Filed 10/28/13 P. v. Rosas and Juarez CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B241364

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA379767)
         v.

ALEX ROSAS and
FREDDY JUAREZ,

         Defendants and Appellants.



         APPEALS from judgments of the Superior Court of Los Angeles County. William
C. Ryan, Judge. Reversed as to Rosas; affirmed and remanded with directions as to
Juarez.
         Barbara S. Perry, under appointment by the Court of Appeal, for Defendant and
Appellant Rosas.
         Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant Juarez.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, and Carl N. Henry, Deputy Attorney General, for
Plaintiff and Respondent.
       Defendants Alex Rosas and Freddy Juarez appeal from the judgments entered
following a jury trial in which they were convicted of second degree murder and
attempted murder, with gang and firearm findings. Rosas contends the trial court erred by
admitting two insufficiently redacted recorded statements by Juarez to his friend in jail
and exacerbated the prejudicial effect of that error by giving testifying accomplice
instructions, although Juarez did not testify. Juarez contends insufficient evidence
supports his convictions and his firearm enhancement and sentence are unconstitutional.
We agree that the trial court‘s admission of Juarez‘s recorded statements to his friend
violated Rosas‘s confrontation rights and requires reversal of his convictions. We reject
Juarez‘s challenges to his convictions, but agree that the trial court failed to comply with
applicable constitutional authorities in sentencing Juarez to the functional equivalent of a
life sentence, and accordingly we vacate Juarez‘s sentence and remand for resentencing.
                                     BACKGROUND
       Around midnight on February 20, 2009, Miguel Martinez parked his car on Union
Pacific Avenue between Indiana Street and Hicks Avenue in East Los Angeles.
(Undesignated date references pertain to 2009.) Martinez testified that the two
passengers in his car, Joe Lopez and Guadalupe Ramirez, got out of the car and began
walking toward Indiana Street. Martinez was putting away his car stereo deck and
remained in the car. He and Lopez were members of a tagging crew called the Insane
Tagging Crew, or ITC for short. Ramirez was a member of the Gage Maravilla gang.
Martinez testified they were going to a party near Olympic Boulevard and Indiana Street,
about one block away. He denied they intended to tag, break into cars, or write graffiti in
the area.
       Martinez heard people running past his car, looked up, and saw two men running
in the street, one of whom was holding a gun. He did not see where they had come from.
Martinez honked his car‘s horn to alert Lopez and Ramirez, who began running toward
Indiana Street. The gunman turned and pointed the gun toward Martinez, who ducked
down in his car. The gunman began firing toward Lopez and Ramirez. Martinez started


                                              2
his car and, while still ducked down, began driving toward his companions. His car went
up onto the sidewalk and crashed into a light pole, dislodging his front bumper. He
restarted the car and continued driving. He picked up Lopez and Ramirez at the corner of
Union Pacific and Indiana. Martinez took Lopez to a nearby hospital, where he died from
a gunshot wound to his upper back.
       Martinez testified that he gave the police a general description of the two
assailants: the shooter was about 17, thin, about 5 feet 6 inches or 5 feet 7 inches tall, had
a ―fade‖ haircut, and had brown skin with pimples; the other man was shorter by about an
inch and was Hispanic. Martinez never identified anyone in this case.
       Sheriff‘s department personnel collected eight .40-caliber cartridge casings
between the east and west curbs of the north side of the intersection of Union Pacific and
Hicks. Some of the casings were damaged, as if they had been run over. All had been
ejected by the same gun, a .40-caliber Glock. A bullet was also recovered from the wall
of a building at the northwest corner of Union Pacific and Hicks. It had also been fired
from a .40-caliber Glock. The gun was not recovered. Martinez‘s bumper, complete with
a license plate, was recovered next to a power pole at the southwest corner of Union
Pacific and Hicks. Using the license plate, Detective Michael Valento located Martinez,
who was the only eyewitness to testify. A recording from a surveillance camera at a store
east of Hicks on Union Pacific depicted two people in dark clothing running west on
Union Pacific, followed by Martinez‘s car driving, hitting the power pole, then driving
west down the sidewalk.
       On February 23 Valento noticed graffiti on a four-unit apartment building at 3963
Union Pacific, which was near the northeast corner of the intersection of Hicks and Union
Pacific. The graffiti included ―IDKS,‖ which referred to the Indiana Dukes gang; ―X3,‖
which denoted Hispanic gangs south of Merced; ―YSTER,‖ which Valento and
prosecution gang expert Los Angeles Police Department (LAPD) Officer Jose Vasquez
testified meant ―Youngster‖; ―B.S‖; ―I.T.C.‖; and graffiti signifying the King Kobras and
Eighth Street gangs. No evidence established how long any of the graffiti had been there.


                                              3
       Vasquez opined that at the time of the charged offenses, both Juarez and Rosas
were members of the Indiana Dukes gang. Rosas used Youngster, Risky, and Rascal as
his monikers, while Juarez‘s moniker was Monkey. The location of the charged crimes
was on the eastern border of the territory claimed by the Indiana Dukes gang. The King
Kobras, Eighth Street, and Maravilla gangs were enemies of the Indiana Dukes gang, but
Vasquez knew of a member of the Eighth Street gang who lived in the apartments at 3963
Union Pacific.
       Valento initially had no suspects in the charged crimes, but began to suspect Juarez
and Gerardo Morales after they were arrested for an unrelated robbery in August.
Valento interviewed Juarez and Morales separately on August 30. A recording of
Juarez‘s interview was played at trial. Valento told Juarez he had been identified as the
shooter in the crimes charged in the present case. Juarez denied involvement and
explained he lived in San Bernardino with his mother. Although he came to Los Angeles
on weekends to visit his father and girlfriend, he usually arrived between 1:00 and 3:00
a.m. on Sunday. He further denied that he hung out at 3963 Union Pacific in February,
saying it would have been too dangerous because that was territory claimed by the King
Kobras gang. But he explained he might have been identified because he previously hung
out in that area, and everyone in the area knew him.
       As a ruse, Valento had created a photographic array in which Valento himself had
circled Juarez‘s photograph and signed the array. Valento showed Juarez the ruse array,
covering the signature, and told Juarez that he had been identified with 100 percent
certainty. Juarez reiterated that he used to hang out in the area and added that when he
was younger he had engaged in ―stupid shit‖ in that area, including crossing out King
Kobras graffiti, writing Indiana Dukes graffiti, asking people their gang affiliation, and
even committing an aggravated assault there. Valento also told Juarez that witnesses said
Morales was Juarez‘s accomplice in the charged offenses. Juarez said he had just met
Morales the day they committed a robbery together. Juarez told Valento he used only
small caliber guns and claimed he had not shot anyone since October 24, 2008. Juarez


                                             4
ultimately said he had heard about the shooting in July from a friend named Jessie who
was a member of ITC and had contacted Juarez through MySpace. Jessie told Juarez his
―homey got killed‖ at Union Pacific and Hicks and asked if that was Juarez‘s ―hood.‖
After Juarez said it was the territory of the King Kobras gang, Jessie said his group knew
the perpetrator was someone from King Kobras. But Juarez opined to Valento that the
crime was more likely committed by a rival tagging crew because gangs recruit taggers or
beat them up, but do not kill them. As another ruse, Valento took a saliva swab from
Juarez after telling him that DNA had been collected at the crime scene.
       After he finished interviewing Juarez and Morales, Valento placed them together
in a jail cell that had a concealed recorder. A redacted version of the recording of their
conversation was played at trial and the jurors were given transcripts of the recording in
which blank lines indicated the redactions. Most of their wide-ranging conversation did
not pertain to the charged offenses. With respect to the charged crimes, Juarez asked if
Morales had corroborated his statement to Valento that they had met just before the
robbery. Morales replied that he told Valento they knew each other in middle school, but
that they had not seen each other for four or five years. Juarez asked Morales if Valento
took a sample of his DNA, and Morales said he had not. Morales said, ―[T]hey have you
as a murder, dog, but people are saying that—that I‘m the one that was with you.‖ Juarez
responded, ―You know who it was?‖ Morales asked, ―Who, who was what?‖ Juarez said,
―That fool,‖ followed by unintelligible whispering. Morales then said, ―Oh, yeah, yeah.
Oh.‖ Inaudible whispering followed. Juarez then told him, ―You already know—you—
you know who.‖ Morales asked, ―When they were stealing the cars?‖ Juarez replied,
―Ya,‖ which was followed by ―extended unintelligible whispering,‖ after which Juarez
said, ―I seen those fools from Tiempo. They was from Tiempo, Ave, Avenues.‖ Morales
said, ―Oh, did they say it was you?‖ Juarez replied, ―No, I was, I was around there.‖
More unintelligible whispering ensued, then Juarez said, ―the fools that we was talking
about.‖




                                              5
       After Morales and Juarez spoke further about their robbery charges, they returned
to the subject of the murder, telling one another about their interviews with Valento.
Morales then asked Juarez, ―What did you shoot? What you‘d shoot? Revolver?‖ After
whispering by Morales, Juarez replied, ―I don‘t know.‖ After whispering by Juarez,
Morales asked, ―Glock?‖ and whispered something. Juarez said, ―No,‖ then whispered
something. Morales asked, ―Where‘s the shells? Do you have the‖ followed by
whispering. Juarez then said, ―No, I did, I didn‘t, I didn‘t sho, I didn‘t do shit. I didn‘t
have the piece.‖ This is followed by eight blank, double-spaced lines, after which Juarez
said, ―That DNA shit (unintelligible) don‘t, don‘t come out, I‘m good. But, it does‖
followed by whispering. A little later, Juarez referred to Valento showing him ―a line-up‖
in which he had been identified and recounted to Morales what he had told Valento.
After this, Juarez said, ―He thought he was gonna break me down.‖ Juarez explained to
Morales, ―If you, you know at Union Pacific that‘s all taggers, mother fuckers that goin‘
back there to tag.‖ Morales agreed. Juarez then said, ―But that fool was over there
stealing cars. So I don‘t know. That fool was trying to hit me. I‘m like, what the fuck.
‗Oh, so you don‘t look surprised.‘‖ After Morales remarked that Valento did not take a
sample of his DNA, Juarez responded, ―You don‘t got to worry about shit.‖ Morales said
he had ―better not,‖ then laughed. Juarez continued, ―But me . . . (unintelligible). How is
it . . . .‖ Fourteen blank, double-spaced lines ensued.
       After discussing other people and other crimes, Juarez returned to the topics of the
murder, DNA, and his alibi of being in San Bernardino, then said, ―But you know, my,
but my mom, sometimes she‘s stupid. I gotta, . . . to call her.‖ Juarez referred to ―Jessie‖
―from I.T.C.,‖ then said he (Juarez) had denied an accusation that he did ―it,‖ then said, ―I
think it was one of them fools snitching on me.‖ This was followed by whispering.
Juarez then recounted telling Valento that everyone in that neighborhood knew him and
that he was in San Bernardino at the time of the murder. A little later, Juarez returned to
the topic of DNA, saying, ―But the thing, how, how could they get the DNA from me?
By, by hair?‖ Morales explained it could come from ―[a]ny little thing . . . that‘s outta


                                               6
your body.‖ Juarez began to respond, ―Are you serio? When that shit happened . . . .‖
Morales suggested it might have come from sweat. Juarez said, ―I, I wasn‘t sweating.‖
Morales asked if Juarez left a glove or shirt at the scene. Juarez said, ―I didn‘t,‖ followed
by something unintelligible. He said, ―[I]magine a lil‘ hair dropped.‖ Morales then
asked, ―Showered, everything, no? The piss works fool, but it doesn‘t really work that
good.‖ Valento testified that gang members commonly believe that urinating on their
hands will eliminate gunshot residue. Juarez replied, ―I know. But it had been like, fuck.
Dang. I always thought this shit was done.‖ He continued, ―You—you don‘t get no
murder, ‘cause when they saying they point me out, 100 percent.‖ A little later, Juarez
said, ―Some fool from ITC drop a dime, one of them, I don‘t know who, but . . . .‖ He
also said, ―If this DNA comes back positive . . . .‖ This was followed by 12 blank,
double-spaced lines.
       After that redaction, Morales spoke of how surprised he was when the detective
accused him of being ―‗with [Juarez] for a murder.‘‖ Juarez said, ―I was trippin‘ out too
. . . (unintelligible) . . . what the fuck he got to do with it.‖ Juarez then said, ―So, what
I‘m thinking about, what kind of DNA they got. Like, I think, what I‘m thinking about is,
I didn‘t drop no clothes. Cuz when that shit happened, all I was, I, when the other car, I
was, I went like this, I went walking, then when that fool started, boom, boom, boom,
boom, that‘s when I hit the corner and I started running . . . cheeww . . . I didn‘t touch
nothing. I just ran. But I didn‘t touch nothing, though. They don‘t got fingerprints. Cuz
if they had fingerprints . . . (unintelligible) . . . it is. I‘m already, I‘m already in the system
. . . (unintelligible) . . . I just hope to God, I know I didn‘t do that shit, so, I just hope to
God that shit don‘t come back. Never thought of coming back. (Unintelligible) . . . I‘m
all, ‗Watch me.‘‖ A little later, Juarez said he had been ―hitting people . . .
(unintelligible) . . . I can‘t even go to sleep, cuz, . . . (unintelligible) . . . you know I‘m
like, I smoked this fool and I‘d be like, ‗Fuck.‘ I try to go to sleep and I start thinking
about it, like, fuck that, I‘m not gonna get locked up for that shit.‖ He then said that his
―homie‖ Minor had tried to kill a rival gang member ―right there on Olympic, so now they


                                                 7
got it—the shell and then now they got all the shells from all the other, other crimes and
all of them come back to the same gun. They don‘t got the gun, but all the Sheriffs want
to go talk to Minor in the county. . . . But that gun, in the ghetto, that shit‘s gone. I had
to get rid of that shit, bro. I mean . . . (unintelligible) . . . . Hopefully this DNA comes
back and it‘s negative, I‘m . . . (unintelligible) . . . . Then have my mom say I was in San
Bernardino with her. I‘m done.‖ This was followed by 23 blank, double-spaced lines.
       Following the redaction, Juarez and Morales resumed talking about their
interviews with Valento. Juarez then said, ―It‘s been six months since this shit happened.
February, fuck . . . (unintelligible).‖ Juarez whispered the rest of this statement. Morales
said, ―And I heard about that fool. That fool from ITC stealing cars and somebody lit em
up. They told me it was some fool . . . (unintelligible) . . . forgot who told me.‖ Juarez
responded in an audible whisper: ―Cuz the Tiempos came out . . . (unintelligible) . . . that
was when we jumped up in, ‗What the fuck, stop it, . . . (unintelligible) . . . Tiempo.‘
Pow, pow, pow, pow. It was that day, I don‘t know, I think this fool, cuz when they said
it was a big gun. ‗You like big ones?‘ I‘m like, ‗Nah, I like small ones, 38‘s 22‘s.‘
(Unintelligible) . . . let this fool have it. Then when this fool hit this fool, I didn‘t even
know those fools. I don‘t know, dog. I didn‘t do it. I don‘t have to worry about it.‖ This
was followed by 23 blank, double-spaced lines. After that redaction, Juarez said, ―I
didn‘t think they will put you out in this one. How the fuck they . . . (unintelligible) . . .
picture, mother fucker. I thought he would, they would pull out the homie, Youngster.
I‘m like fuck, cuz he‘s here right now, too. He‘s awaiting, he‘s awaiting to get deported.‖
Morales said that the police would probably bring Youngster in after them, and Juarez
responded, ―Nah, they told me, the guy said that you were there.‖ After an additional
redaction and further conversation, Juarez said, ―We‘re done talking, can we leave?‖
Morales laughed and said, ―We‘re probably gonna . . . (unintelligible) . . . stay quiet for
like an hour, dog.‖
       Valento testified that after he heard Juarez say he thought they would show
Youngster‘s photo, he began investigating the identity of ―Youngster.‖ He ultimately


                                                8
found a photograph of Rosas and determined that Rosas had been in the county jail on
August 30, when Juarez and Morales had their recorded conversation.
       After Juarez and Morales were convicted of robbery and sent to prison, Valento
had them returned to the county jail and reinterviewed each of them on January 29, 2010.
Valento told Juarez that his DNA placed him at the crime scene but established he was
not the shooter. He showed Juarez a fake DNA report to this effect. The report included
a reference to Rosas. Valento testified that Juarez‘s hands trembled when he read the
report. Valento showed Juarez a photograph of Rosas and said the DNA evidence had
implicated Rosas as the shooter. Valento also told Juarez that he did not know where
Rosas was. Valento told Morales that he had been exonerated by the DNA evidence, then
showed Morales a photograph of Rosas and said the DNA evidence had implicated Rosas.
Valento then put Juarez and Morales together on a bench with a recording device hidden
nearby. A redacted version of the recording of their conversation was played at trial and
the jurors were given transcripts of the recording in which blank lines indicated the
redactions.
       Juarez and Morales immediately began talking about their interviews with Valento.
Morales said, ―They have your DNA.‖ Juarez acknowledged, ―They do.‖ Morales
referred to a detective showing him a photo and asking, ―‗Is that fool Youngster?‘‖ A
few lines later, Juarez said, ―They didn‘t have, like they came—they—they can‘t find
Youngster.‖ Juarez and Morales then discussed whether Youngster had fled, with
Juarez‘s statements inaudible. Morales said, ―Yeah, hey, that fool said, ‗It‘s cool, he
looks like you. Everybody‘s tryin‘ to say that he looks like you.‘‖ Juarez replied, ―Oh,
they fucked up right there.‖ Juarez continued, ―Fucked up because they said it was you
first, so whenever they send me to a case, I‘m gonna call you. If they say, I‘m gonna call
you for a witness . . . . So the witness that pointed me and you out fucked up, ‘cause he
thought it was you. And that fool don‘t look shit like you, man. Short as fuck.‖ Morales
said, ―And I‘m buff.‖ Juarez replied, ―Yeah, I‘m skinny,‖ then laughed.




                                             9
       A little later, Juarez said, ―They throw the picture of Youngster in my lap. But,
you know, I don‘t even look at it because they tell me to, ‗Look at it, look at it. Who‘s
this?‘‖ Juarez continued, ―‗That‘s your homeboy, Youngster.‘ ‗I don‘t know this cat.‘
‗Well they call him what, Youngster?‘ ‗Yeah, you guys are from the same
neighborhood.‘ ‗Nah, I never met him.‘ . . . I said right to them, ‗I don‘t know that
fool.‘ ‗Look at him.‘ I don‘t got shit to look at him mother fucker. (INAUDIBLE) You
think I talk about Youngster. Ya, he‘ll get a case. Have to, he will get a case.‖ Morales
asked, ―Think so?‖ Juarez replied, ―Who, Youngster? When he comes—he comes back,
he always gots fake names. That‘s why they can‘t find him. He, he not in the U.S. He,
he not, fuckin‘ every time he gets busted, he gives ‘em different names. So he
(INAUDIBLE). Yeah, my boy (INAUDIBLE). . . . ‗Well we got twelve years to get this
case on you. We gonna find Youngster. Oh, you know where‘s he‘s at?‘ ‗I told you
guys I don‘t know.‘ I told them, I don‘t know where he‘s at. But I got to get at his mom,
homes. Vandal‘s gonna have to get at his mom.‖
       Juarez resumed recounting his interview with Valento, then again said the police
―fucked up‖ by accusing Morales and asked, ―[H]ow the fuck they gonna confuse you
with a fuckin‘ chaparro, skinny mother fucker, you know?‖ Morales agreed, and Juarez
continued: ―And he‘s tatted and you don‘t got no tats, so—‖ Morales confirmed that he
had shown the detectives he had no tattoos. Juarez said he was ―tryin‘ to get the fuck
outta here.‖ This was followed by 30 blank, double-spaced lines in the transcript. After a
few additional lines of conversation, followed by another lengthy redaction, Juarez said
he was not going to think about ―this case,‖ then added, ―I know Youngster ain‘t gonna
break. If I‘m ever here when he come, he ain‘t gonna break. He ain‘t, and I know his
priors dog, he not gonna break. I just have to talk to his mom and tell them, ‗Hey, he has
to relocate.‘‖ This was followed by another redaction of 38 blank, double-spaced lines.
Later, after Morales referred to law enforcement efforts to ―get [Juarez] to do life,‖ Juarez
said, ―I just need Youngster not to come back over here.‖ Morales asked if Juarez
thought he could make contact with Rosas, and Juarez said, ―I—I can get a hold of his


                                             10
mom, but I need to tell [inaudible] to come visit me. So I can just tell him in paper,
what‘s up. That fool, Youngster, looked like a straight tweaker in that picture. I looked
at him.‖ After Morales said he saw ―little tats right here‖ in the photo, Juarez confirmed,
―Got tats.‖ After Morales suggested Rosas would not want to ―stay away for 12 years,‖
Juarez said, ―He not, he not gonna break. He‘s not gonna say shit. But when it comes
down to, we go to trial, if we lose, [inaudible] what‘s up my boy?‖ A little later, Juarez
said the detective tried to get him to take a deal, ―[l]ike snitch on Youngster and tell them
where he‘s at and tell and say that it was him that did it.‖
       Valento testified that after the second Juarez-Morales conversation, he located
Rosas in a federal institution in Virginia and went with Detective Todd Anderson to
interview Rosas on February 2, 2010. That interview was recorded and the recording was
played at trial. Rosas told Valento his moniker was Risky, but later said he had
previously been known as Youngster. Rosas said he had been deported around the time
of the Christmas holidays of 2008, and did not return to the United States until September
of 2009, but was caught in the desert after he crossed the border. He was serving a 17- or
18-month sentence for illegal reentry. Valento noted that Rosas had been arrested by the
LAPD in January of 2009 and was deported at that time. Rosas corrected himself and
agreed that it was January 1 of 2009 that he was arrested and deported. Asked where this
arrest occurred, Rosas said, ―Olympic and Indiana.‖ After Valento noted Rosas had
―some arrests before September of ‘09,‖ Rosas said, ―No. I came back and I—I got
arrested for a robbery.‖ Rosas added that arrest was in August, the case was dismissed,
and he was deported. Valento remarked that Rosas was arrested for ―some dope‖ on
April 29, 2009, and asked when Rosas returned between January and April of 2009.
Rosas replied, ―Well, I came back in April. The same month I got popped.‖ Rosas
explained he was deported in the wake of that case, also. Valento asked Rosas why he
had said he did not return until September of 2009 after being deported at the beginning
of 2009. Rosas said he had forgotten about the interim events.




                                              11
       Valento asked Rosas if he knew ―Monkey‖ (Juarez). Rosas said he knew him but
did not hang out with him. Rosas had last seen him about two years earlier when Monkey
got out of the Youth Authority. Rosas also denied hanging out near the intersection of
Union Pacific and Hicks, but acknowledged he was familiar with that location because he
previously had a girlfriend who lived near there for a time. The detectives informed
Rosas that there had been a late night shooting at Union Pacific and Hicks, specifically
3963 Union Pacific, in February of 2009, noting it was the same address where Rosas was
arrested in January 2009. They further told him that DNA tests had implicated him and
Monkey in the crime, and that when confronted with that information, Monkey had
admitted his involvement but told them that Rosas was the shooter. Rosas repeatedly
denied knowledge of the incident, knowing what ITC was, and hanging out on Union
Pacific. Rosas repeatedly told the detectives he was not there, knew nothing about it, did
not know how his DNA could be there, and had nothing to say to them He called their
bluff with regard to both the DNA and the purported statements by Juarez, asking them
why they were questioning him if they already had such strong evidence.
       On March 28, 2010, Juarez phoned Rosas‘s mother, Dora Avila, from jail. The
call was recorded and the recording was played at trial. Juarez identified himself as both
―Freddy‖ and ―Monkey‖ and asked Avila if she remembered him. She said she did.
Juarez asked if Avila knew where Rosas was, and she told him Rosas was in Virginia.
Juarez asked if any police had come to her house, and she said they had not. Juarez
reminded Avila that he and Rosas ―were always together.‖ Juarez told Avila that he had
been sentenced to 12 years and ―they came to talk to me about some things‖ and ―put your
son‘s name.‖ Juarez said, ―[I]f you speak with him and he gets out, tell him to leave from
here, because . . . see they‘re looking for me . . . I am here fighting a case.‖ Juarez
continued, ―They have his name (unintelligible) on my paper so I want you to tell your
son if he gets out to go far away from here because they are looking for him.‖ Avila said
she would do so. Valento testified it was ―typical‖ for gang members to warn one another
when police are looking for them.


                                              12
       On January 5, 2011, Valento returned to Virginia and brought Rosas back to Los
Angeles. The next day, Valento told Rosas and Juarez that each would be placed in
separate live lineups to be viewed by a witness. This was yet another ruse designed to
record a conversation between Rosas and Juarez. Rosas and Juarez were placed together
in the lineup staging area while jail deputies sought out other inmates who looked like
Rosas and Juarez to participate in the sham lineups. The recording of the conversation
between Rosas and Juarez and the lineups was played at trial.
       After answering questions by deputies about their height, weight, and tattoos,
Rosas said, ―Hey, these fools be trying to spin, spin us up.‖ Juarez replied, in Spanish,
―Don‘t say anything.‖ Rosas said, ―Hey them fools were trying to tell me that you flipped
on me. They told you the same shit, huh?‖ Juarez replied, ―Same thing, homie.‖ Rosas
said he knew Juarez ―didn‘t say shit.‖ Juarez referred to ―the DNA papers‖ and Rosas
asked, ―What, what DNA they got?‖ Juarez said, ―It‘s bullshit.‖ Juarez said they showed
him ―an FBI paper‖ and a photo of Rosas, but insisted he had denied knowing Rosas.
Rosas and Juarez discussed what the detectives had said to them and what they had said
to the detectives. Rosas said he had intended to wait until he saw ―paperwork‖ regarding
Juarez. Juarez responded, ―You know I‘d tell you,‖ and ―I know you wouldn‘t mess me
up, dawg.‖ Rosas said, ―[T]hese fool[]s trying to involve us in something we didn‘t even
do, homie . . . .‖ Juarez replied, ―I know. I was in San Bernardino, I have my alibis.‖
Juarez began to tell Rosas what ―Silent‖ and ―Simon‖ had said, and Rosas asked, in
Spanish, ―There‘s someone talking?‖ Juarez said he did not know, then said he had run
―into couple fools from the area,‖ whom he described as ―lil taggers,‖ in the three months
he had been in the jail. Juarez told Rosas that he had been arrested with Solo (Morales)
and the detectives ―pulled him and me out and they told Solo, ‗Hey you‘re the one—
you‘re the shooter,‘ this and that, but Solo was like, ‗Hell no.‘ Then . . . they told Solo,
‗Hey, we‘re sorry, we confused you with somebody else.‘ . . . [T]hey thought he was
you. For that one. They were coming every week to see me, dawg.‖ After discussion
about some of their mutual friends, Rosas mentioned some ―little differences‖ he and


                                              13
Juarez had had ―out there‖ and some ―shit that happened out there on that meeting,‖ and
said, ―[Y]ou fools let me down‖ ―[b]ut I ain‘t got . . . no grudge.‖ Juarez said it was a
―dead issue‖ and again denied having implicated Rosas.
       A little later, Rosas asked, ―Hey, you think they got any other witnesses?‖ Juarez
replied, ―No way.‖ Juarez then stated, in a mixture of Spanish and English, ―That fool
got there fool. That fucken tagger fool, I know him from middle school that‘s his boy.
That fool gots rest in peace, that fool. He was there with me. I told him, ‗What‘s up
dawg, what‘s crackin?‘ For that shit, how I got burned, because they were putting in
MySpace, they were all, ‗Yeah, Monkey, this, killed this fool, this fool, this fool, this
fool.‘ So, hudas (cops) got all that shit on MySpace, so, it was me, and I told that fool,
‗What‘s going on? What happened that day, who, who was there? Because, I was in San
Bernardino, nobody from my neighborhood was out there, everybody got locked up,
everybody, nobody was there.‘‖ Juarez said he suggested it was ―BSO [or] King Cobras.‖
Rosas responded, ―Probably was.‖ Juarez said, ―Yeah, it was. And then that fool was
like, ‗Oh, that day in that car, it was some fool from Maravilla, some fool from ITC,‘ so I
got—I got them fools‘ numbers.‖ Rosas asked, ―Yeah, you think it‘s them?‖ Juarez
replied, ―Yeah.‖ Rosas asked, in Spanish, ―But they‘re not going to say anything, right?‖
Juarez said, ―These fools said it happened like at twelve at night.‖ Rosas responded, in
Spanish, ―Oh really?‖ Rosas and Juarez agreed it was dark on Union Pacific. Rosas said
the detectives did not have any DNA, and Juarez said they had nothing. Juarez stated that
the people in ―that shop on the corner‖ ―stay up all night‖ and ―it‘s them fools.‖ Juarez
added he had ―been getting visitors‖ and was trying to get particular people to visit ―so I
can get the shit and do something about it.‖
       Rosas asked, ―Hey, what do you think—if they—if they point us out, what do you
think?‖ Juarez said the lineup did not matter, they would get attorneys and keep on going
to court. He said, ―[W]e need this fool pointing us out to go to court‖ ―and get on the
stand.‖ Rosas said, ―I know,‖ and said he would ―work on that‖ if it were ―them fools.‖
Later, Rosas said, ―Hey, you know—you know who I thought it was? Claudio.‖ Juarez


                                               14
agreed. Rosas and Juarez then conversed in Spanish. Rosas said he was thinking of
putting his ―girl‖ ―on alert‖ and telling ―her to go to Claudio.‖ He then asked, ―There‘s
no one huh, fool?‖ Juarez said, ―Nobody was (Unintelligible).‖ Rosas replied, ―There
wasn‘t huh fool?‖ Juarez said, ―Nothing.‖ Rosas asked, ―Then why do you think they‘re
going to bring someone now?‖ Juarez said, partially in Spanish and partially in English,
―I don‘t know, fool. These fools they really want this case.‖ They agreed the detectives
had no evidence, and Rosas said, ―It‘s all right, we‘ll be all right, though.‖
       Juarez spoke of hearing from another ―homeboy‖ that people were saying he had
―dropped a dime,‖ then denied he had done so. Rosas said Grumpy had asked him, ―‗You
don‘t think Monkey‘s saying something?‘ I was like, ‗Saying what?‘ you know what I‘m
saying. There‘s nothing to say, you know what I‘m saying.‖ He continued, ―‗There‘s
nothing to say because I, I was never with Monkey,‘ you know what I‘m saying.‖ Juarez
said, ―Dude, I got an alibi, I was just in San Bernardino . . . .‖ Rosas said, ―I was in
Mexico, and this fool‘s trying . . . .‖
       At that time, deputies began grouping the participants for the lineup containing
Rosas. When they let Rosas return to Juarez, Juarez said he asked his mother ―to call
her,‖ and Rosas replied, ―She told me one time you called, like, telling me to be careful.‖
Rosas said, ―Hey, you know who I hope it is? Claudio.‖ He continued in Spanish: ―He‘s
not going to say anything, fool. Neither is his girl.‖ Juarez agreed, ―Yeah, that‘s the only
people, that‘s the only people.‖ Rosas agreed, ―Yeah, that‘s the only people I can think
of.‖ Rosas then said, ―[B]ut why is she going to say some fucked up shit that I didn‘t
even do, you know, that we didn‘t even do, so.‖ He continued, ―[S]he didn‘t see me do
shit because I didn‘t do shit.‖ After Juarez mentioned another one of their friends who
was in jail, Rosas said, ―Man, when we were all out there, we had that ‘hood terrorized.‖
They continued to discuss their fellow gang members, the activities of those gang
members, and their own tattoos and those of other gang members until the deputies began
conducting the lineups.




                                              15
       When the lineup containing Rosas was conducted, Valento instructed the deputy to
have Rosas, and no one else, step to the center of the stage and say ―fuck tiempos.‖ He
testified that he made this request because Juarez had told Morales that phrase was uttered
just before the charged shootings. The deputy complied. Rosas asked, ―What? She
say?‖ The deputy repeated the request and Rosas said, ―I don‘t understand.‖ The deputy
again repeated the request and Rosas said, ―What?‖ After the deputy reiterated the
request, Rosas said, ―The dimples?‖ The deputy again repeated, ―Fuck tiempos,‖ and
Rosas said it. The participants exited the stage, and Rosas rejoined Juarez. Rosas said,
―What was that?‖ Juarez said he did not know. Rosas asked, ―Hey, why do you think
they made me step—‖ Juarez said he did not know. Rosas asked, ―You think they
pointed me out?‖ Juarez said, ―Fuck tiempos.‖ Rosas asked, ―What is that?‖ Juarez said,
―Who the fuck would‘ve said fuck tiempos? I don‘t know.‖ Rosas said, ―It don‘t make
no sense.‖ He later asked, ―Who was that crew supposedly, what‘s the name of it?‖
Juarez replied, ―ITC, Insane Tagging Crew, Insane something. Fuck tiempos, she was
trying to say fuck tiempos, time.‖ He continued, ―Tiempos, that‘s fucking crazy. We got
to get on that.‖ Rosas said, ―Hopefully they didn‘t point us out. What do you think?‖
Juarez said, ―We need him or her‖ ―in the stand.‖ Rosas replied, ―Chhh, what if they go
. . . and lie about shit?‖ Juarez noted that the lineup witness had not identified him,
whereas the detectives had told him that the witness had previously identified him with
certainty. Juarez said, ―I don‘t think it was a cool line-up.‖ Rosas replied, ―I don‘t know.
Who cares, I mean, we didn‘t do nothing. That was weird though, that fuck whatever.‖
―Tiempos,‖ Juarez reminded him. Rosas said, ―I said dimples because I didn‘t understand
what she was saying. Did you understand it?‖ Juarez said, ―No.‖
       One of the lineup deputies told Rosas he had been identified and explained,
―[T]hat‘s why they called you back up there.‖ A little later, Rosas wondered, ―How am I
gonna find out who it is?‖ Juarez assured Rosas that if he hired private counsel, the
attorney would tell him. Juarez also said, ―They said that shit happened, like, at 12, 1, 2
in the morning.‖ Rosas responded, ―Yeah?‖ Juarez continued, ―It was dark as fuck. You


                                             16
know, Union Pacific it be dark, so that fool had to be close to each other.‖ Rosas asked,
―Who?‖ Juarez continued, ―Or they, or they already had showed the picture of you, the
detectives were like, ‗Oh, look, are those the two guys?‘ ‗Oh yeah.‘ So, you come in—‖
Rosas completed the thought: ―And they already know.‖ Juarez said, ―You, you came
from Mexico in April, that‘s the only time, April. I was in San Bernardino. You got your
alibis, I got my alibis, that‘s all we need.‖
       Juarez said, ―Silent told me something about it, but I, I cut him off, I‘m like, ‗I
don‘t want to hear that shit.‘‖ He continued, ―I‘m, ‗Nah, I don‘t care, I was in San
Bernardino.‘‖ Rosas asked, ―What do you think he‘s saying? ‗I seen him there,‘ or ‗I
seen him running,‘ or something? What can he be saying, ‗I seen him shooting‘?‖ Juarez
responded, ―We got action, this shit happened a long time ago dawg. That‘s what they
say.‖ He added, ―[T]hey‘re saying this shit happened a long time ago, like ‘08.‖
       The prosecution also played several other recordings of Juarez asking various
friends to contact potential witnesses. During a January 15, 2011 visit, Juarez asked a
visitor to contact Grumpy to dissuade a ―fool‖ from Maravilla from coming to court
because there was ―a gang of fools snitching.‖ Juarez also asked the visitor to take a
couple of friends and visit ―Jesse‖ (spelled ―Jessie‖ in other transcripts), who knew the
―fools‖ who were in the car. Juarez said to tell ―them fools to not show up to court‖
―[b]ecause that‘s the only way I‘m a get off.‖
       In a phone call later in the day on January 15, 2011, Juarez asked ―Lil Man‖ to talk
to Jesse, who had gone to school with them, because Juarez had told Jesse ―a shit load of
things and Jesse knew too much.‖ Juarez said, ―So, that fool knows everything, I talked
to him when he was here, so if he acts stupid, fool, know get em, alright?‖ Lil Man
agreed to do so.
       On January 23, 2011, Juarez phoned Grumpy and gave him a phone number for
Jesse, said Jesse knew everything that had happened and knew the taggers, and he would
take Grumpy to them. Grumpy said he would talk to Jesse.




                                                17
       The date of Rosas‘s return to the United States was a contested issue. Officer
Mark Bravo testified he arrested Rosas after Rosas drove into the driveway at 3963 Union
Pacific on January 1, 2009. The parties stipulated that Rosas was arrested that day and
physically returned to Tijuana on January 6. Bravo cited Rosas for a traffic violation at
Indiana and Union Pacific on March 31. Rosas had also received a traffic citation on
March 10 in Vernon.
       To attempt to prove that Rosas returned before March, the prosecution called
Crystal Marquez as a witness. She testified that on January 16, 2009, she and her cousins
were in the front yard of her mother‘s home on Hicks Avenue following funeral services
for Marquez‘s sister and the sister‘s young child when a dark-colored car drove up and
stopped. Rosas, the passenger in the car, got part way out of the car and asked why there
was a crowd at the house. Marquez did not recognize the driver, who did not get out of
the car. Marquez testified she considered Rosas‘s statements and conduct disrespectful
and became irate. She told her cousins she did not want ―gangbanging‖ at her sister‘s
funeral reception, and her cousins spoke to Rosas and his companion, who then left.
Marquez testified she had previously seen Rosas ―patrolling‖ the area and heard that
―Youngster‖ used ―‗to terrorize that block.‘‖ She testified Rosas once asked her where
she was from, and she was offended by this because she did not look like a gang girl.
Marquez admitted she had been drinking alcohol before the car containing Rosas arrived.
She further admitted that she had been convicted of selling methamphetamine in 2004,
felony check forgery in 2003, and misdemeanor check forgery in 2002. She also used
methamphetamine, including after her sister‘s death in January of 2009, but not on the
day of the funeral. Marquez was further impeached with her prior inconsistent statements
to Valento, in which she said the car was white, two people—including someone named
Marco—got out of it, and she personally told the men to leave. At trial, Marquez denied
knowing anyone named Marco.
       Rosas‘s mother, Dora Avila, testified as a defense witness that Rosas could not
possibly have been in Los Angeles on January 16, 2009, the day Marquez claimed to see


                                            18
him, because Avila was sending him money in Tijuana and he was phoning her collect
from Mexico. He called her six or eight times in January of 2009, including January 16,
17 ,19, and 20. She electronically sent him money on January 7, 9, 12, 18, and 23, and
documents admitted at trial reflected this. After January 23, she had to send him cash
through friends because Rosas lost his identification card and was unable to claim money
sent electronically.
       Photographs of the tattoos of Juarez and Rosas taken in January of 2011 were
admitted at trial, and gang expert Vasquez testified that they signified membership in the
Indiana Dukes gang. Vasquez had first met Rosas in 2000, when Rosas had fewer
tattoos. Vasquez further testified that he had previously testified at a 2006 trial in which
Rosas was convicted of possessing a loaded, unregistered gun.
       Vasquez opined that newer members of a gang are required to ―put in work‖ for
the gang, including committing crimes, while older, more experienced members
accompanied them to verify the ―work‖ performed. He further opined that a member of
the Maravilla gang who entered Indiana Dukes territory was likely to encounter
retaliation. Similarly, members of a tagging crew who wrote graffiti in Indiana Dukes
territory were likely to encounter retaliation. In response to a hypothetical question based
upon the prosecution‘s evidence, Vasquez opined that the charged crimes were committed
for the benefit of, at the direction of, or in association with the Indiana Dukes street gang
with the specific intent to further its criminal conduct.
       Rosas was 22 at the time of the charged crimes and at the time of the sham lineup
he was 5 feet 5 inches tall and weighed 165 pounds. Juarez was 17 at the time of the
charged crimes. At the time of the sham lineup he was 5 feet 7 inches or 5 feet 8 inches
tall and weighed 150 pounds.
       Rosas and Juarez were tried together by a single jury. The jury convicted each
defendant of second degree murder and attempted murder. With respect to both
defendants, the jury found the attempted murder was not willful, deliberate, and
premeditated, but that the offenses were committed for the benefit of, at the direction of,


                                              19
or in association with a criminal street gang, with the specific intent to promote, further,
or assist in criminal conduct by gang members. The jury further found that Rosas
personally used a gun, fired a gun, and fired a gun, causing death. (Pen. Code,
§ 12022.53, subds. (b), (c), (d); undesignated statutory references are to the Penal Code.)
The jury found, with respect to Juarez, that a principal personally used a gun, fired a gun,
and fired a gun, causing death. (§ 12022.53, subds. (b), (c), (d), (e).) The court sentenced
Rosas to 77 years to life in prison, consisting of 15 years to life for the murder, plus 25
years to life of the section 12022.53, subdivision (d) enhancement, plus 7 years for
attempted murder, plus 20 years for the section 12022.53, subdivision (c) enhancement,
plus 10 years for the gang enhancement. The court sentenced Juarez to 65 years to life in
prison, consisting of 15 years to life for the murder, plus 25 years to life for the section
12022.53, subdivisions (d) and (e) enhancement, plus 5 years for attempted murder, plus
20 years for the section 12022.53, subdivisions (c) and (e) enhancement.
                                       DISCUSSION
1.       Admission of Juarez’s statements to Morales violated Rosas’s confrontation
rights
         In Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620] (Bruton), the United
States Supreme Court concluded that introduction in a joint trial of a nontestifying
defendant‘s extrajudicial statement that implicates a codefendant violates the
codefendant‘s federal constitutional right of confrontation, even if the jury is instructed to
consider the statement only with respect to the defendant who made it. (Id. at p. 137.)
―The high court reasoned that although juries ordinarily can and will follow a judge‘s
instructions to disregard inadmissible evidence, ‗there are some contexts in which the risk
that the jury will not, or cannot, follow instructions is so great, and the consequences of
failure so vital to the defendant, that the practical and human limitations of the jury
system cannot be ignored.‘ (Id. at p. 135.) Such a context is presented when ‗the
powerfully incriminating extrajudicial statements of a codefendant, who stands accused




                                              20
side-by-side with the defendant, are deliberately spread before the jury in a joint trial.‘
(Id. at pp. 135–136.)‖ (People v. Lewis (2008) 43 Cal.4th 415, 453.)
       Before trial, Rosas moved to exclude or redact Juarez‘s statements during his
conversations with Morales, sever his trial from that of Juarez, or empanel two juries.
The trial court denied severance, dual juries, and exclusion, redacted two statements from
the first conversation between Juarez and Morales, and ruled nothing else in either
redacted statement violated Bruton. Before the conversations were admitted at trial,
Rosas renewed his objections, which the trial court overruled.
       Rosas contends that the redacted Juarez-Morales conversations nonetheless
included statements by Juarez that implicated Rosas in the charged crimes and thus
violated his federal constitutional rights to confront and cross-examine witnesses against
him. We agree.
       ―[T]he Confrontation Clause is not violated by the admission of a nontestifying
codefendant‘s confession with a proper limiting instruction when . . . the confession is
redacted to eliminate not only the defendant‘s name, but any reference to his or her
existence.‖ (Richardson v. Marsh (1987) 481 U.S. 200, 211 [107 S.Ct. 1702]
(Richardson).) ―[E]diting a nontestifying codefendant‘s extrajudicial statement to
substitute pronouns or similar neutral terms for the defendant‘s name will not invariably
be sufficient to avoid violation of the defendant‘s Sixth Amendment confrontation
rights.‖ (People v. Fletcher (1996) 13 Cal.4th 451, 468.) ―Redactions that simply replace
a name with an obvious blank space or a word such as ‗deleted‘ or a symbol or other
similarly obvious indications of alteration, however, leave statements that, considered as a
class, so closely resemble Bruton‘s unredacted statements that . . . the law must require
the same result.‖ (Gray v. Maryland (1998) 523 U.S. 185, 192 [118 S.Ct. 1151] (Gray).)
―When, despite redaction, the statement obviously refers directly to the defendant, and
involves inferences that a jury ordinarily could make immediately, even were the
confession the very first item introduced at trial, the Bruton rule applies and introduction




                                              21
of the statement at a joint trial violates the defendant‘s rights under the confrontation
clause.‖ (People v. Burney (2009) 47 Cal.4th 203, 231 (Burney).)
       In Richardson, supra, 481 U.S. 200, the confession of defendant Williams, who
was tried jointly with Marsh, was redacted to omit not only all references to Marsh, but
every ―indication that anyone other than . . . Williams‖ and Martin (who was not tried
with Marsh and Williams) had ―participated in the crime.‖ (Id. at p. 203.) The trial court
also instructed the jury not to consider that confession against Marsh. (Id. at p. 205.) The
redacted confession stated that Williams and Martin had discussed the murder in the front
seat of a car while they traveled to the victim‘s house, but did not indicate that anyone
else was in the car. (Id. at pp. 203–204, fn. 1.) Although Marsh ultimately testified at
trial that she was in the back seat of the car (id. at p. 204), the Supreme Court held that
the redacted confession did not violate Bruton (Richardson at pp. 208, 211).
       In Gray, supra, 523 U.S. 185, a confession by codefendant Bell was redacted by
merely omitting the names of Gray and a deceased accomplice. When a detective read
the confession at trial, he said, ―‗deleted‘‖ or ―‗deletion‘‖ in lieu of these names. After he
finished reading the confession, he testified that based upon the information provided by
Bell, he arrested Gray. The written copy of the confession substituted blank spaces,
separated by commas, for their names. (Id. at pp. 188–189.) The Supreme Court held
that the redacted confession ran afoul of Bruton because it ―refer[red] directly to the
‗existence‘ of the nonconfessing defendant,‖ and the jury would have realized that it was
the nonconfessing defendant‘s name that had been deleted. (Id. at pp. 192–193.) The
court noted that ―the prosecutor, after all, has been arguing that [the nonconfessing
defendant], not someone else, helped [the confessing defendant] commit the crime.‖ (Id.
at p. 193.) The court further noted that ―the obvious deletion may well call the jurors‘
attention specially to the removed name. By encouraging the jury to speculate about the
reference, the redaction may overemphasize the importance of the confession‘s
accusation—once the jurors work out the reference.‖ (Ibid.) Statements redacted in this
manner are as directly accusatory as unredacted statements and create ―a special, and


                                              22
vital, need for cross-examination.‖ (Id. at p. 194.) ―The blank space in an obviously
redacted confession also points directly to the defendant, and it accuses the defendant in a
manner similar to Evans‘ use of Bruton‘s name or to a testifying codefendant‘s accusatory
finger. By way of contrast, the factual statement at issue in Richardson—a statement
about what others said in the front seat of a car—differs from directly accusatory
evidence in this respect, for it does not point directly to a defendant at all.‖ (Ibid.)
        The court in Gray conceded that ―in some instances the person to whom the blank
refers may not be clear,‖ such as when the evidence ―indicates that there are more
participants than the confession has named.‖ (Gray, supra, 523 U.S. at pp. 194–195.)
The court also acknowledged that a jury had to use inference to connect the blanks in the
redacted statement to the defendant, and that ―Richardson placed outside the scope of
Bruton‘s rule those statements that incriminate inferentially.‖ (Gray at p. 195.) But the
court concluded that Richardson‘s application depended ―in significant part upon the kind
of, not the simple fact of, inference.‖ (Gray at p. 196.) When, notwithstanding redaction,
the statement ―obviously refer[s] directly to someone, often obviously the defendant, and
. . . involve[s] inferences that a jury ordinarily could make immediately, even were the
confession the very first item introduced at trial,‖ the introduction of the statement at a
joint trial violates the non-confessing defendant‘s confrontation rights. (Id. at pp. 196–
197.)
        Considering the redacted Juarez-Morales conversations as a whole, they repeatedly
revealed, expressly or implicitly, that Juarez had an accomplice in the commission of the
charged crimes, and Rosas was that accomplice. Because Rosas was charged with the
same crimes and the prosecutor contended that Rosas was that accomplice, the jury would
have realized that the accomplice to whom Juarez referred was Rosas. For example, in
the first conversation, Morales said, ―[P]eople are saying that—that I‘m the one that was
with you,‖ and said he had told the detective he was not. Juarez said, ―You know who it
was?‖ Morales asked, ―Who, who was what?‖ Juarez replied, ―That fool . . .
(unintelligible whispering).‖ Morales replied, ―Oh, yeah, yeah. Oh.‖ This clearly


                                              23
revealed the existence of an accomplice and the jury would have ultimately realized that it
was Rosas‘s name that Juarez had whispered unintelligibly. The trial court should have
eliminated all of the quoted statements.
       Next, after Morales asked a number of questions about what kind of gun Juarez
used and where ―the shells‖ were, Juarez said, ―No, I did, I didn‘t, I didn‘t sho, I didn‘t do
shit. I didn‘t have the piece.‖ This is followed by eight blank, double-spaced lines. This
clearly revealed that Juarez was asserting that he had an accomplice, and his accomplice
was the shooter. The jury would have realized that the accomplice to whom Juarez
referred was Rosas, and the blank lines ―also point[ed] directly to‖ Rosas and accused
him. (Gray, supra, 523 U.S. at p. 194.) We further note that because so much of the
unredacted conversation was irrelevant to the charged offenses, the jury would not infer
that redacted portions were merely irrelevant.
       After Juarez questioned how he could have left DNA at the scene of the charged
crimes, he said, ―Cuz when that shit happened, all I was, I, when the other car, I was, I
went like this, I went walking, then when that fool started, boom, boom, boom, boom,
that‘s when I hit the corner and I started running . . . cheeww . . . I didn‘t touch nothing. I
just ran.‖ Although this statement is susceptible of other interpretations, in the context of
Juarez‘s prior statement that he did not ―have the piece‖ and the prosecutor‘s theory that
Rosas was the gunman, an obvious inference from this statement is ―that fool‖ referred to
Juarez‘s accomplice, and ―boom, boom, boom, boom‖ referred to shooting. Indeed,
Juarez argued this interpretation in his closing argument. Thus, this statement was yet
another assertion by Juarez that his accomplice was the shooter. The jury would have
realized that the accomplice to whom Juarez referred was Rosas.
       For the same reasons, the following statements by Juarez should have been
eliminated (ellipses in original): ―Cuz the Tiempos came out . . . (unintelligible) . . . that
was when we jumped up in, ‗What the fuck, stop it, . . . (unintelligible) . . . Tiempo.‘
Pow, pow, pow, pow. It was that day, I don‘t know, I think this fool, cuz when they said
it was a big gun. ‗You like big ones?‘ I‘m like, ‗Nah, I like small ones, 38‘s 22‘s.‘


                                              24
(Unintelligible) . . . let this fool have it. Then when this fool hit this fool, I didn‘t even
know those fools. I don‘t know, dog. I didn‘t do it. I don‘t have to worry about it.‖ This
was yet another assertion by Juarez that his accomplice was the shooter, and the jury
would have realized that the accomplice to whom Juarez referred was Rosas.
       More than one page of blank space followed the statement quoted in the preceding
paragraph. Juarez then said, ―I didn‘t think they will put you out in this one. How the
fuck they . . . (unintelligible) . . . picture, mother fucker. I thought he would, they would
pull out the homie, Youngster. I‘m like fuck, cuz he‘s here right now, too. He‘s
awaiting, he‘s awaiting to get deported.‖ Morales said that the police would probably
bring Youngster in after them, and Juarez, responded, ―Nah, they told me, the guy said
that you were there.‖ (Ellipses in original.) A short time before Juarez made this
statement, he had spoken about the detective showing him the photographic array with the
photograph of himself ―circled hundred percent.‖ In this context, the statements, ―I
thought he would, they would pull out the homie, Youngster‖ and ―the guy said that you
were there‖ expressed Juarez‘s surprise that the detective had not produced a photograph
of Rosas showing that he had also been identified as a perpetrator of the charged offenses
and that the detective had asserted that Morales was Juarez‘s accomplice. Thus, these
statements asserted that Rosas committed the charged offenses with Juarez.
       In the second conversation between Juarez and Morales, Morales said the detective
had shown him a photo and asked, ―‗Is that fool Youngster?‘‖ A few lines later, Juarez
said, ―They didn‘t have, like they came—they—they can‘t find Youngster.‖ Juarez and
Morales then discussed whether Youngster had fled, with Juarez making several inaudible
statements. Morales said, ―Yeah, hey, that fool said, ‗It‘s cool, he looks like you.
Everybody‘s tryin‘ to say that he looks like you.‘‖ Juarez replied, ―Oh, they fucked up
right there.‖ Juarez then expanded on this, saying, ―So the witness that pointed me and
you out fucked up, ‘cause he thought it was you. And that fool don‘t look shit like you,
man. Short as fuck.‖ This constituted an assertion by Juarez that Rosas was his
accomplice in the charged crimes.


                                               25
       After additional references to ―Youngster,‖ Juarez said, ―They throw the picture
of Youngster in my lap. But, you know, I don‘t even look at it because they tell me to,
‗Look at it, look at it. Who‘s this?‘‖ Juarez continued, ―‗That‘s your homeboy,
Youngster.‘ ‗I don‘t know this cat.‘ ‗Well they call him what, Youngster?‘ ‗Yeah, you
guys are from the same neighborhood.‘ ‗Nah, I never met him.‘ . . . I said right to them,
‗I don‘t know that fool.‘ ‗Look at him.‘ I don‘t got shit to look at him mother fucker.
(Inaudible.) You think I talk about Youngster. Ya, he‘ll get a case. Have to, he will get
a case.‖ Morales asked, ―Think so?‖ Juarez replied, ―Who, Youngster? When he
comes—he comes back, he always gots fake names. That‘s why they can‘t find him. He,
he not in the U.S. He, he not, fuckin‘ every time he gets busted, he gives ‘em different
names. So he (inaudible). Yeah, my boy (inaudible). . . . ‗Well we got twelve years to
get this case on you. We gonna find Youngster. Oh, you know where‘s he‘s at?‘ ‗I told
you guys I don‘t know.‘ I told them, I don‘t know where he‘s at. But I got to get at his
mom, homes. Vandal‘s gonna have to get at his mom.‖ Although much of what Juarez
said purported to recount his interview with the detective, the statements, ―You think I
talk about Youngster. Ya, he‘ll get a case. Have to, he will get a case‖ and ―But I got to
get at his mom, homes. Vandal‘s gonna have to get at his mom‖ clearly implied that
Rosas was Juarez‘s accomplice in the charged offenses because if Juarez had talked about
Rosas to the detectives, Rosas would ―get a case,‖ and it was important to warn Rosas‘s
mother to help Rosas avoid getting arrested.
       After Juarez continued to speak about his interview with the detectives, he said the
police ―fucked up‖ by accusing Morales and asked, ―[H]ow the fuck they gonna confuse
you with a fuckin‘ chaparro, skinny mother fucker, you know.‖ Juarez continued, ―And
he‘s tatted and you don‘t got no tats, so—‖ After two additional brief statements each by
Morales and Juarez, there were 30 blank, double-spaced lines. Juarez‘s statements about
the absurdity of the police confusing Morales with someone else clearly referred to the
appearance of his accomplice. The record reveals that Rosas had numerous tattoos,
including some on his face, he weighed 165 pounds at the sham lineup, and he was 5 feet


                                            26
5 inches tall. The jury could infer that Juarez‘s description of his accomplice was
consistent with Rosas. Thus, in context, Juarez‘s statement in this segment effectively
pointed at Rosas as Juarez‘s accomplice in the charged crimes.
       A few lines of conversation followed the lengthy blank space described in the
preceding paragraph, then 33 blank, double-spaced lines ensued. After that, Juarez said
he was not going to think about ―this case,‖ then added, ―I know Youngster ain‘t gonna
break. If I‘m ever here when he come, he ain‘t gonna break. He ain‘t, and I know his
priors dog, he not gonna break. I just have to talk to his mom and tell them, ‗Hey, he has
to relocate.‘‖ This expressly referred to Rosas and implicitly referred to his guilt, through
reference to him not confessing and needing to flee.
       A little later, after four short segments of conversation interspersed with three
segments of blank lines, Morales referred to law enforcement efforts to ―get [Juarez] to
do life.‖ Juarez responded, ―I just need Youngster not to come back over here.‖ Morales
asked if Juarez thought he could make contact with Rosas, and Juarez said, ―I—I can get
a hold of his mom, but I need to tell (inaudible) to come visit me. So I can just tell him in
paper, what‘s up. That fool, Youngster, looked like a straight tweaker in that picture. I
looked at him.‖ After Morales said he saw ―little tats right here‖ in the photo to which
Juarez had referred, Juarez confirmed, ―Got tats.‖ After Morales suggested that Rosas
would not want to ―stay away for 12 years,‖ Juarez said, ―He not, he not gonna break.
He‘s not gonna say shit. But when it comes down to, we go to trial, if we lose,
(inaudible) what‘s up my boy?‖ A little later, Juarez said the detective tried to get him to
take a deal, ―[l]ike snitch on Youngster and tell them where he‘s at and tell and say that it
was him that did it.‖ This segment expressly referred to Rosas and his complicity in the
charged offenses (the possibility Juarez could ―snitch‖ on Rosas) and implicitly refers to
his guilt, through reference to him not confessing and the need to keep Rosas from
―com[ing] back over here.‖
       In addition, it is significant that Rosas admitted in his interview with detectives
that Youngster was a moniker he had used, Officer Bravo testified that Rosas used the


                                             27
name Youngster and Bravo did not know of anyone else from the Indiana Dukes who
used that moniker, and the prosecutor conditioned the jury in his opening statement to
understand that Rosas was ―Youngster‖ and he ―was the shooter in this murder and
attempted murder.‖ And, just as in Gray, supra, 523 U.S. 185, Valento testified that
Juarez‘s reference to Youngster in his first recorded conversation with Morales caused
Valento to obtain a photograph of Rosas and to confirm that Rosas had been in county jail
in August of 2009, when the first Juarez-Morales conversation occurred. After hearing
the second Juarez-Morales conversation, Valento searched for Rosas and traveled to
Virginia to interview him on February 2, 2010.
       Accordingly, notwithstanding the redactions the prosecutor and the court made to
the Juarez-Morales conversations, there can be no doubt that the jury understood the
above-quoted segments of those conversations to both refer to and implicate Rosas as
Juarez‘s accomplice and the shooter in the charged crimes. This created a dire need for
Rosas to be able to cross-examine Juarez, which, of course, he could not. Introduction of
these conversations thus violated Rosas‘s confrontation rights.
       The Attorney General argues, as did the prosecutor in the trial court, that the
coconspirator and declaration against interest exceptions to Bruton‘s rule of exclusion
apply. We disagree.
       The coconspirator exception applies to statements made by coconspirators while
participating in a conspiracy and in furtherance of the objective of that conspiracy.
(People v. Roberts (1992) 2 Cal.4th 271, 303–304.) Assuming, for the sake of argument,
that Juarez and Rosas conspired to kill Lopez and attempt to kill Ramirez, Juarez‘s
statements to Morales 6 and 11 months after the charged crimes were not made during the
course of the conspiracy, but long after the conspiracy had achieved its objective. Nor
were these statements—made to someone who was not part of the conspiracy—in
furtherance of the objective of that conspiracy. Juarez was not seeking Morales‘s
assistance to complete the objective of the conspiracy, for example. He was instead




                                             28
merely telling Morales about the prior crime. Accordingly, the coconspirator exception
was inapplicable.
       The declaration against interest ―exception‖ to Bruton ―allows admission only of
those portions of the statement that are ‗specifically disserving‘ to the declarant‘s
interest.‖ (People v. Smith (2005) 135 Cal.App.4th 914, 922.) The trial court must excise
any portion of a statement that is not specifically disserving to the declarant, especially
statements that incriminate or shift blame to another. (People v. Duarte (2000) 24 Cal.4th
603, 617–618.) A statement in which a declarant implicates both himself and his
codefendant falls squarely within Gray, supra, 523 U.S. 185, and its admission at a joint
trial violates the codefendant‘s confrontation rights. The statements we have addressed in
this section implicated Rosas and had to be either sufficiently redacted or excluded, even
though some of them also constituted admissions by Juarez. Admission of these
statements against Rosas violated his confrontation rights.
       Bruton error is not reversible per se, but is instead ―scrutinized under the harmless-
beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24
[17 L.Ed.2d 705, 87 S.Ct. 824].‖ (Burney, supra, 47 Cal.4th at p. 232.) ―In determining
whether improperly admitted evidence so prejudiced a defendant that reversal of the
judgment of conviction is required, we have observed that ‗if the properly admitted
evidence is overwhelming and the incriminating extrajudicial statement is merely
cumulative of other direct evidence, the error will be deemed harmless.‘‖ (Ibid.)
       Apart from the Juarez-Morales conversations, the evidence against Rosas consisted
solely of consciousness of guilt inferences arising from (1) Rosas‘s false statements to the
detectives during the interview in Virginia about when he returned to the United States
after being deported to Mexico in January of 2009 and about not hanging out at 3963
Union Pacific, and (2) Rosas‘s statements to Juarez before and after the sham lineups
reflecting Rosas‘s concern regarding whether there were witnesses, whether the people
Juarez had said accused Juarez on MySpace were ―going to say anything,‖ whether
someone had identified either or both of them during the sham lineups, the identity of the


                                              29
witness brought in to view the lineups, and whether that witness was Claudio. With
respect to the first category, it is far from certain that Rosas‘s consciousness of guilt
pertained to the charged crimes. According to the prosecution, Rosas was an active
member of a criminal street gang who ―patrolled‖ that area and hung out at 3963 Union
Pacific, Rosas had possessed drugs for sale at that location and been arrested there
multiple times. Thus, Rosas may have committed illegal acts at or near 3963 Union
Pacific during 2009 other than the charged crimes. With respect to the second category,
although Rosas‘s statements certainly created a suspicion that he was involved, they are
equally consistent with Rosas having some knowledge of the charged crimes and being
concerned about misidentification as a perpetrator. Other statements he made during his
conversation with Juarez tended to show he was not involved in the charged offenses.
His references to Claudio were not necessarily incriminating because Valento and
Anderson had told Rosas that they were investigating a murder at ―Union Pacific and
Hicks‖ and ―3963 Union Pacific,‖ which is apparently where Claudio lived. We further
note that while Juarez and the prosecutor accused Rosas of being the gunman, the sole
testifying eyewitness testified that the gunman was taller than his accomplice and
appeared to be 5 feet 6 inches or 5 feet 7 inches tall, about 17 years old, and thin. This
description fit Juarez, who was 17 at the time of the offenses, 5 feet 7 inches or 5 feet 8
inches tall, and weighed 150 pounds. Rosas, in contrast, was 22 years old at the time of
the offenses, weighed 165 pounds at the sham lineup, and he was 5 feet 5 inches tall.
       Thus, the properly admitted evidence was far from overwhelming, and we
necessarily conclude that the improper admission of Juarez‘s statements was not harmless
beyond a reasonable doubt and we must reverse Rosas‘s convictions.
       Rosas argues he may not be retried because the properly admitted evidence was
insufficient to support a conviction. The Attorney General does not address this point. In
assessing this issue, we must consider the evidence as a whole, not just the properly
admitted evidence. (Lockhart v. Nelson (1988) 488 U.S. 33, 40–41 [109 S.Ct. 285].)
Considering Juarez‘s accusatory statements along with the remaining evidence, the


                                              30
evidence was sufficient to support the verdicts against Rosas. Accordingly, double
jeopardy does not preclude a retrial.
       Given our disposition, we need not fully address Rosas‘s contention regarding the
trial court‘s instructional errors regarding Juarez‘s statements to Morales. We merely
note that, in addition to its obligation to properly redact the Juarez-Morales conversations
to avoid violating Rosas‘s confrontation rights, the trial court was required to instruct the
jury to consider those statements only against Juarez, and not against Rosas. The trial
court failed to do so, and instead gave instructions pertaining to the testimony of an
accomplice that effectively told the jury it could consider Juarez‘s statements as evidence
against Rosas. These instructional errors necessarily exacerbated the prejudice flowing
from the admission of the improperly redacted statements.
2.     Sufficiency of evidence regarding Juarez
       Juarez contends that the evidence was insufficient to support his conviction
because Rosas was the shooter, meaning Juarez was an aider and abettor or coconspirator,
and nothing the record shows his knowledge of Rosas‘s intent, his intent to aid and abet
Rosas, or any words or conduct by him that aided and abetted Rosas. Juarez implicitly
relies upon his own statement to Morales accusing Rosas of being the actual shooter, and
he expressly relies upon the following statement he made to Morales: ―Cuz when that
shit happened, all I was, I, when the other car, I was, I went like this, I went walking, then
when that fool started, boom, boom, boom, boom, that‘s when I hit the corner and I
started running.‖
       To resolve this issue, we review the whole record in the light most favorable to the
judgment to decide whether substantial evidence supports the conviction, so that a
reasonable jury could find guilt beyond a reasonable doubt. (People v. Tully (2012) 54
Cal.4th 952, 1006.) Substantial evidence is ―‗―evidence that is reasonable, credible, and
of solid value—such that a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt.‖‘‖ (Ibid.) We presume the existence of every fact supporting the
judgment that the jury could reasonably deduce from the evidence and make all


                                             31
reasonable inferences that support the judgment. (People v. Barnes (1986) 42 Cal.3d 284,
303; People v. Catlin (2001) 26 Cal.4th 81, 139.) The theories argued by the prosecutor
are not the exclusive theories that may be considered by the jury. (People v. Perez (1992)
2 Cal.4th 1117, 1126.) Direct evidence of knowledge and intent is rare; generally these
matters must be established by circumstantial evidence and reasonable inferences
therefrom. (People v. Buckley (1986) 183 Cal.App.3d 489, 494–495.)
       One who knows another‘s unlawful purpose and intentionally aids, promotes,
encourages, or instigates the crime is guilty as an aider and abettor of both the offense he
or she intended to facilitate or encourage (the target crime) and any other crime
committed by the person he or she aids and abets that is the natural and probable
consequence of the target crime. (People v. Prettyman (1996) 14 Cal.4th 248, 259, 261.)
An aider and abettor need not have intended to encourage or facilitate the particular
offense ultimately committed, and need not have the specific intent otherwise required for
the offense committed. (Id. at p. 261.)
       The jury may consider facts such as presence at the scene of the crime, and
companionship and conduct before and after the offense, including flight, in deciding
whether a defendant knew of the perpetrator‘s intentions and intended to facilitate or
encourage the crime. (People v. Mitchell (1986) 183 Cal.App.3d 325, 330.)
       The trial court instructed the jury on aiding and abetting and the natural and
probable consequences doctrine, specifying assault with a firearm as the target offense.
The court further instructed on conspiracy principles.
       Viewing the record in the light most favorable to the judgment against Juarez, we
conclude substantial evidence supports his convictions. A multitude of statements by
Juarez establish that he accompanied the perpetrator when the charged crimes were
committed. For example, in his first recorded conversation with Morales, after Morales
said, ―[T]hey have you as a murder, dog, but people are saying that—that I‘m the one that
was with you.‖ Juarez responded, ―You know who it was?‖ Morales asked, ―Who, who
was what?‖ Juarez replied, ―That fool,‖ followed by unintelligible whispering. Morales


                                             32
asked, ―When they were stealing the cars?‖ Juarez replied, ―Ya,‖ which was followed by
―extended unintelligible whispering, after which Juarez said, ―I seen those fools from
Tiempo.‖ ―Tiempo‖ was apparently a nickname for ITC, as Juarez used it several times
in his conversation with Morales. There was some speculation that Martinez, who was on
probation for auto theft at the time of trial, and his companions may have been in the area
to break into cars. A little later Juarez referred to taggers going to Union Pacific to tag,
then said, ―But that fool was over there stealing cars. So I don‘t know. That fool was
trying to hit me. I‘m like, what the fuck.‖ A little later Juarez referred to ITC: ―Some
fool from ITC drop a dime, one of them, I don‘t know who, but . . . .‖ Later, after Juarez
said he got rid of a gun that had been used in a number of crimes, he said, ―Hopefully this
DNA comes back and it‘s negative, I‘m . . . (unintelligible) . . . . Then have my mom say
I was in San Bernardino with her. I‘m done.‖ Soon thereafter, Morales said, ―And I
heard about that fool. That fool from ITC stealing cars and somebody lit em up. They
told me it was some fool . . . (unintelligible) . . . forgot who told me.‖ Juarez responded
in an audible whisper: ―Cuz the Tiempos came out . . . (unintelligible) . . . that was when
we jumped up in [italics added], ‗What the fuck, stop it, . . . (unintelligible) . . . Tiempo.‘
Pow, pow, pow, pow.‖
       Although at the time of the first recorded Juarez-Morales conversation Valento had
said only that DNA was found at the crime scene, not that it was Juarez‘s DNA, Juarez
repeatedly expressed concern about the results of the DNA comparison. He also
wondered how DNA could have been found at the scene, asking, ―But the thing, how,
how could they get the DNA from me? [Italics added.] By, by hair?‖ Juarez began to
say, ―When that shit happened . . . .‖ Morales suggested it might have come from sweat.
Juarez said, ―I, I wasn‘t sweating.‖ Morales asked if Juarez left a glove or shirt at the
scene. Juarez said, ―I didn‘t.‖ A little later, Juarez returned to the question of how his
DNA could be at the scene and referred to how fingerprints could have incriminated him:
―So, what I‘m thinking about, what kind of DNA they got. Like, I think, what I‘m
thinking about is, I didn‘t drop no clothes. Cuz when that shit happened, all I was, I,


                                               33
when the other car, I was, I went like this, I went walking, then when that fool started,
boom, boom, boom, boom, that‘s when I hit the corner and I started running . . . cheeww
. . . I didn‘t touch nothing. I just ran. But I didn‘t touch nothing, though. They don‘t got
fingerprints. Cuz if they had fingerprints . . . (unintelligible) . . . it is. I‘m already, I‘m
already in the system . . . (unintelligible) . . . I just hope to God, I know I didn‘t do that
shit, so, I just hope to God that shit don‘t come back.‖
       In the second recorded Juarez-Morales conversation, after Valento had falsely told
Juarez that DNA testing had revealed that Juarez was there, but Rosas was the shooter,
Morales said, ―They have your DNA.‖ Juarez acknowledged, ―They do.‖ Throughout
this conversation, he expressed a hope that Rosas would not be caught and his confidence
that, if Rosas were caught, he would not confess. Juarez said, ―I know Youngster ain‘t
gonna break. If I‘m ever here when he come, he ain‘t gonna break. He ain‘t, and I know
his priors dog, he not gonna break. I just have to talk to his mom and tell them, ‗Hey, he
has to relocate.‘‖ A little later Juarez said, ―I just need Youngster not to come back over
here.‖ After Morales suggested Rosas would not want to ―stay away for 12 years,‖ Juarez
said, ―He not, he not gonna break. He‘s not gonna say shit.‖ Thus, Juarez‘s statements to
Morales clearly established that he accompanied the perpetrator when the charged crimes
were committed and supported inferences of his consciousness of guilt.
       In addition, a strong inference of consciousness of guilt could be drawn from
Juarez‘s attempts to suppress evidence through his contacts with his friends in 2011,
seeking to have his friends dissuade a ―fool‖ from Maravilla from coming to court and
visit Jesse in order to prevent Jesse or the taggers he knew from testifying against Juarez.
       In addition, Martinez testified that just before the shooting, he heard, then saw, two
men running past his car in the street in the same direction Lopez and Ramirez were
walking. Juarez‘s statements to Morales and attempts to suppress evidence establish that
he was one of the two men. The location of the casings and bullet strike, the gunshot
wound to Lopez, and Martinez‘s testimony support a strong inference that Juarez and the
other man whom Martinez saw running were pursuing Lopez and Ramirez. The jury


                                                34
could infer that Juarez and his companion intended to confront and intimidate Lopez and
Ramirez, probably for reasons related to gang rivalry or gang territorialism. Juarez was a
member of the Indiana Dukes gang, which had written graffiti at 3963 Union Pacific and
tended to hang out near there; Lopez was a member of the ITC tagging crew, which had
also written graffiti at 3963 Union Pacific; and Ramirez was a member of the Gage
Maravilla gang, which was a rival to the Indiana Dukes gang. Martinez saw that one of
the men was carrying a gun, and the jury could infer that if Martinez could see that gun,
the man‘s companion could also see the gun. Thus, if Juarez was not the man who was
carrying the gun, he at least knew that his companion carried a gun as they chased Lopez
and Ramirez. The jury could further infer from the presence of the gun and Juarez‘s
conduct in running with the other man that both Juarez and his companion shared the
intent to, at a minimum, aim the gun at Lopez and Ramirez. (See People v. Asher (1969)
273 Cal.App.2d 876, 891 [jury could infer a planned conspiracy to rob a bar and its
patrons from defendants‘ coordinated actions].) This was sufficient to support a finding
that Juarez, if he was not actually the gunman, knew of and shared his companion‘s intent
to aim the gun at Lopez and Ramirez during a confrontation. And Juarez‘s
accompaniment of the gunman aided the planned armed confrontation because it evened
the numbers of attackers and targets and thus strengthened the attack and its prospects for
success.
       Accordingly, Juarez‘s sufficiency of evidence claim has no merit.
3.     Juarez: constitutionality of section 12022.53, subdivision (e)
       Section 12022.53 provides for a 20-year enhancement, or 25 years if the victim
suffers great bodily injury or dies, for anyone who personally and intentionally discharges
a firearm in the commission or attempted commission of certain felonies, including
murder. (§ 12022.53, subds. (d), (e).) Section 12022.53, subdivision (e) extends these
enhancements to aiders and abettors if the offense is committed for the benefit of a
criminal street gang.




                                            35
       Juarez contends that the imposition of these enhancements under section 12022.53,
subdivision (e) punishes aiders and abettors of crimes committed for the benefit of street
gangs more severely than aiders and abettors of crimes committed for the benefit of
equally dangerous criminal associations, such as drug cartels and terrorist organizations,
and thus violates equal protection.
       To succeed on an equal protection claim, a defendant must first show that the state
has adopted a classification that treats similarly situated persons in an unequal fashion.
(People v. Wilkinson (2004) 33 Cal.4th 821, 836 (Wilkinson).) If a defendant shows such
disparate treatment, the legislation is reviewed differently based upon the nature of the
classification. Strict scrutiny applies where the legislation creates a suspect classification
based upon race or national origin or infringes a fundamental interest. (Ibid.) An
intermediate level of scrutiny applies to classifications based upon gender or illegitimacy.
(Ibid.) At a minimum, a statutory classification must be rationally related to a legitimate
governmental purpose. (Ibid.)
       Juarez argues that strict scrutiny is required here because a fundamental interest—
his liberty—is implicated. Criminal statutes that distinguish among offenders on the basis
of the circumstances of the offense or the manner in which it was committed do not
require strict scrutiny simply because the offender‘s right to liberty is at stake.
(Wilkinson, supra, 33 Cal.4th at pp. 837–838.) A defendant does not have a fundamental
interest in the designation a crime receives or the term of imprisonment provided for a
particular offense. (Id. at p. 838.) ―Application of the strict scrutiny standard in this
context would be incompatible with the broad discretion the Legislature traditionally has
been understood to exercise in defining crimes and specifying punishment.‖ (Ibid.)
       In People v. Hernandez (2005) 134 Cal.App.4th 474 (Hernandez), Division Seven
of this district addressed the issue raised by Juarez and concluded that section 12022.53,
subdivision (e) is rationally related to a legitimate state purpose. The court stated, ―It is
beyond dispute the state has a legitimate interest in suppressing criminal street gangs.
[The defendant] concedes this. He also acknowledges the state has a legitimate interest in


                                              36
punishing criminal gun use more severely than the use of other weapons. . . . [¶] Courts
have long recognized . . . a Legislature ‗acting within its proper field, is not bound to
extend its regulation to all cases which it might possibly reach.‘ It may direct its attention
‗―to those classes of cases where the need is deemed to be clearest.‖‘ In enacting the
street gang legislation in 1988 the Legislature found, among other things, ‗in Los Angeles
County alone there were 328 gang-related murders in 1986, and that gang homicides in
1987 have increased 80 percent over 1986.‘ When the Legislature enacted section
12022.53 10 years later and made aiders and abettors of gang crimes involving gun use
equally liable with the actual perpetrator it did so ‗in recognition of the serious threats
posed to the citizens of California by gang members using firearms.‘ As our Supreme
Court has stated, the Legislature ‗is not prohibited by the equal protection clause from
striking the evil where it is felt the most.‘ [¶] . . . [¶] . . . Where as here the question is
not whether to deprive [the defendant] of his liberty but for how long, we believe rational
basis review, not strict scrutiny, is the appropriate test to resolve an equal protection
challenge. [¶] Clearly the Legislature had a rational basis for imposing a 25-years-to-life
enhancement on one who aids and abets a gang-related murder in which the perpetrator
uses a gun. . . . As we previously observed, the purpose of this enhancement is to reduce
through punishment and deterrence ‗the serious threats posed to the citizens of California
by gang members using firearms.‘ One way to accomplish this purpose is to punish
equally with the perpetrator a person who, acting with knowledge of the perpetrator‘s
criminal purpose, promotes, encourages or assists the perpetrator to commit the murder.‖
(Id. at pp. 481–483, fns. omitted.)
       We agree with the Hernandez court that a rational basis exists for the distinction
drawn by the Legislature. Juarez argues Hernandez was wrongly decided, citing People
v. Olivas (1976) 17 Cal.3d 236 as authority for a strict scrutiny analysis of the
classification drawn by the statute. But, as the Supreme Court explained in Wilkinson,
supra, 33 Cal.4th 821, ―The language in Olivas could be interpreted to require application
of the strict scrutiny standard whenever one challenges upon equal protection grounds a


                                              37
penal statute or statutes that authorize different sentences for comparable crimes, because
such statutes always implicate the right to ‗personal liberty‘ of the affected individuals.
Nevertheless, Olivas properly has not been read so broadly. . . . ‗We do not read Olivas
as requiring the courts to subject all criminal classifications to strict scrutiny requiring the
showing of a compelling state interest therefor.‘ [Citation.] Other courts similarly have
concluded that a broad reading of Olivas, as advocated by defendant here, would
‗intrude[] too heavily on the police power and the Legislature‘s prerogative to set criminal
justice policy.‘‖ (33 Cal.4th at pp. 837–838.) Accordingly, Hernandez properly applied
the rational basis test. We follow Hernandez and reject Juarez‘s equal protection claim.
4.     Juarez: constitutionality of indeterminate sentence
       Juarez, who was 17 when the charged crimes were committed, contends that his
65-years-to-life sentence is unconstitutional pursuant to Miller v. Alabama (2012) 567
U.S. __ [132 S.Ct. 2455] (Miller); Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct.
2011] (Graham); and People v. Caballero (2012) 55 Cal.4th 262 (Caballero). We
conclude the trial court failed to consider the factors required by these decisions and
remand for resentencing in light of these decisions.
       In Graham, the United States Supreme Court considered the constitutionality of
imposing a sentence of life without possibility of parole on a juvenile offender who
committed an offense other than homicide. The court concluded that such a sentence
constituted cruel and unusual punishment. (Graham, supra, 560 U.S. at p. __ [130 S.Ct.
at p. 2030].) The court relied upon studies reflecting that ―developments in psychology
and brain science continue to show fundamental differences between juvenile and adult
minds. For example, parts of the brain involved in behavior control continue to mature
through late adolescence.‖ (Id. at p. __ [130 S.Ct. at p. 2026].) Because juveniles have a
less developed moral sense than adults, the court viewed them as less morally culpable
than adults who commit the same offenses. (Id. at p. __ [130 S.Ct. at p. 2027].) In
addition, the court noted ―[j]uveniles are more capable of change than are adults, and
their actions are less likely to be evidence of ‗irretrievably depraved character‘ than are


                                              38
the actions of adults.‖ (Id. at p. __ [130 S.Ct. at p. 2026].) ―To justify life without parole
on the assumption that the juvenile offender forever will be a danger to society requires
the sentencer to make a judgment that the juvenile is incorrigible. The characteristics of
juveniles make that judgment questionable. ‗It is difficult even for expert psychologists
to differentiate between the juvenile offender whose crime reflects unfortunate yet
transient immaturity, and the rare juvenile offender whose crime reflects irreparable
corruption.‘‖ (Id. at p. __ [130 S.Ct. at p. 2029].)
       In Miller, supra, 567 U.S. at page __ [132 S.Ct. at p. 2475], which was decided
after Juarez‘s sentencing, the Supreme Court relied on Graham‘s rationale in holding that
mandatory life-without-possibility-of-parole sentences for juvenile offenders who commit
homicide violate the Eighth Amendment‘s ban on cruel and unusual punishment. The
court explained that such a sentence necessarily ―precludes consideration of [the
juvenile‘s] chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. It prevents taking into
account the family and home environment that surrounds him—and from which he cannot
usually extricate himself—no matter how brutal or dysfunctional. It neglects the
circumstances of the homicide offense, including the extent of his participation in the
conduct and the way familial and peer pressures may have affected him. Indeed, it
ignores that he might have been charged and convicted of a lesser offense if not for
incompetencies associated with youth—for example, his inability to deal with police
officers or prosecutors (including on a plea agreement) or his incapacity to assist his own
attorneys.‖ (Id. at p. __ [132 S.Ct. at p. 2468].) The court did not foreclose the
possibility of a sentence of life without the possibility of parole in homicide cases for
―‗the rare juvenile offender whose crime reflects irreparable corruption,‘‖ but the
sentencing court is required to consider the potentially mitigating effect of the
aforementioned factors. (Id. at p. __ [132 S.Ct. at pp. 2469, 2475].)
       In Caballero, supra, 55 Cal.4th 262, also decided after Juarez‘s sentencing, the
California Supreme Court considered whether a 110-year-to-life sentence imposed on a


                                              39
juvenile convicted of nonhomicide offenses contravened Graham‘s mandate against cruel
and unusual punishment under the Eighth Amendment, and concluded that it does. (Id. at
p. 265.) The court stated, ―[W]e conclude that sentencing a juvenile offender for a
nonhomicide offense to a term of years with a parole eligibility date that falls outside the
juvenile offender‘s natural life expectancy constitutes cruel and unusual punishment in
violation of the Eighth Amendment. Although proper authorities may later determine that
youths should remain incarcerated for their natural lives, the state may not deprive them
at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness
to reenter society in the future. Under Graham‘s nonhomicide ruling, the sentencing
court must consider all mitigating circumstances attendant in the juvenile‘s crime and life,
including but not limited to his or her chronological age at the time of the crime, whether
the juvenile offender was a direct perpetrator or an aider and abettor, and his or her
physical and mental development, so that it can impose a time when the juvenile offender
will be able to seek parole from the parole board.‖ (Id. at pp. 268–269.)
       Collectively, Miller, supra, 567 U.S. __ [132 S.Ct. 2455], and Caballero, supra,
55 Cal.4th 262, require a sentencing court to consider the matters set forth in Miller and
Caballero before sentencing a juvenile to either life without possibility of parole or an
aggregate sentence that is the functional equivalent of a life sentence without possibility
of parole. (People v. Argeta (2012) 210 Cal.App.4th 1478, 1482.) Juarez was sentenced
to 65 years to life, with actual custody credits of 495 days. He was 20 at the time of
sentencing. Accordingly, he would be approximately 83.5 years old before becoming
eligible for parole consideration. According to the most recent National Vital Statistics
Reports available from the Centers for Disease Control and Prevention, the average life
expectancy for Hispanic males is 78.39 years. (See <http://www.cdc.gov/nchs/data/
nvsr/nvsr61/nvsr61_03.pdf> [as of Oct. 22, 2013].) Thus, Juarez‘s aggregate term is the
functional equivalent of a life sentence without possibility of parole. The trial court in
this case did not offer any reasons for its sentencing decisions regarding either defendant,
let alone consider any of the matters set forth in Miller and Caballero with respect to


                                             40
Juarez. As noted, Miller and Caballero were decided after Juarez‘s sentencing.
Accordingly, we must vacate Juarez‘s sentence and remand for resentencing. The trial
court is directed to exercise its discretion in accordance with the authorities cited and
discussed in this section.
                                       DISPOSITION
       The judgment against Rosas is reversed and the cause remanded for further
proceedings in accordance with this opinion. Juarez‘s sentence is vacated and the cause
is remanded for resentencing in accordance with Miller v. Alabama (2012) 567 U.S. __
[132 S.Ct. 2455] and People v. Caballero (2012) 55 Cal.4th 262. Upon resentencing
Juarez, the trial court is directed to prepare an amended abstract of judgment and forward
a copy to the Department of Corrections and Rehabilitation. In all other respects, the
judgment against Juarez is affirmed.
       NOT TO BE PUBLISHED.


                                                  MALLANO, P. J.
We concur:


       ROTHSCHILD, J.


       JOHNSON, J.




                                             41
