Filed 5/17/18




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                           )
                                      )
           Plaintiff and Respondent,  )
                                      )                           S239713
           v.                         )
                                      )                     Ct.App. 5 F065807
JESUS MANUEL RODRIGUEZ AND            )
EDGAR OCTAVIO BARAJAS,                )
                                      )                      Stanislaus County
           Defendants and Appellants. )                       Super. Ct. Nos.
                                      )                    1085319 and 1086536
____________________________________)


        Defendants Edgar Octavio Barajas and Jesus Manuel Rodriguez were
convicted in a joint trial of murder, conspiracy to commit murder, and
participation in a criminal street gang. The trial court sentenced each defendant to
mandatory terms amounting to 50 years to life. We granted review to consider
(1) whether the accomplice testimony in this case was sufficiently corroborated in
light of People v. Romero and Self (2015) 62 Cal.4th 1, 36 (Romero and Self), and
(2) whether defendants’ constitutional challenges to their 50-years-to-life
sentences were rendered moot by recent legislation making them eligible for a
youth offender parole hearing during their 25th year of incarceration (Pen. Code,
§§ 3051, 4801), even though their cases were not remanded to the trial court to
determine whether they had an adequate opportunity to make a record of factors
relevant to their eventual parole determinations. (See People v. Franklin (2016)
63 Cal.4th 261, 283–284, 286 (Franklin).)
       With respect to Barajas, the Attorney General concedes that the accomplice
testimony was not sufficiently corroborated and that his convictions must be
reversed. We agree with the Attorney General and therefore reverse Barajas’s
convictions and remand with an order to enter a judgment of acquittal. Rodriguez
raises only the second issue, and we conclude he is entitled to relief. We remand
his case to the Court of Appeal to direct the trial court to provide him with an
opportunity to make a record of information that Penal Code sections 3051 and
4801 deem relevant at a youth offender parole hearing. As in Franklin,
Rodriguez’s constitutional challenge to his 50-years-to-life sentence is moot in
light of the enactment of those statutes and our remand to facilitate proper
discharge of the Board of Parole Hearings’ obligations under those statutes.
                                           I.
       On May 26, 2004, Ernestina Tizoc was killed in a drive-by shooting in
Oregon Park in Modesto. The park was known as a hangout for members of the
Norteño gang. Witnesses saw a white Chevrolet Blazer with broken windows
drive slowly around the park and approach a gazebo where an afterschool program
was being held. Before the shots were fired at Tizoc, the occupants of the Blazer
made gang signs and yelled a cry for a rival gang, the Sureños.
       Officers arrived at the scene and received information that people at a
residence on Thrasher Avenue were involved in the shooting. Officers went to the
location and detained Rodriguez, Barajas, Mario Garcia, and Louis Acosta. At the
time, Rodriguez was 15 years old, and Barajas was 16 years old. At trial, a gang
expert working with the district attorney’s office testified that he believed all of
the arrestees were Sureño gang members. In a subsequent search of the Thrasher
Avenue residence, an officer found mail addressed to Acosta, gang-related
drawings, and two .22-caliber bullets. Later that day, another officer found the
white Blazer in an alley.

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       Garcia, who had been in the Blazer, testified that he, Rodriguez, Barajas,
and two others passed through Oregon Park looking for Norteños, apparently to
retaliate for prior aggressions by the Norteños. Garcia thought some of the people
by the gazebo were Norteños because they were wearing red. He testified that as
the Blazer approached the gazebo, Barajas shouted “puro Sur” and fired multiple
shots. When Barajas stopped shooting, the Blazer sped away. Tizoc was hit by
the gunshots and died from her injuries.
       Rodriguez and Barajas were charged with willful, deliberate, and
premeditated murder, conspiracy to commit murder, and active participation in a
criminal street gang. The information alleged, as to the murder and conspiracy
counts, that at least one principal intentionally and personally used a firearm,
causing great bodily injury or death. The information also alleged that the
offenses were committed for the benefit of a criminal street gang.
       Both defendants entered pleas of not guilty and denied all enhancement
allegations. A jury convicted Barajas and Rodriguez of first degree murder (Pen.
Code, § 187) and found that the crime was committed for the benefit of a criminal
street gang (id., § 186.22, subd. (b)). (All undesignated statutory references are to
the Penal Code.) The jury also found that a principal discharged a firearm causing
death (§ 12022.53, subds. (d), (e)). Defendants were also convicted of conspiracy
to commit murder (§§ 182, 187) and active participation in a criminal street gang
(§ 186.22, subd. (a)). On September 12, 2012, the trial court sentenced each
defendant to an aggregate term of 50 years to life based on a mandatory term of 25
years to life for first degree murder and a mandatory consecutive term of 25 years
to life for the firearm enhancements. The trial court did not expressly consider
any youth-related factors at sentencing.
       Defendants appealed their convictions on grounds of prosecutorial failure
to preserve exculpatory evidence, juror misconduct, insufficient corroboration of

                                           3
accomplice testimony, and instructional error. They also claimed their sentences
of 50 years to life violate the Eighth Amendment to the United States Constitution.
The Court of Appeal affirmed the judgments. We granted review and, after
holding the case, transferred it to the Court of Appeal for reconsideration in light
of Franklin, supra, 63 Cal.4th 261 and Romero & Self, supra, 62 Cal.4th 1. The
Court of Appeal again affirmed the judgments, and we again granted review.
                                          II.
       Barajas claims that the evidence was insufficient to support his convictions
on all three counts because the only evidence connecting him to the crimes was
uncorroborated accomplice testimony. He contends that his convictions should be
reversed and a judgment of acquittal should be entered on all charges. The
Attorney General concedes that the accomplice testimony was insufficiently
corroborated. After reviewing the evidence presented at trial, we agree with the
Attorney General, reverse Barajas’s convictions, and order the entry of a judgment
of acquittal. Rodriguez concedes that the accomplice testimony against him was
sufficiently corroborated.
       Section 1111 states: “A conviction cannot be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to
connect the defendant with the commission of the offense; and the corroboration is
not sufficient if it merely shows the commission of the offense or the
circumstances thereof.” This statute reflects the Legislature’s determination that
“ ‘because of the reliability questions posed by’ ” accomplice testimony, such
testimony “ ‘by itself is insufficient as a matter of law to support a conviction.’ ”
(People v. Najera (2008) 43 Cal.4th 1132, 1137.) “Thus, for the jury to rely on an
accomplice’s testimony about the circumstances of an offense, it must find
evidence that, ‘ “without aid from the accomplice’s testimony, tend[s] to connect
the defendant with the crime.” ’ ” (Romero and Self, supra, 62 Cal.4th at p. 32.)

                                           4
“ ‘The entire conduct of the parties, their relationship, acts, and conduct may be
taken into consideration by the trier of fact in determining the sufficiency of the
corroboration.’ ” (Id., quoting People v. Rissman (1957) 154 Cal.App.2d 265,
278.)
        Barajas contends that the only evidence that specifically implicated him in
the crime was the uncorroborated accomplice testimony of Garcia and Rodriguez.
Barajas is correct: None of the other evidence, including the eyewitness testimony
about the shooting or the physical evidence of the murder weapon and shell
casings fired from the weapon, tended to connect Barajas to the commission of the
crime. The only other evidence against Barajas was that he was a Sureño gang
member, but as the Attorney General explains, “the gang expert’s testimony failed
to personally connect Barajas to the shooting itself, the physical evidence, the
accomplices and victims involved, the vehicle used by the perpetrators, or any
particular location related to the crime such as Oregon Park, [the Thrasher
Avenue] residence, and the areas where physical evidence was found.”
        The Court of Appeal observed that the nonaccomplice evidence did
corroborate aspects of the accomplice testimony offered against Barajas. But that
is not enough. The nonaccomplice evidence must corroborate aspects of the
accomplice testimony that “ ‘ “tend[ed] to connect the defendant with the
crime.” ’ ” (Romero and Self, supra, 62 Cal.4th at p. 32.) Such corroborating
nonaccomplice evidence was absent here. Our review of the record confirms what
the Attorney General recounts in his briefing: “The non-accomplice evidence did
not tend to connect Barajas to the accomplice, his codefendant, or the victims.
Nor did it tend to connect Barajas to the Chevy Blazer used during the shooting,
the murder weapon, or any of the bullets and shall [sic] casings that were
recovered. There was no evidence tending to connect Barajas to Oregon Park,
the . . . Thrasher residence, or any of the locations where relevant evidence was

                                          5
found. There was also no evidence that Barajas had been involved in any of the
prior acts of violence committed by the Norteños against the Sureños that
preceded the charged crimes. And other than fights at school, the evidence did not
show that Barajas had committed acts of violence against Norteños similar to the
shooting at the park. Unlike in [People v. Szeto (1981) 29 Cal.3d 20], there was
no evidence establishing a personal motive or opportunity to commit the charged
crimes. The corroborating evidence that was presented could do no more than
establish the crimes occurred and raise a suspicion against every Sureño gang
member in Stanislaus County.”
       The Attorney General acknowledges that this case is analogous to Romero
and Self. In that case, a jury convicted Self of a robbery based on the testimony of
an accomplice, Munoz, as to the circumstances of the crime. Other than Munoz’s
testimony, there was no other evidence tying Self to the robbery. Although Self’s
codefendant, Romero, used Self’s shotgun during the robbery, there was no
dispute it was Romero, not Self, who held the shotgun. The victim did not testify
to seeing Self. We therefore reversed Self’s conviction as to that robbery.
(Romero and Self, supra, 62 Cal.4th at pp. 35–37.)
       We hold that the accomplice testimony against Barajas was not sufficiently
corroborated and that his convictions must be reversed. Because reversal of his
convictions is based on insufficiency of the evidence, the double jeopardy clauses
of the Fifth Amendment to the United States Constitution and article I, section 15
of the California Constitution mandate that Barajas be acquitted of the charges.
(Monge v. California (1998) 524 U.S. 721, 729 [“We have held that where an
appeals court overturns a conviction on the ground that the prosecution proffered
insufficient evidence of guilt, that finding is comparable to an acquittal, and the
Double Jeopardy Clause precludes a second trial.”]; People v. Seel (2004) 34
Cal.4th 535, 542, citing Monge, 524 U.S. at p. 729 [same rule under the double

                                          6
jeopardy clause of the California Constitution]; People v. Belton (1979) 23 Cal.3d
516, 526–527 [defendant was entitled to judgment of acquittal where
prosecution’s case failed to satisfy section 1111]; People v. Pedroza (2014) 231
Cal.App.4th 635, 660 [trial court’s determination that prosecution’s case failed to
satisfy section 1111 was a finding of insufficient evidence to sustain conviction].)
Accordingly, we remand Barajas’s case to the Court of Appeal to enter a judgment
of acquittal on the charges against him.
                                           III.
       Rodriguez contends that he was not provided an adequate opportunity to
make a record of information relevant to a future youth offender parole hearing
and that he is entitled to a remand under Franklin. As a preliminary matter, the
Attorney General argues that we may not grant Rodriguez relief on this claim
because he did not file a petition for review in this court. Our grant of review gave
us jurisdiction over the cause, including Rodriguez’s claim, and we exercise our
jurisdiction to consider it. (Cal. Const., art. VI, § 12, subd. (b); see Rules of Court,
rule 8.512(b)(1); Advisory Com. com., subd. (b) foll. Rules of Court, rule 8.528.)
We note, however, that while we have authority to consider such claims, we do
not do so as a matter of course; in general, parties are advised to file a petition for
review on claims that may entitle them to relief in this court.
       In Franklin, we held that a juvenile offender’s Eighth Amendment
challenge to his 50-years-to-life sentence was rendered moot by the enactment of
Senate Bill No. 260 (2013–2014 Reg. Sess.) (Senate Bill No. 260), which created
youth offender parole hearings and made Franklin eligible for such a hearing
during his 25th year of incarceration. (Franklin, supra, 63 Cal.4th at p. 280; see
§§ 3051, subd. (b)(3), 4801, subd. (c).) Because the Board of Parole Hearings had
not yet crafted regulations applicable to youth offender parole hearings when we
decided Franklin, we did not opine on “whether and, if so, how existing suitability

                                            7
criteria, parole hearing procedures, or other practices must be revised to conform
to the dictates of applicable statutory and constitutional law.” (Franklin, at
p. 286.) We could not say at that point that the enacted legislation was inadequate
to provide juvenile offenders a meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation “[s]o long as juvenile offenders have an
adequate opportunity to make a record of factors, including youth-related factors,
relevant to the eventual parole determination.” (Ibid.; see id. at p. 283 [“In
directing the Board to ‘give great weight to the diminished culpability of juveniles
as compared to adults, the hallmark features of youth, and any subsequent growth
and increased maturity of the prisoner’ (§ 4801, subd. (c)), the statutes also
contemplate that information regarding the juvenile offender’s characteristics and
circumstances at the time of the offense will be available at a youth offender
parole hearing to facilitate the Board’s consideration.”].) Because Franklin was
sentenced before the passage of Senate Bill No. 260, we remanded the case for the
trial court to determine whether he was afforded sufficient opportunity to make a
record of information relevant to his eventual youth offender parole hearing.
(Franklin, at p. 284.)

       The Court of Appeal, relying on Franklin, held that Rodriguez’s Eighth
Amendment challenge to his sentence was moot in light of his eligibility for a
youth offender parole hearing during his 25th year of incarceration. (§ 3051,
subd. (b)(3).) The Court of Appeal further stated: “Information from the
probation reports prepared for both defendants, the juvenile fitness hearing reports,
their pretrial statements to officers, as well as what was provided at the sentencing
hearings, would all be available for consideration at the youth offender parole
hearing. (§ 3051, subd. (f).) It appears that Barajas and Rodriguez had ‘sufficient
opportunity to put on the record the kinds of information’ deemed relevant to a
youth offender parole hearing, although they are not precluded from submitting

                                          8
additional information for review by the parole board. (People v. Franklin, supra,
63 Cal.4th at pp. 283–284.)” The Court of Appeal thus affirmed the judgment
against Rodriguez without remanding the matter to the trial court.
       Rodriguez, like Franklin, was sentenced before the passage of Senate Bill
No. 260, and he argues that he did not have notice and a sufficient opportunity at
sentencing to make a thorough record of factors relevant to his eventual youth
offender parole hearing. He contends that the record fails to adequately discuss
his level of maturity and character traits at the time of the offense, the impact of
his childhood addiction to methamphetamines, the impact of his frayed
relationship with his family and the physical abuse inflicted on him by his siblings,
his frequent exposure to and victimization by gang violence, and his conduct
during his incarceration and how it relates to his potential for rehabilitation.
       We agree with Rodriguez that he is entitled to remand for an opportunity to
supplement the record with information relevant to his eventual youth offender
parole hearing. Although a defendant sentenced before the enactment of Senate
Bill No. 260 could have introduced such evidence through existing sentencing
procedures, he or she would not have had reason to know that the subsequently
enacted legislation would make such evidence particularly relevant in the parole
process. Without such notice, any opportunity to introduce evidence of youth-
related factors is not adequate in light of the purpose of Senate Bill No. 260. (See
Franklin, supra, 63 Cal.4th at p. 277 [“For those juvenile offenders eligible for
youth offender parole hearings, the provisions of Senate Bill No. 260 are designed
to ensure they will have a meaningful opportunity for release no more than 25
years into their incarceration.”].) On remand, the Court of Appeal shall direct the
trial court to provide Rodriguez and the prosecution an opportunity to supplement
the record with information relevant to Rodriguez’s eventual youth offender parole
hearing. (Franklin, at p. 284.) In so doing, the trial court may exercise its

                                           9
discretion to conduct this process efficiently, ensuring that the information
introduced is relevant, noncumulative, and otherwise in accord with the governing
rules, statutes, and regulations.
       Rodriguez further contends that his Eighth Amendment claim is not moot
because without an adequate opportunity to make a record of youth-related
circumstances at the time of his offenses, his eventual parole hearing will not
provide him with a “meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” (Graham v. Florida (2010) 560 U.S.
48, 75.) Our directive that Rodriguez receive a remand in this proceeding makes it
unnecessary to address this claim. “So long as juvenile offenders have an
adequate opportunity to make a record of factors, including youth-related factors,
relevant to the eventual parole determination, we cannot say at this point that the
broad directives set forth by Senate Bill No. 260 are inadequate to ensure that
juvenile offenders have a realistic and meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.” (Franklin, at p. 286.) We
expressed no view in Franklin, and we need not express any view here, on
whether such a remand is constitutionally required.
                                         IV.
       In his request to file supplemental briefs, Rodriguez argues that Senate Bill
No. 620 (2017–2018 Reg. Sess.), effective January 1, 2018, applies to his case.
That legislation amended section 12022.53, subdivision (h) to read: “The court
may, in the interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required to be imposed by
this section. The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.” Rodriguez contends that
as a consequence of this newly passed legislation, the firearm enhancements
imposed on his sentence pursuant to section 12022.53, subdivisions (d) and (e),

                                         10
should be struck and he should be resentenced accordingly. On remand, the Court
of Appeal shall direct the trial court to consider the applicability of
section 12022.53, subdivision (h) to Rodriguez’s sentence.




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                                  CONCLUSION
       We reverse Barajas’s convictions and remand his case to the Court of
Appeal with instructions to enter a judgment of acquittal. We remand Rodriguez’s
case to the Court of Appeal with instructions to remand to the trial court to provide
the parties with an opportunity to supplement the record with information relevant
to Rodriguez’s youth offender parole hearing and to consider the applicability of
section 12022.53, subdivision (h) to his sentence.


                                                  LIU, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
BLEASE, J.*




*      Associate Justice of the Court of Appeal, Third Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

                                         12
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Rodriguez
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 12/20/16 – 5th Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S239713
Date Filed: May 17, 2018
__________________________________________________________________________________

Court: Superior
County: Stanislaus
Judge: Nancy Ashley

__________________________________________________________________________________

Counsel:

Cara DeVito, under appointment by the Supreme Court, for Defendant and Appellant Jesus Manuel
Rodriguez.

S. Lynne Klein, under appointment by the Supreme Court, for Defendant and Appellant Edgar Octavio
Barajas.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Peter W.
Thompson, Rachelle A. Newcomb and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Cara DeVito
9360 West Flamingo Road
No. 110-492
Las Vegas, NV 89147
(702) 240-9074

S. Lynne Klein
P.O. Box 367
Davis, CA 95617
(530) 753-9401

Darren K. Indermill
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 210-7689
