



       11
           On appeal, respondent expressly concedes that appellant’s trial counsel’s
objection was sufficient to preserve appellant’s right to argue that the trial court erred in
determining that the jail call evidence was more probative than prejudicial. We note also
that an objection to the admission of evidence based on Evidence Code section 352 is
sufficient to preserve for appeal a defendant’s argument that the admission of the same
evidence resulted in error so serious as to violate the defendant’s due process rights.
(People v. Partida (2005) 37 Cal.4th 428, 433-439.) We will assume, for purposes of this
appeal, that appellant’s trial counsel also preserved appellant’s objections to the portions
of the jail call evidence that implicated appellant in uncharged bad acts.


                                              18
       As already noted, ante, we generally review a trial court’s rulings on objections
based on Evidence Code section 352 for abuse of discretion. (People v. Thomas, supra,
53 Cal.4th at p. 806.) Given that standard of review, we are not persuaded by appellant’s
arguments. The record makes clear that the trial court engaged in precisely the weighing
and balancing process contemplated by Evidence Code section 352 before deciding
which portions of the jail call evidence to admit. The sheer number of jail calls during
which appellant discussed witness intimidation was relevant to show the persistence and
determination with which appellant sought to intimidate witnesses, and thus was relevant
to the strength of the impact of appellant’s efforts on the target witnesses’ testimony.
Other portions of the calls demonstrated appellant’s strong loyalty to his gang, and his
willingness to engage in physical attacks on members of rival gangs—facts that were
clearly relevant to establishing appellant’s motive for the charged murders. Other
portions of the jail call evidence were relevant to authenticate appellant as the author of
the evidence drawn from electronic communications and posts on social media. For all
of these reasons, we are not persuaded that the trial judge abused his discretion in
admitting the jail call evidence, either with respect to any of the individual calls or with
respect to the overall quantity of this evidence.
       D. Failure to Object to Inadequately Authenticated Electronic Evidence
                                     1. Background
       The prosecution’s evidence included the following items derived from electronic
messages or material posted on social media: (1) Manning’s email transcribing and
compiling text messages Manning received from appellant after the murders (the text
message email); (2) material posted on a Facebook account maintained under the name
“Airitout Gasteam” (the Facebook posts); and (3) photographs posted on the photo




                                              19
sharing site Photo Bucket, in an account belonging to appellant (the Photo Bucket
photographs).12
                                       2. Analysis
       “Authentication of a writing means (a) the introduction of evidence sufficient to
sustain a finding that it is the writing that the proponent of the evidence claims it is or
(b) the establishment of such facts by any other means provided by law.” (Evid. Code,
§ 1400.) “ ‘As long as the evidence would support a finding of authenticity, the writing
is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to
the document’s weight as evidence, not its admissibility.’ [Citation.]” (People v. Sarpas
(2014) 225 Cal.App.4th 1539, 1571.)
       With regard to the text message email, Manning, appellant’s former girlfriend,
testified at appellant’s preliminary hearing regarding its genesis. She explained that she
spoke with appellant on the telephone while he was in Seattle; he told her he would text
her shortly; and she soon received electronic messages from an account that she knew
belonged to appellant. She copied and pasted her text message conversation with
appellant into an email, without altering the contents of the messages. She identified the
printout of this email as an accurate representation of the message exchange.
       Manning’s personal participation in the text message exchange and in the creation
of the text message email, together with her knowledge of appellant’s social media
accounts and the circumstances surrounding the text message exchange, permitted the
prosecution to lay a sufficient foundation for the authenticity of the text message email
through Manning’s testimony. In our view, this constitutes an adequate foundation for
the introduction of the text message email into evidence—subject, of course, to



       12
           The prosecution also introduced two videos posted on YouTube: (a) the “Party
in the Jetz” rap video, and (b) a video showing appellant in Seattle wearing a distinctive
medallion that belonged to Jackson and which could not be located after his death (the
Seattle video). Appellant’s opening brief does not question his trial counsel’s failure to
object to the authenticity or admissibility of the Seattle video, or to the authenticity of the
“Party in the Jetz” rap video.


                                              20
appellant’s right to cross-examine Manning regarding her account of how the document
was generated, or to introduce other evidence casting doubt on its veracity.13
       Based on Manning’s testimony at the preliminary hearing, appellant’s trial counsel
was aware that the prosecution had sufficient evidence to authenticate the text message
email. It is clear from the record that trial counsel relied on this fact in arriving at a
tactical decision not to put the prosecution to its proof. That tactical decision did not
constitute ineffective assistance of counsel. (Cf. People v. Diaz (1992) 3 Cal.4th 495,
559-560 [failure to object to introduction of evidence on chain of custody grounds did not
constitute ineffective assistance of counsel where prosecution would have been able to
establish chain of custody if required to do so].) Appellant’s trial counsel’s tactical
decision not to object on authenticity grounds to the admission of the text message email
therefore was not ineffective assistance of counsel.
       The Facebook posts were authenticated at trial by a stipulation that Dorgan
McDade, a relative of Hampton’s, if called as a witness, would testify that he printed the
pages out from a Facebook account belonging to appellant under the name Airitout Gas
Team. Similarly, the Photo Bucket photographs were authenticated by a stipulation that a
prosecution investigator downloaded them on a certain date from an account on the
Photobucket.com website maintained by someone using the name “GasTeamNick.” Both
of these stipulations were based on extensive information provided in the prosecutor’s in
limine motion regarding the origin and authenticity of these documents, including
statements appellant made in his telephone calls from jail that tended to show the material
was genuine. For the reasons articulated above with respect to the text message email,
we are not persuaded that appellant’s trial counsel’s rendered ineffective assistance in




       13
          Appellant argues that the text messages could have originated from someone
other than appellant, or that Manning could have changed their content when she copied
them into the text message email. Manning testified that neither of these things occurred,
however. The record reflects that appellant’s trial counsel attempted to find an expert
who could cast doubt on this testimony, but apparently was unable to do so.


                                               21
making a tactical decision not to require the prosecution to present its authenticating
information to the jury.
             E. Trial Counsel’s Failure to Object to Improper Argument
       During his closing argument, appellant’s trial counsel argued at length that
Evans’s testimony about appellant being the shooter was untrustworthy for a number of
reasons. After questioning how Evans could have seen what he claimed to have seen
from the location where he claimed to have been, counsel remarked that Evans was “as
likely a shooter in this case as anybody else,” and suggested that Evans told the police he
saw appellant shoot the victims in order to deflect suspicion from himself. Later in his
closing argument, appellant’s counsel suggested it would also be reasonable for the jury
to believe the shooter was Dionte “Birdman” Houff, a member of appellant’s gang whose
fingerprints, like those of appellant, were found on the victims’ car. As an explanation of
why appellant lied to the police about his whereabouts at the time of the shooting, trial
counsel offered the possibility that appellant did not want to be asked to identify the
shooter.
       In rebuttal, the prosecutor professed surprise at appellant’s suggestion that Evans
was the shooter, particularly when appellant had stated during one of the jail calls that
Evans “ain’t have nothing to do with it.” The prosecutor questioned how appellant could
know Evans had nothing to do with the killings unless appellant himself was the shooter.
He added, “But I guess [Evans] is now the shooter, and/or possibly Dionte Houff , he was
the shooter, and apparently [appellant] just doesn’t want to tell you.” (Italics added.)
       Appellant’s trial counsel did not object to this line of argument. Appellant now
contends this omission constituted ineffective assistance of counsel, because the
prosecutor’s assertion that “[appellant] just doesn’t want to tell you” the real identity of
the shooter constituted an improper comment on appellant’s exercise of his Fifth
Amendment right not to testify. (See Griffin v. California (1965) 380 U.S. 609.)
       Respondent counters that (1) because the record is silent as to trial counsel’s
reasons for not objecting, the ineffective assistance claim is not cognizable on direct
appeal; (2) the prosecutor’s brief remark constituted a proper comment on the state of the


                                              22
evidence rather than an improper comment on appellant’s decision not to testify, and thus
any objection would have been futile; and (3) appellant has not borne his burden of
showing prejudice from his trial counsel’s failure to object.
       Respondent’s first argument is persuasive, so we need not and do not reach the
others. Where a criminal defendant’s trial counsel may have had a reasonable tactical
basis to refrain from making an objection, and the record on appeal is silent on the issue,
a claim that the decision constituted ineffective assistance of counsel is not cognizable on
direct appeal. Our Supreme Court has “repeatedly stressed ‘that “[if] the record on
appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]
. . . unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,” the claim on appeal must be rejected.’
[Citations.] A claim of ineffective assistance in such a case is more appropriately
decided in a habeas corpus proceeding. [Citations.]”. (People v. Mendoza Tello (1997)
15 Cal.4th 264, 266-267.) “ ‘Because we accord great deference to trial counsel’s tactical
decisions, counsel’s failure to object rarely provides a basis for finding incompetence of
counsel.’ [Citation.] Such claims must be rejected on direct appeal if the record does not
affirmatively show why counsel failed to object and the circumstances suggest counsel
could have had a valid tactical reason for not objecting. [Citation.]” (People v. Jones
(2009) 178 Cal.App.4th 853, 860.)
       Here, the prosecutor’s assertedly improper argument took the form of a brief,
passing remark. Thus, it would have been reasonable for appellant’s trial counsel to
conclude that objecting to it would only backfire, by drawing the jury’s attention to it.
Moreover, the prosecutor’s remark was not entirely prejudicial in its effect; it alluded
obliquely to appellant’s failure to testify, but it also reminded the jury of appellant’s
counsel’s argument that there were at least two other people who could have committed
the murders. This presents an additional possible tactical reason for counsel’s decision to
let the remark pass.
       In short, on the record before us, we cannot eliminate the probability that
appellant’s trial counsel had valid tactical reasons for not objecting. Accordingly,


                                              23
appellant’s ineffective assistance claim is not cognizable on direct appeal. As we have
also concluded that the trial court did not commit any reversible evidentiary error, we
also reject appellant’s contention that the cumulative effect of the errors at his trial
deprived him of due process and a fair trial under the California and federal constitutions.
                               F. Unconstitutional Sentence
                                     1. Background
       The trial court sentenced appellant to a total term of 100 years to life, consisting of
four consecutive terms of 25 years to life. Respondent concedes that this is the functional
equivalent of life in prison without parole, because it means appellant would not even
become eligible to be considered for parole until he reached the age of 118. (Cf. People
v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero) [sentence with parole eligibility date
outside juvenile offender’s natural life expectancy deprives offender of “meaningful
opportunity to demonstrate . . . rehabilitation and fitness to reenter society in the future,”
and thus violates Eighth Amendment when imposed for non-homicide offense].) We will
refer to a sentence that is the functional equivalent of life in prison without parole as a
de facto LWOP sentence.14
       Appellant argues that because he was a juvenile at the time of the murders and he
received a de facto LWOP sentence, his sentence is unconstitutional under Miller v.
Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller), which held that “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without possibility
of parole for juvenile offenders,” including those who commit homicides. (Id. at p. ___
[132 S.Ct. at p. 2469].) As appellant acknowledges, Miller does not hold that life without




       14
           We accept respondent’s concession that appellant’s sentence is a de facto
LWOP. Thus, we need not consider appellant’s exact life expectancy in order to address
this issue. On July 3, 2013, we granted appellant’s request for judicial notice of a
government vital statistics report bearing on appellant’s life expectancy, but without
determining its relevance. Given respondent’s concession, the document is not material
to the issues presented by this appeal.


                                              24
parole (LWOP) sentences can never be imposed on juvenile homicide offenders.15
Nonetheless, Miller does hold that under the Eighth Amendment, such sentences must be
discretionary, and may be imposed only if the sentencing court, after considering all the
relevant information,16 determines that the case involves one of the “ ‘rare juvenile
offender[s] whose crime reflects irreparable corruption.’ [Citations.]” (Ibid.)
       Since June 2012, when the United States Supreme Court decided Miller, supra,
567 U.S. ___ [132 S.Ct. 2455], the California appellate courts have relied on Miller on a
number of occasions in reversing de facto LWOP sentences imposed on juvenile
offenders. For example, in People v. Argeta (2012) 210 Cal.App.4th 1478, the court held
that the Eighth Amendment precluded sentencing a defendant convicted on an aiding and
abetting theory of committing murder at the age of 15 to an aggregate minimum sentence
of 100 years, which was concededly a de facto LWOP. In People v. Lewis (2013) 222
Cal.App.4th 108, Division Five of this court held that a prison sentence totaling 115 years
to life for two rapes and a murder was a de facto LWOP, and the juvenile defendant
therefore had to be resentenced in light of Miller. The court directed the trial court to
impose a sentence that would result in a parole eligibility date within the defendant’s
expected lifetime, unless the trial court found that the defendant’s “offenses reflect[ed]
his irreparable corruption within the meaning of Miller [citation].” (Id. at pp. 117-123.)
       Most recently, after the completion of briefing in the present case, our Supreme
Court held that in order to pass constitutional muster, the California statute regarding the
penalty for special circumstances murder committed by a 16- or 17-year-old (§ 190.5,

       15
          Previously, in Graham v. Florida (2010) 560 U.S. 48, the Supreme Court held
that the Eighth Amendment categorically precludes the imposition of an LWOP sentence
on a juvenile who commits any crime other than homicide.
       16
           The Miller opinion sets forth a list of factors related to the age of a juvenile
offender that the trial court must consider before imposing an LWOP sentence, including
“immaturity, impetuosity, and failure to appreciate risks and consequences”; whether “the
family and home environment that surrounds” the juvenile is “brutal and dysfunctional”;
“the way familial and peer pressures may have affected” the juvenile; and “the possibility
of rehabilitation.” (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2468].) We will
refer to these characteristics as the Miller factors.


                                             25
subd. (b) (§ 190.5(b)) must be construed to permit the sentencing judge to impose either
LWOP or 25 years to life, in the court’s discretion, without any presumption in favor of
an LWOP sentence. (People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez).) After the
California Supreme Court issued its opinion in Gutierrez, we requested and received
letter briefs from both parties regarding the implications of the opinion for the issues
presented by this appeal.
       Gutierrez directly addressed one issue presented by this appeal. The Supreme
Court held that the requirement that trial courts conduct an individualized inquiry into the
Miller factors before imposing an LWOP sentence on a juvenile offender is not obviated
by a recently enacted statute (§ 1170, subd. (d)(2)) that permits a person serving an
LWOP sentence for a crime committed as a juvenile to petition for resentencing after
serving at least 15 years. (Gutierrez, supra, 58 Cal.4th at p. 1387.) In light of this aspect
of the Gutierrez court’s analysis, respondent’s post-Gutierrez letter brief has withdrawn
respondent’s earlier argument that appellant’s challenge to his sentence is mooted by
section 1170, subdivision (d)(2). We appreciate and accept this concession.
       Gutierrez, supra, 58 Cal.4th 1354, involved juvenile offenders expressly
sentenced to LWOP for special circumstances murder under section 190.5(b). The
present case is arguably distinguishable, in that appellant received a de facto LWOP
sentence rather than an express one. Our Supreme Court currently has pending before it a
pair of cases presenting (among other issues) the question whether it violates the Eighth
Amendment for a trial court to sentence a juvenile homicide defendant to a de facto
LWOP without first considering the Miller factors. (In re Alatriste, review granted
Feb. 19, 2014, S214652; In re Bonilla, review granted Feb. 19, 2014, S214960.)
       Here, respondent’s brief cites Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at
p. 2469], and Caballero, supra, 55 Cal.4th at pages 268-269, for the proposition that
“there is no per se bar on sentencing juvenile murderers to [de facto LWOP], so long as
the sentencing scheme does not mandate LWOP and the trial court considers mitigating
factors related to the defendant’s age.” (Original italics omitted; italics added.) This
summary of the law appears to acknowledge that Miller does indeed bar a trial court from


                                             26
sentencing a juvenile homicide defendant to a de facto LWOP without considering the
Miller factors. We agree, and in light of respondent’s apparent concession on the point,
we need not await the California Supreme Court’s definitive resolution of this issue in
order to adjudicate this appeal.
       While respondent does not argue that a de facto LWOP sentence for juvenile
homicide is constitutional even if the trial court fails to consider the Miller factors,
respondent does offer two alternative arguments for rejecting appellant’s challenge to his
sentence in the present case. First, respondent argues that the claim was forfeited by the
failure of appellant’s trial counsel to object to the sentence on these grounds at the time it
was imposed. Second, respondent argues that there is no need for a remand, because the
law presumes, and the record reflects, that the trial court was aware of the scope of its
discretion in sentencing appellant; considered all the Miller factors; and did not abuse its
discretion.
                                       2. Forfeiture
       Unlike the defendants in Gutierrez, supra, 58 Cal.4th 1354, appellant was
sentenced several weeks after the opinions had issued in both Miller, supra, 567 U.S. ___
[132 S.Ct. 2455], and Caballero, supra, 55 Cal.4th 262. Respondent argues that
appellant’s trial counsel therefore should have known about these cases, and should have
objected to appellant’s sentence on the constitutional grounds appellant now puts
forward. Because no such objection was made, respondent contends appellant has
forfeited his right to challenge his sentence. Appellant counters that if the objection was
forfeited, then he received ineffective assistance of counsel.
       We have discretion to resolve the issue on the merits despite appellant’s failure to
object to his sentence in the trial court. (People v. Williams (1998) 17 Cal.4th 148, 161-
162, fn. 6 [except as to admission or exclusion of evidence, appellate courts are generally
not prohibited from reaching a question that has not been preserved for review by a
party]; In re Travis J. (2013) 222 Cal.App.4th 187, 194-195; see generally In re
Sheena K. (2007) 40 Cal.4th 875, 880-889.) In light of the evolving state of the relevant
law; the constitutional dimensions of appellant’s challenge to his sentence; and the


                                              27
likelihood of a future ineffective assistance of counsel claim if we were to deem the issue
forfeited, we conclude it is appropriate for us to reach the merits of this issue despite
appellant’s trial counsel’s failure to raise it below.
                      3. Constitutionality of Appellant’s Sentence
       In Gutierrez, supra, 58 Cal.4th 1354, the California Supreme Court held that
“Miller requires sentencing courts to undertake a careful individualized inquiry before
imposing life without parole on juvenile homicide offenders. [Citation.]” (Id. at p. 1382,
italics added, citing Miller, supra, 567 U.S. at pp. ___-___ [132 S.Ct. at pp. 2468-2469].)
As the Gutierrez court reasoned, “it is doubtful that the potential to recall a[n] [LWOP]
sentence based on a future demonstration of rehabilitation can make such a sentence any
more valid than when it was imposed.” (Gutierrez, supra, 8 Cal.4th at pp. 1386-1387.)
Rather, the court interpreted Miller as requiring that “the sentencing authority must
address th[e] risk of error [in a judgment of incorrigibility] by considering how children
are different and how those differences counsel against a sentence of life without parole
‘before imposing a particular penalty.’ [Citation.]” (Id. at p. 1387, italics added by
Gutierrez.)
       This interpretation is reflected in the Supreme Court’s discussion regarding the
proper disposition of the two cases involved in Gutierrez, supra, 58 Cal.4th 1354. The
court held that even though the trial courts in those cases “understood [they] had a degree
of discretion in sentencing,” their sentencing decisions were not made “with awareness of
the full scope of discretion conferred by section 190.5(b) or with the guidance set forth in
Miller and [Gutierrez] for the proper exercise of [their] discretion.” (Gutierrez, supra, 58
Cal.4th at pp. 1390-1391.) Because “the records [did] not ‘clearly indicate[]’ that [the
trial courts] would have imposed the same sentence had they been aware of the full scope
of their discretion,” the Supreme Court remanded both cases for resentencing. (Id. at
p. 1391.)
       In the present case, respondent argues, both in its respondent’s brief and in its
post-Gutierrez letter brief, that such a remand is not necessary, because appellant was
sentenced after the opinions had issued in both Miller, supra, 567 U.S. ___ [132 S.Ct.


                                               28
2455], and Caballero, supra, 55 Cal.4th 262. Thus, respondent contends, the trial court
here may be presumed to have understood both the scope of its sentencing discretion and
its obligation to consider the Miller factors in determining how to exercise that discretion.
       It is true, as respondent points out, that the trial judge stated at the outset of the
sentencing hearing that he had “read and considered the probation report.” It is also true
that the probation report included a discussion of some facts pertinent to the Miller
factors. For example, the probation report disclosed that appellant’s father died while
incarcerated when appellant was about seven years old, and appellant never had a
relationship with him. The report also indicated that appellant stopped attending school
after ninth grade, and was, by his own account, “a very slow learner.” In addition,
appellant reportedly admitted using marijuana on a daily basis since the age of 15.
       However, these facts were not given any particular prominence in the probation
report, and were not expressly identified as facts that could militate against a de facto
LWOP sentence under Miller. Nor did the probation report address all of the potentially
applicable Miller factors. The prosecutor’s pre-investigation memorandum to the
probation department, which was included in the probation report, also did not mention
either Miller, supra, 567 U.S. ___ [132 S.Ct. 2455], and Caballero, supra, 55 Cal.4th
262, or indicate that there might be any legal obstacle to imposing the recommended
sentence of 100 years to life. Thus, in our view, the trial judge’s general statement that
he had read and considered the probation report is not sufficient, in and of itself, to
establish that he had conducted the requisite analysis of the Miller factors.
       Respondent cites People v. Gutierrez (2009) 174 Cal.App.4th 515, in support of
the argument that no remand is required here. In that case, the defendant argued that
because the felony of which he was convicted (battery on a custodial officer) was also
defined as a misdemeanor in another statute, the trial court had discretion to sentence him
as if he had been convicted of the misdemeanor. The Court of Appeal concluded that
even if the trial court in fact had such discretion—an issue it declined to reach—the
defendant was not entitled to relief. The court reasoned that “in light of the presumption
on a silent record that the trial court is aware of the applicable law, including statutory


                                               29
discretion at sentencing, we cannot presume error where the record does not establish on
its face that the trial court misunderstood the scope of that discretion. [Citations.]” (Id.
at p. 527.) The court went on to note that the trial court had found no mitigating
circumstances and five aggravating circumstances, and had stressed the defendant’s poor
performance on probation and parole, and extended history of violence. Thus, the court
found it clear from the record that even if the trial court had discretion to impose a
misdemeanor sentence, and was aware of that discretion, it would not have exercised it in
the defendant’s favor. (Ibid.)
       People v. Gutierrez, supra, 174 Cal.App.4th 515, does not persuade us that no
remand is necessary here. In that case, the record was silent regarding whether the trial
court understood the scope of its discretion, but there was ample evidence to support the
conclusion that an affirmative exercise of the court’s discretion would have led to the
same result. The present case involves not merely a possible failure to advert to and
exercise discretion, but the failure to undertake a constitutionally mandated analysis of
the individual defendant’s situation. Moreover, not only is there no evidence that the
trial judge was aware of his constitutional obligations under Miller, supra, 567 U.S. ___
[132 S.Ct. 2455], and Caballero, supra, 55 Cal.4th 262, but there is also no evidence
indicating whether or not the judge would have imposed a de facto LWOP sentence had
he undertaken the required analysis.
       As we have already noted, ante, the relevant law was in the process of evolving at
the time appellant was sentenced, and has continued to do so since then. The
applicability of the Miller factors to de facto (as opposed to express) LWOP sentences for
juvenile offenders had only been settled law for about a month at the time appellant was
sentenced. (See Caballero, supra, 55 Cal.4th 262.) In addition, it was only after
appellant’s sentencing that our Supreme Court interpreted the federal Constitution to
preclude the application to juveniles of a presumption in favor of an LWOP sentence,
even if rebuttable. (Gutierrez, supra, 58 Cal.4th 1354.) And, as previously mentioned,
some issues relating to juvenile LWOP sentences are still awaiting further elaboration by
the California Supreme Court. (In re Alatriste, supra; In re Bonilla, supra.) In our view,


                                             30
this situation distinguishes People v. Gutierrez, supra, 174 Cal.App.4th 515, as well as
the other cases relied upon by respondent for the proposition that the trial judge here
should be presumed to have considered the Miller factors and exercised his discretion
accordingly. (See also Gutierrez, supra, 58 Cal.4th at p. 1391 [remanding for
resentencing because record did not clearly indicate that sentencing courts would have
imposed same sentences if aware of full scope of their discretion].)
       In short, whether due to the unsettled state of the law or to the failure of either
counsel to direct the trial judge’s attention to the issue, the record does not reflect any
recognition or acknowledgment by the trial judge of his obligation under Miller not to
impose a de facto LWOP sentence without making an express finding that appellant was
one of the “ ‘rare juvenile offender[s] whose crime reflects irreparable corruption.’
[Citations.]” (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2469].) Indeed, the trial
judge did not discuss or even mention the rationale for his sentencing choices.17 For
these reasons, we are not prepared to presume, based on an entirely silent record, that the
trial judge undertook the analysis required by Miller, Caballero, and Gutierrez. As those
cases (particularly Gutierrez) make clear, that analysis must occur at the time of
sentencing; the possibility that the defendant may be able to obtain an earlier parole
hearing date in the future is not an adequate substitute. (Gutierrez, supra, 58 Cal.4th at
pp. 1384-1387.) Accordingly, we conclude that appellant must be resentenced.




       17
          During his pronouncement of sentence, the trial judge stated that appellant’s
sentence for Hampton’s killing “has to be served consecutively” to his sentence for
Jackson’s killing. Appellant argues this indicates the trial judge did not believe he had
any discretion to exercise regarding whether to make appellant’s sentences concurrent or
consecutive. We are not persuaded by this argument; the quoted phrase is ambiguous,
and could have been the judge’s way of announcing that he had chosen to impose
consecutive sentences. Nonetheless, nothing in the record indicates that the judge
considered the Miller factors before making that choice.


                                              31
                                           IV.
                                     DISPOSITION
       Appellant’s conviction is affirmed. With respect to appellant’s sentence only, the
judgment is vacated, and the case is remanded for resentencing in accordance with the
views expressed in this opinion, as they may be clarified or limited by future opinions of
the California Supreme Court in the relevant cases now pending before it.




                                                 _________________________
                                                 RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
HUMES, J.*


* Presiding Justice of the Court of Appeal, First Appellate District, Division One,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                            32
