Filed 5/15/13 P. v. Melonson CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


THE PEOPLE,                                                                                  C061352

                   Plaintiff and Respondent,                                     (Super. Ct. No. 05F10198)

         v.

SIRTICE MELONSON,

                   Defendant and Appellant.


THE PEOPLE,                                                                                  C061800

                   Plaintiff and Respondent,                                     (Super. Ct. No. 05F10198)

         v.

SARAH WEEDEN,

                   Defendant and Appellant.




         Seventeen-year-old Navnil Chand, his brother, and two friends approached 14-
year-old defendant Sarah Weeden and some of her friends and struck up a conversation.


                                                             1
Navnil later called Weeden, who arranged to meet him a few days later. Navnil and a
friend, 22-year-old Deovinesh Kumar, arrived at the assignation, where they were met by
defendant Sirtice Melonson and another man. The men ordered Navnil and Kumar out of
the car, and as Kumar opened his door one of the men shot into the vehicle. Navnil was
attempting to open his door when multiple shots rang out. Navnil died of gunshot
wounds; Kumar lost part of his finger.
        An amended information charged Weeden and Melonson with murder, attempted
murder, and attempted second degree robbery. (Pen. Code, §§ 187, subd. (a), 664/187,
subd. (a), 664/211.)1 Weeden and Melonson were tried jointly before separate juries.
Melonson’s jury found him guilty on all counts; Weeden’s jury found her guilty of first
degree murder and attempted second degree robbery, but found her not guilty of the
attempted murder of Kumar.
        The court sentenced Melonson to life in prison without possibility of parole, plus
50 years to life, plus 19 years four months. The court sentenced Weeden to 25 years to
life in prison, plus four years.
        Melonson appeals, contending instructional error, jury misconduct, and the trial
court erred in denying him a mistrial. Weeden appeals, arguing instructional error,
ineffective assistance of counsel, the court erred in removing a juror, the court erred in
denying her motion for a new trial, the court erred in denying her a mistrial, the court
lacked jurisdiction, her sentence constitutes cruel and unusual punishment, and
sentencing error. We shall affirm the judgments.
                   FACTUAL AND PROCEDURAL BACKGROUND
        Following the shooting death of Navnil, an amended information charged Weeden
and Melonson with his murder, the attempted murder of Kumar, and the attempted




1   All further statutory references are to the Penal Code unless otherwise designated.

                                              2
second degree robbery of Navnil and Kumar. (§§ 187, subd. (a), 664/187, subd. (a),
664/211.) The information also charged Melonson with possession of a firearm by a
convicted felon and alleged a prior strike conviction. (§§ 12021, subd. (a)(1), 667,
subds. (b)-(i), 1170.12.) It was further alleged that Melonson murdered Navnil while
engaged in the commission of a robbery. (§§ 211, 190.2, subd. (a)(17).) Finally, the
information alleged Melonson personally used a firearm (§ 12022.53, subd. (d)), and that
Weeden, a principal, was armed (§ 12022, subd. (a)(1)). Both Weeden and Melonson
pleaded not guilty.
       Weeden and Melonson were tried jointly before separate juries. The following
facts were adduced at trial.
The Prosecution’s Case
       One night in July 2005, 17-year-old Navnil Chand, his brother Shavnil Chand, and
two friends, Ashneel Prakash and 22-year-old Deovinesh Kumar, were riding around in
Kumar’s Toyota Camry.2 The vehicle was new and equipped with an in-dash DVD
player, chrome rims, and tinted windows. While driving, they saw four teenaged girls
walking down the street.
       The group of girls consisted of 14 year olds Angela G. and Weeden, and sisters
Christina W. and J.W.3 The boys in the Camry stopped next to the girls. The two groups
conversed. Kumar invited the girls to “party” with them, saying his group had beer and
“weed.”




2 For the sake of clarity we will refer to the Chand brothers by their first names. Those
minors whose identities are not being disclosed herein will be referred to by their first
names or initials only.
3 Angela and Weeden were best friends. Angela was a cousin of J.W., Christina, and 14-
year-old John W. Those cousins were also cousins of 16-year-old Ryan Moore and 17-
year-old Janee Hill. John and Weeden dated during middle school.

                                             3
      The girls demurred and Angela gave Weeden’s cell phone number to Navnil.
After Navnil said he would call Weeden’s number, the boys drove away.
      The girls walked back to Christina’s home. A group of boys hung out across the
street. John was outside with his friends, including Ryan Moore and S.M., defendant
Melonson’s brother. Weeden and Angela talked with the group of boys. Weeden told
them about meeting Navnil and Kumar and that they had said they had beer and weed.
      Ryan Moore and Weeden talked about robbing the boys. Moore asked if Weeden
had their phone number; she told him they had her number. According to Weeden,
“[T]he Hindu guy’s phone number was restricted.”
      A few days later, Moore told Hill that he was considering robbing someone.
Moore stated he was going to rob “[s]ome East Indian boys” for “weed and money.”
      During this period, Angela asked Weeden if they were going to do the robbery.
Weeden replied, “[Y]es.” Angela told Weeden not to do it. According to Weeden, the
robbery would take place at Vintage Park, and would yield money and drugs.
      John heard from Weeden and Angela that there was going to be a robbery.
Weeden asked him to rob the boys they had met the week before. John refused.
      A week later, on August 5, 2005, Weeden called Hill and asked for Angela; Hill
told her Angela was at home. Although Angela was supposed to see Weeden that day,
Angela’s mother forbade her from leaving the house.
      That evening, Weeden called Hill and talked about boys that kept “crank calling”
her phone; she wanted to have them beaten up. Weeden told Hill the boys were trying to
get her to go to a motel. Weeden also told Hill she was going to have Moore rob the
boys, who kept calling her. She told Hill she met the boys while walking with Hill’s
cousins. Moore planned the robbery, which would net Weeden weed and money.
      Hill warned Weeden that robberies can go wrong and bad things can happen.
Weeden responded, “[O]kay.”



                                            4
       Also that evening, Navnil called Kumar and asked him to call Weeden’s cell
phone. Although Kumar called, no one answered. Navnil later called Kumar and told
him he needed money; he said it was urgent but did not tell him what it was for. Kumar
owed him $60. The duo agreed to meet at an ATM to get the money.
       Kumar picked up Navnil, and as the pair drove to the ATM, Navnil talked to
someone on his cell phone, trying to get a room at the Motel 6. Navnil used Kumar’s
phone to call the girl he was meeting. Kumar did not hear Navnil mention drugs or
alcohol.
       Navnil, while talking on the phone, directed Kumar’s route. Navnil told Kumar
the girls they met previously were going to meet them at the park. Navnil made
numerous calls.
       Kumar parked on a side street adjacent to the park, leaving his engine running.
Navnil spoke to a girl who said, “I’ll be there in two to three minutes.” Navnil replied,
“I’m waiting for you over here by the park.” Navnil told Kumar they should leave the car
because the girls told them to go to the park.
The Shooting
       A few seconds later, two men appeared at the front passenger side of the car. The
window was down about five inches. One of the men stuck a handgun in the window and
said, “Mother fuckers, get out of the car.”
       Thinking the man wanted the car, Kumar began to open his door; Navnil did the
same. As Kumar opened the door, the man fired a shot into the car. Kumar saw blood
and thought his hand had been cut by broken windshield glass. He put the car in drive
and sped off, yelling for Navnil to call the police.
       As he drove away, Kumar heard more gunfire. He pulled into a store parking lot
and ran inside the store.




                                              5
       A store security guard saw Kumar’s Camry speeding into the parking lot. Kumar
jumped out and yelled that he had been shot. The store clerk saw Kumar enter the store
and fall to the floor. Kumar then got up and went back outside.
       Kumar went back to the car and shook Navnil, who did not respond. The security
guard saw Navnil sitting upright in the passenger seat, barely breathing. Kumar returned
to the store and again fell to the floor. The clerk went to Kumar’s aid and saw that part of
Kumar’s finger was gone. Kumar said he did not want to die. The clerk locked the store
and the security guard called the police.
Witnesses in the Park
       The evening of the shooting, 13 year olds Brittany R. and Vaughn T. sat on
playground equipment in the park. A car pulled up and two men walked up to the
children.
       One of the men was shorter and heavyset, with short hair and wearing gold teeth.
This man also had light skin. Brittany thought “[h]e looked like he was mixed with black
and white.” Vaughn thought the shorter man looked mixed “Black Mexican.” Brittany
thought the man was 16 or 18 years old, and maybe five feet six inches tall. He wore a
red shirt or sweater and sweat pants or basketball shorts, and carried a backpack.
       The second man was African American. He was tall and skinny, with braids and a
darker complexion. The man wore a “do rag,” a kind of head wrap, on his head. Both
men carried cell phones.4
       The pair sat down next to Brittany and Vaughn. The taller man spoke to a girl on
his cell phone. The shorter man said, “[W]e’re going to make a lick [commit a robbery]”
to the person on the phone.




4  Neither Brittany nor Vaughn identified Melonson from the photographic lineup or at
trial.

                                             6
       One man asked the other, “[A]re these guys gonna get out of the car or what?”
The shorter man told the taller man that the men in the car were Indian, and that Indians
do not carry guns, only Pakistanis do.
       The men asked Brittany and Vaughn to go over to the car and distract the
occupants while they came up from behind. Brittany refused. Vaughn told a detective
the taller man said, “They ain’t trying to get out of the car, let’s go.” The shorter man at
first demurred, but after the taller man insisted, they walked toward the car, approaching
the passenger side.
       The shorter man stood close to the window; the taller man stood back by the trunk.
The shorter man pointed a gun and began shooting into the car through the passenger
window. Brittany heard two or three shots; she did not see anyone get out of the car.
Vaughn heard three or four shots and saw the shorter man shooting at the person inside
the car on the passenger side.
       After the shooting, the two men ran. Brittany and Vaughn ran to Brittany’s house.
       Renice Trujillo, who lived in a court near the park, also heard gunshots that
evening. She looked out her window and saw two people walking quickly into the court.
They were male, tall and lanky. One wore layered red and white shirts. One of them was
talking into a cell phone and mentioned the park. Another neighbor heard five loud pops.
       Doug Reid, another neighbor, heard “extremely loud” gunshots that he thought
sounded like a large-caliber handgun. He looked out his window and saw two young
men walking quickly down the court. One of the men looked Hispanic; the other looked
African American. The Hispanic man wore a dark shirt and a backwards baseball cap,
and carried a backpack. The other wore a red sweatshirt and a do-rag.
       Reid saw the two men jump onto the wall at the end of the court. The men looked
around and the Hispanic man dropped the backpack, which appeared to be heavy. The
men jumped off the wall and walked away. Reid described the men as suspicious; he



                                              7
also identified the backpack and sweatshirt found next to the wall as those worn by the
men.
       Daniel Albano, another nearby resident, heard three or four gunshots. He looked
out the window and saw two individuals running toward his house. One wore a red or
orange sweatshirt and long shorts, and was around five feet seven inches tall and slender.
The other person was dressed in black.
       Finally, Thorlakur Tryggvason, who also lived in the area, heard five gunshots
coming from the park. Looking out his window, he saw one female and five males
running from the park. Two of the males ran past his house, entered the next cul-de-sac,
and jumped the fence at the end of the court. He described the males as teenagers, either
Asian or Hispanic and African American, of average height and build.
Weeden’s Activities the Night of the Murder
       Weeden called Hill repeatedly that night to have her get in touch with Moore.
Weeden asked Hill to call Moore and find out where he was. Moore said he was on his
way home. Weeden called later, again asking where Moore was. Moore said he was
getting a ride from defendant Melonson and did not seem surprised that Weeden wanted
to know where he was.
       While Hill spoke with Weeden, the boys she had met that night kept “buzzing in”
on Weeden’s phone. Weeden told Hill to ask Moore whether he was at the park. Moore
said he was at the big park, and after Hill told Weeden, she said “[O]kay.” Weeden told
Hill to ask Moore if he saw the boys at the park and if he saw the boys’ gold car. Moore
did not see the car.
       Weeden told Hill to tell Moore to go to Caymus Park. Weeden then told Hill to
ask Moore if he saw the boys at that park, and Moore said he saw a gold car. Weeden
said, “[T]hat’s them.” Weeden told Moore there had been two or three boys in the car.
Hill spoke to Melonson once or twice on Moore’s phone. Moore hung up and Hill did
not speak with him again that evening.

                                            8
       Later that evening, Melonson called Hill and told her to keep quiet if anyone asked
questions and to turn off her phone. Angela told Hill someone had been shot. Hill tried
to contact Moore but could not reach him. Hill also called Weeden, but Weeden had not
heard from Moore. A week or two after the murder, Melonson called Hill and told her
not to talk to the police.
The Aftermath
       Sheriff’s deputies responded to the shooting. Navnil sat bleeding and
unresponsive in the front passenger seat. The Camry had broken glass and bullet holes
on the passenger side.
       Kumar lay on the floor of the store, covered in blood. Kumar told responders the
shooting had occurred at a nearby gas station. He described the assailants as two dark-
skinned black males wearing shorts.
       Navnil suffered gunshot wounds to his back and hand. The fatal wound was
caused by a bullet that entered his back and perforated his lung and heart. The entrance
wound was irregularly shaped, which indicated the bullet struck something before
entering Navnil’s body. Navnil did not have drugs or alcohol in his system. Kumar had
been shot in the finger, losing part of it.
The Investigation
       Detectives Christopher Joachim and Grant Stomsvik were assigned to investigate
the shooting. Their examination of the Camry revealed the car had very dark tinted
windows, after-market rims, and low-profile tires.
       The passenger-side windows were shattered and the car had four or five bullet
holes. The right rear passenger window and the right front passenger window had bullet
holes. Other bullets passed through the right rear passenger door and the base of the right
front passenger window. Two of the bullets appeared to have been shot either as the car
was moving away or the shooter was moving toward the rear of the vehicle.



                                              9
       The investigation also revealed damage to the Camry’s interior. The windshield
had been hit and blood was pooling in the center console area. A cell phone charger was
plugged into the cigarette lighter. Copper jacketing from a bullet was also found inside
the car.
       Detectives found a bullet fragment on the driver’s seat between the seat and the
back cushion. In Detective Joachim’s opinion, based on the physical evidence and
witness statements, there was one shooter and one gun, and all the shots came from
outside the vehicle.
       The investigation also revealed Kumar’s wallet on the Camry’s floorboard. It
contained a debit card but no cash.
       Kumar talked to the police at the hospital. Although Kumar initially said the
shooting took place at a supermarket gas station, he testified that he had lost a lot of
blood and was not thinking clearly at the time.
       The next morning, after police told Kumar about Navnil’s death, Detective
Stomsvik drove Kumar back to the park. Kumar told the detective that Navnil talked on
his cell phone to a girl who told him to go to the park. Navnil told the girl he was at the
park, and Kumar heard the girl reply that she could be there in two or three minutes.
Kumar heard the girl tell Navnil to sit on a bench.
       After Kumar parked, two men came up to the passenger-side window of his car.
Kumar saw a gun come through the window, and the person said, “[G]ive me everything
you have and step out of the car.” As Navnil opened the door, he hit the man’s arm.
       The man fired one shot that Kumar thought hit the windshield. Kumar started to
drive away as more shots were fired. The shooter was a fair-skinned Asian male, 18 to
20 years old, five feet nine inches tall with a heavy build, and wearing an orange shirt.
However, Kumar could not identify either of the two suspects in a photo lineup.
       The morning after the shooting, Doug Reid approached a deputy securing the
crime scene at the park. Reid told the deputy he knew something about the shooting and

                                             10
took the deputy to his nearby home. Reid showed the deputy the wall that someone had
scaled the previous evening.
       The deputy drove around to the other side of the wall and discovered a revolver, a
backpack, and a red sweatshirt in the vegetation along the wall. The backpack contained
shorts, boxer shorts, a pencil, and razors. The DNA extracted from one of the razors
matched Melonson’s genetic profile.
       The revolver held six rounds but contained only one casing when found. Officers
found five empty shell casings loose on the curb. DNA extracted from the revolver’s grip
contained a mix of DNA from at least three individuals. Melonson was excluded as
being a possible contributor to this mixture.
       A forensic expert testified the bullet recovered from Navnil’s body could not be
matched to a particular gun because the bullet core did not make contact with the barrel
of the weapon or the barrel’s rifling. Nor could the lead fragment recovered from
Navnil’s body be matched.
       The forensic expert test-fired the revolver found by the wall to compare it with
evidence found at the scene. Three of the casings found by the wall were fired by the
revolver. Two other casings were likely fired by the revolver. The copper jacketing
found in the Camry was likely fired by the revolver.
Melonson’s Arrest
       About a month later, officers searched the home of Melonson’s uncle, where
Melonson sometimes stayed. Officers found six boxes of Winchester .357-Magnum
shells in the garage; five boxes were full, containing 50 cartridges, and one box contained
only 48. Melonson’s uncle testified that his garage had been broken into months before
and three boxes of shells were stolen.
       One of Melonson’s friends, Shakti Rana, owned a .357-caliber revolver, which
looked like the gun found in the bushes near the park. Melonson’s brother, S.M., stated



                                                11
that Melonson and Rana shared a gun in July and August 2005 but denied the gun found
in the bushes was the same gun.
      Melonson’s girlfriend, Julie G., had been dating him for about a year at the time of
the shooting. Julie gave Melonson a backpack, which he used to carry clothes and
toiletries. She identified the backpack found in the bushes as the backpack she gave
Melonson. Julie identified the shorts found in the backpack as belonging to Melonson.
That summer, Melonson told Julie someone had stolen his backpack.
      Gabrielle Perez, a friend of Melonson, was driving home one evening in 2005
when she saw police in her neighborhood. Later that night, Melonson sent Perez a text
message stating he had “popped someone” and needed to talk. Melonson called Perez the
next morning and told her he shot someone and threw away his “piece.” He feared that if
the police found it they would find him. Cell phone records showed the text message was
sent and the call was made on August 5 and August 6, 2005. Melonson changed his
phone number a few days later.
      Melonson’s friend Chris Butler moved from Sacramento to Denver, Colorado, in
2005. While in Sacramento, Butler had a cell phone that did not provide service in
Denver. He got a new phone in Denver and left his prepaid cell phone with his girlfriend.
Butler’s girlfriend did not know Julie, Perez, Moore, Rana, or Hill. Butler was in Denver
from July to early September 2005. He went to pick up Melonson at a bus terminal in
Denver in November 2005, but officers arrested Melonson at the station.
      When arrested at the bus station, Melonson was 20 years old, five feet seven
inches tall, and 185 pounds. Melonson carried a cell phone, prepaid calling card, and a
one-way bus ticket to Denver in the name of “Mr. Brown.” During the booking process,
Melonson told officers he was “not looking for the best deal in the world. He was
looking to make sure he got out of prison by the time he was 45 or 50.”
      The prosecution presented extensive evidence of numerous phone calls and text
messages among the various parties.

                                           12
Cell Phone Calls
       Cell phone records for Navnil’s, Weeden’s, Melonson’s, Moore’s, Hill’s, and
Kumar’s phones were introduced.5 The phone number for Melonson’s phone was
changed on August 6, 2005, and again on September 7, 2005. Weeden changed her
number after the murder.
       Numerous phone calls were made by Navnil to Weeden beginning late on the
evening of July 29, 2005, and ending on the night of the shooting. The calls were very
brief and many went straight to voice mail.
       Late in the afternoon prior to the shooting, Navnil began calling Weeden from his
cell phone. There were also several calls to Weeden from Kumar’s cell phone. Navnil’s
cell phone blocked caller identification, preventing the recipient from identifying the
caller. Twenty-nine calls were placed to Weeden from Navnil’s and Kumar’s phones;
she did not answer 13 of the calls. The calls continued up until the time of the shooting.
       Navnil called Weeden for the last time at 10:59 p.m., but Weeden was already on
the phone with someone else and did not answer. At 11:03 p.m., Navnil called 911.
Navnil made no calls to Melonson, Moore, or Hill.
       Shortly after the first call from Navnil on the night of the murder, Weeden and Hill
began calling each other. There was a 41-minute phone call from Weeden’s cell phone to
Hill’s home phone that ended at the time of the murder. Immediately after the murder,
there was a 26-minute phone call between Weeden’s cell phone and Hill’s cell phone.
Later in the evening there were a few brief calls between Weeden’s cell phone and Hill’s
cell phone. Weeden did not call Navnil or Melonson.
       Moore first called Melonson the day before the murder. Melonson returned the
call. Melonson called Moore at 6:07 the evening of the shooting. There were 17 calls



5 The subscriber on Melonson’s phone was actually Chris Butler, who, as noted
previously, had given the phone to Melonson when Butler moved to Denver.

                                              13
between Moore and Weeden on the night of the murder. The calls began when Moore
called Weeden at 9:30 p.m. and then called Melonson at 9:31 p.m. The calls between
Moore and Melonson ended at 10:06 p.m. The calls between Moore and Weeden ended
at 10:42 p.m.
       Hill called Moore 18 times the night of the murder. The calls began about
12 minutes before the murder and continued after the murder. Moore never called Hill.
       Cell phone tower data showed Moore’s and Melonson’s phones were being used
in the area of the park between 10:00 and 11:00 p.m. the night of the murder. Navnil’s
cell phone was in the vicinity of the park at 11:00 p.m. Hill’s and Weeden’s cell phones
were in a different part of town.
       At 11:04 p.m., immediately after the murder, Melonson called Rana. Numerous
calls between the two followed. Melonson also tried to call Perez one to two hours after
the shooting. They spoke briefly the morning after.
Text Messages
       In November 2005 Detective Joachim directed Moore to send a text message to
Weeden over their cell phones. Another officer took a photo of each message.
       Weeden told Moore she was moving to Los Angeles. Moore said, “[O]h, you
movin’ because of what happened with the Sirtice thingy,” and Weeden answered, “Nah,
I don’t even really care about that, but den I kind of do because someone keep [sic]
calling me saying they gonna kill me. I wasn’t even the one that told on him.”
       Moore asked Weeden if she had told her father about what Moore had done.
Weeden responded: “[N]o, all I told him was you my friend and you didn’t do anything.”
Moore falsely told Weeden that in order to get a deal, Melonson had told the police about
what she and Moore had done. Weeden asked what kind of deal Melonson made and if
Moore was going to be arrested.
       Moore said it was all Weeden’s fault because she met the “hindus.” Weeden
responded: “[D]is ain’t my fucking fault. Sirtice should [sic] have done what he did. He

                                            14
brought you into that by doing that. This shit wasn’t my fault, so don’t even fucking say
it was.” Weeden said, “[I]t’s Angie’s fucking fault, dummy. She da one that went to the
car and gave them my number.”
       Moore replied: “[I]t was yo fucking idea to even rob them.” Weeden denied this
and blamed Angela, asking Moore, “Why you trying to put this on me? It wasn’t my
fucking idea. It was Angie’s, so shut up. They already know it was.”
       Weeden continued: “I didn’t set nuttin’ up.” She admitted knowing Melonson
was going to rob the boys: “I already fuckin told them I knew Sirtice was going to rob
them. They already know what I did. I told the truth, but I didn’t set this up, okay.”
Weeden said she was “hella scared” and did not want either of them to go to jail.
       Moore asked Weeden what she had told the police about the robbery and she
replied: “I told them that someone told me to tell them to meet me at the park, and that
Sirtice was gonna be there to rob them, but I didn’t tell them who told me to set it up.”
Weeden blamed Hill, saying, “And you know dis all Janee fault because she told them
some shit, then they got her phone records and mine den yours.” Weeden advised
Moore: “If you want to get out of this, you have to give up Angie’s name.”
Statements by Participants
       Angela G.
       In November 2005 Detective Joachim interviewed Angela about the night of the
murder. Angela told the detective that Weeden was telling everyone about the previous
meeting with Navnil, Kumar, and the other boys. She said the boys had weed and beer.
       Weeden talked extensively to Moore about meeting the boys. Moore suggested
they rob them. Weeden agreed and said, “[Y]eah, we should.” Moore asked Weeden if
she had the “Hindu guy’s” number and she told him he had her number. Angela told
Weeden not to do the robbery, but Moore said he and “Teze” should rob the boys.




                                             15
       After Angela passed the victim’s car, she asked Weeden if they went through with
the robbery. Weeden denied it. After the murder, Weeden did not want to discuss it over
the phone.
       John W.
       In December 2005 Detectives Joachim and Stomsvik interviewed John. John
indicated Weeden planned out the robbery. He overheard Weeden telling Angela about
someone Moore was going to rob.
       Janee Hill
       Detectives also interviewed Hill in December 2005. The day before the murder,
Moore told Hill he was planning to rob someone. Hill attempted to dissuade Moore by
telling him robberies often end up in murder. Moore agreed and told Hill he was not
going to rob them. Later Weeden told Hill that Melonson and Moore were going to
commit the robbery.
       The night of the shooting, Weeden called Hill and had her talk to Moore to find
out where he was. Moore or Melonson directed Hill to ask Weeden about what the boys
were driving and which park they were going to. Hill believed Weeden, Melonson, and
Moore had the robbery planned before Hill became involved. Initially Moore and
Melonson went to a different park but relocated when they realized which park the boys
were at.
       S.M.
       In November 2005 Detective Stomsvik interviewed Melonson’s brother S.M.
S.M. stated that Melonson and Rana bought a gun together. He recognized the gun found
in the bushes as Melonson’s gun and the sweatshirt found in the bushes as a sweatshirt
that he and his brother wore. S.M. also identified the backpack, the razors, and the shorts
as his brother’s.




                                            16
       In a second interview, S.M. said he was at a park near Rana’s house with Rana,
Moore, and Shatez the night of the shooting.6 Moore gave his phone to Melonson, who
sent a text message to Julie. Melonson then gave the phone back to Moore. At that time,
Melonson was using two phone numbers: Butler had given him his phone after he
moved. The night of the murder, S.M. was not with Melonson but was “laser bowling”
with friends and his brothers Idrice and Shatez.
       Following the shooting, Melonson, Shatez, and Rana told S.M. he needed to find
Rana’s gun. S.M. searched for the gun in the bushes three times after the murder.
Accompanied by Shatez, Moore, and John, S.M. failed in several attempts to find the
gun.
       Shakti Rana
       A district attorney investigator interviewed Rana in July 2007. Rana stated he and
Melonson had a gun that they “passed back and forth.” Rana had the gun the day before
the shooting, then gave it to Melonson because Melonson said he “wanted it for
something.” Rana identified the gun found in the bushes as the gun he and Melonson
shared.
       The night of the shooting, Melonson called Rana and asked for a ride. Melonson
sounded shaky on the phone. Rana picked up Melonson and another person who “looked
nervous and stuff. . . . [¶] . . . [¶] . . . It looked like something went down.” According
to Rana, “I knew something was wrong just the way he was acting . . . . He was just
real . . . I never seen him like that. He was real shaky, panicky . . . .”
       Melonson did not say much “because he was just on the hush-hush.” Although
Melonson did not mention the murder, Rana stated, “[H]e knows what he did was wrong.
You know what I’m saying? He knew that . . . we was good enough friends to know that



6 Melonson’s brother Shatez is referred to in the record as Shatez, Shateze, Tezi, and
Tezzi.

                                               17
he knew exactly what I meant by like how the hell you going to put me in a position
without letting me know?”
          During the trial, Idrice, who lived with S.M. and Melonson’s uncle, visited Rana,
who was in jail on contempt charges, to discuss his testimony.7 Idrice tried to dissuade
Rana from testifying, telling Rana that if he testified and only rapped “one verse,” that
Rana’s prior statements to detectives would be admitted into evidence and “[i]t will be
bad.” Idrice told Rana, “[I]f they have your music and your . . . name is on the track, it’s
the audience, your fans, your fans is going to be like, oh, wow. Automatically.”
          Idrice told Rana he could be out of jail in a few weeks. Idrice suggested to Rana:
“[y]ou can rap the . . . five lyrics, you know what I’m saying, the five?” Rana said he
needed to take care of his daughter, and Idrice responded: “If you need money on your
books, let us know. [¶] . . . [¶] . . . We’re going to take care of you . . . .” Idrice offered
to get diapers and told Rana, “Sacrifice is the ultimate key.”
          Rana told Idrice: “I slipped up and must have just said a little extra, a little few
little verses here and there. I slipped up, but I know for a fact everybody else was way
worse . . . . [¶] . . . [¶] . . . My song wasn’t that good, but it’s good. It’s still solid, sort of
solid.”
          Rana told Idrice to tell “Cuzzie” that he had Rana’s “dope” and to “keep flipping
and doubling it.” Idrice told Rana, “It’s all up to you right now. [¶] . . . [¶] . . . This is
going to determine everything.” Idrice also told Rana everybody was counting on him,
even “the white boy downstairs.”




7   The jury heard a tape recording of the conversation.

                                                18
Melonson’s Phone Call
        During the trial, Melonson spoke to his mother and Idrice by phone. Melonson
asked his mother, “[H]ow’s it lookin’ from the audience point of view?” His mother told
him it looked good and Melonson replied: “[A]in’t nobody identify me . . . as the dude.”
        Melonson’s mother told him to stop talking about the case and said, “they can’t
convict you with the evidence they got.” His mother mentioned Kumar, noting “He
scared. He don’t know. He . . . got no family up there with him. Nobody’s helping
support this.”
        Melonson’s mother also stated, “The DA’s case is tankin’ really fast. [¶] . . . [¶]
. . . the witnesses that the State is calling are not doing what . . . the State want them to
do.” Melonson told his mother, “I know. . . . [¶] . . . [¶] . . . Everything [is] going my
way.”
        Melonson also told his mother that he frequently looked at the jury because he did
not want the jurors to think he was trying to avoid them. He asked his mother whether he
looked mad, and she reassured him that he looked very calm.
        Melonson and his mother discussed the prospect of Rana’s testimony. Melonson
said he needed to talk to “Dreecy.” Melonson told his mother, “Tell him . . . this is the
biggest visit I’m gonna have with him . . . . [¶] . . . [¶] . . . Cuz my case is looking too
good for him to slack on me right now.”
        Melonson asked his mother to tell “Dre” that “I need them to come . . . to court on
Monday when Shakti on the stand -- because that’s they [sic] best friends.” Melonson
also asked his mother to tell “Dre” not to “be coming up here looking like no damn thug
like he was today.”
        Melonson’s mother asked him, “You ain’t admitted to nothin’, right?” He
responded, “Heck, no.”
        Melonson also mentioned his remark during booking about hoping to get out
before he was 40 or 50 years old and said, “I’ll damage control that . . . . I might have to

                                               19
get on the stand myself.” Melonson also reassured his mother about his attorney’s
capabilities. Idrice visited Melonson in jail the following day and a few days after that.
Defense Case
       The defense called character witnesses who testified that Weeden’s character was
not consistent with someone who would set up a robbery. Kim Gibson, a family friend
who had known Weeden her whole life, testified Weeden did not have the character of
someone who would set up a robbery. Gibson described Weeden as a “generous,
considerate, loving person.”
       Linda Matson, whose children Weeden babysat, also testified Weeden was not
capable of planning a robbery because Weeden had “always been a very sweet person,
very responsible, just nice, kind, not nobody that would do something like that.”
       Weeden’s great-aunt testified that Weeden would not set up a robbery because she
was a “kind, caring, bashful, shy, young lady, and she cares about others. She’s
considerate. She minds her parents. She’s just a good girl.” Weeden’s grandmother
echoed these sentiments, stating Weeden would not engineer a robbery because she was
“much too caring and much too kind, considerate. She would never do that.”
Verdict
       The Melonson jury found him guilty on all counts and found all enhancement
allegations true.8 Two days later a juror from Weeden’s panel was discharged for
misconduct and replaced by an alternate. Five days after that, a second juror was
discharged for misconduct and failure to follow the court’s instructions, and was replaced
by an alternate.
       That day, after the second juror was replaced, the jury found Weeden guilty of the
first degree murder of Navnil and the attempted second degree robbery of Navnil and



8Melonson filed a motion for the release of juror information. The court denied the
motion following a hearing.

                                             20
Kumar, and found the arming enhancement allegations true. The jury found Weeden not
guilty of the attempted murder of Kumar.
Motion for a New Trial
       Weeden filed a motion for a new trial, arguing (1) jurisdiction of the trial court
was improperly invoked, (2) ineffective assistance of counsel based on counsel’s failure
to call Weeden to testify and counsel’s failure to have Weeden examined by a
psychologist, (3) Weeden was denied a fair trial by her inability to testify effectively due
to her age and immaturity, (4) instructional error, (5) improper removal of a juror,
(6) juror misconduct, and (7) new information revealed a juror was improperly seated.
Following a hearing, the court denied the motion.
Sentencing
       The court sentenced Melonson to life in prison without the possibility of parole,
plus 50 years to life, plus 19 years four months: life without parole for first degree
murder, plus 25 years to life for the firearm use enhancement; 18 years, to be served
consecutively, for attempted murder, plus a consecutive 25 years to life for the firearm
use enhancement; and 16 months, also to be served consecutively, for possession of a
firearm by a convicted felon. On the attempted second degree robbery counts, the trial
court imposed and stayed, pursuant to section 654, a sentence of 16 months, plus a term
of 25 years to life for the firearm use enhancements as to those counts. Melonson filed a
timely notice of appeal.
       The court sentenced Weeden to 25 years to life in prison, plus four years: 25 years
to life for first degree murder, plus one year for the firearm use enhancement; and two
years, to be served consecutively, for attempted second degree robbery, plus one year for
the firearm enhancement. On one robbery count, the court imposed and stayed, pursuant
to section 654, the midterm of two years, plus one year for the firearm enhancement.
Weeden filed a timely notice of appeal.



                                             21
                                      DISCUSSION
                                MELONSON’S APPEAL
Instructional Error
       Melonson argues the trial court erred in instructing the jury on accomplice liability
in violation of his rights under the Sixth and Fourteenth Amendments to the United States
Constitution. According to Melonson, the court erred by failing to refer to all possible
accomplices, omitting S.M. and Rana. In addition, Melonson faults the court for not
instructing that Angela and Hill were accomplices as a matter of law.
       Background
       Melonson’s counsel requested that the court give the accomplice testimony
instruction, CALCRIM No. 334, applying it to Hill, Angela, and S.M. Counsel argued
that, based on the trial testimony, the jury could believe one of two things: either S.M.
shot Navnil, or he knew of the intended robbery and aided and abetted it. S.M. was
present or nearby when Weeden and Moore discussed the robbery. He also admitted
being in the park on the night of the murder. In addition, counsel pointed out that S.M.
matched the description of the shooter and admitted handling the gun.
       The prosecution countered that, at most, S.M. was an accessory after the fact in his
fruitless search for the weapon after the shooting. No evidence, the prosecution
maintained, pointed to S.M. as the shooter, and S.M. was at a different park prior to the
shooting.
       The court denied defense counsel’s request, noting: “I agree that there is
testimony that at some point in time he touched that gun. There is testimony that he
overheard and might have overheard that a robbery was going to be committed, although
I think that is fairly murky . . . clearly the law is you can know about a crime being
committed and do nothing to aid, facilitate, encourage or promote. There is no criminal
liability, and I think 334 is an instruction required where you clearly have an accomplice
or at least an arguable accomplice. I don’t see [S.M.] as an arguable accomplice. He is

                                             22
certainly an accessory after the fact. The jury is going to be given instructions that will
cause them pause when they consider his testimony and rightfully so. [¶] In addition to
just the general credibility instruction that they will be given, I think you have ample
evidence and circumstantial evidence to argue the questionable nature of [S.M.’s]
testimony. I do not think, however, that he is an accomplice under the 334 instruction, so
I will decline to give that instruction.” The court instructed pursuant to CALCRIM
No. 334 as to Angela and Hill.
       Discussion
       Section 1111 states: “A conviction cannot be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof. An
accomplice is hereby defined as one who is liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.”
       If there is evidence from which the jury could find that a witness is an accomplice
to the crime charged, the court must instruct the jury on accomplice testimony. The
defendant bears the burden to prove, by a preponderance of the evidence, that a particular
witness was an accomplice whose testimony requires corroboration. (People v. Williams
(1997) 16 Cal.4th 153, 247.)
       A witness’s mere knowledge of a defendant’s criminal intent, without more, does
not satisfy this burden. Nor is the witness’s presence at the scene, or failure to prevent a
crime, sufficient to demonstrate guilt as an aider and abettor. (People v. Nguyen (1993)
21 Cal.App.4th 518, 529-530.)
              Angela G. and Janee Hill
       Melonson argues the court erred in not instructing that Angela and Hill were
accomplices as a matter of law. Whether or not a witness is an accomplice is a question

                                             23
for the jury, unless there is no dispute as to the facts or the inferences to be drawn from
the facts. The trial court may determine a witness is or is not an accomplice only when
such facts are clear and undisputed. (People v. Anderson (1987) 43 Cal.3d 1104, 1138;
People v. Rodriguez (1986) 42 Cal.3d 730, 759.)
       According to Melonson, the “record leaves no room for any determination bu[t]
that both Grace and Hill were liable for prosecution as aider and abettors of the robbery
plan and the natural and probable consequences theory of liability.” We disagree.
       As for Angela’s connection to the crimes, she was with Weeden when they met
the victims and gave Weeden’s cell phone number to Navnil. Angela overheard Weeden
and Moore discussing the robbery and was aware of the plan because of her relationship
with the duo.
       However, when Weeden told Angela about the plan to rob the boys, Angela
attempted to dissuade her, to no avail. Angela was not with Weeden, Moore, Hill, or
Melonson the night of the murder; instead, she was at home. There is no evidence she
communicated with any of the participants. Angela testified she did not know if “they
were gonna do a robbery or not.”
       Although Melonson argues the evidence reveals Angela knowingly and
intentionally aided and abetted in the murder, such liability depends upon whether the
individual promotes, encourages, or assists the perpetrator and shares the criminal
purpose. “It is not sufficient that he merely gives assistance with knowledge of the
perpetrator’s criminal purpose.” (People v. Sully (1991) 53 Cal.3d 1195, 1227 (Sully).)
Here, although Angela was aware of the robbery plan, there is no evidence to support the
inference that she shared Melonson’s criminal plans.
       Similarly, Hill’s participation does not rise to the level of an accomplice as a
matter of law. Hill heard from Moore about the scheme to rob the boys the day before
the shooting. The night of the shooting, Weeden told Hill she was going to help Moore
rob the boys. Hill testified, “I really didn’t understand they was gonna rob the boys.”

                                             24
Hill told Weeden not to do it but remained involved by relaying information by phone
among Weeden, Moore, and Melonson. Hill, as instructed by Weeden, directed Moore
and Melonson to the right park and gave them information about the prospective victims.
Hill was charged with murder and robbery, and tried as an adult. She pleaded guilty to
the robbery charge and agreed to testify in court.
       Hill knew of, and assisted, Weeden in the planning of the robbery, but it is not
clear and undisputed that she shared Melonson’s criminal purpose. (Sully, supra,
53 Cal.3d at p. 1227.) Whether or not Hill was an accomplice was properly left to the
jury to determine; the evidence did not support an instruction that Hill was an accomplice
as a matter of law.9
              Shakti Rana and S.M.
       Melonson also contends the trial court erred in excluding Rana and S.M. in the
accomplice instruction. According to defendant, the trial court should have instructed
that the jury needed to determine whether S.M. and Rana were Melonson’s accomplices
and, if they were, that their testimony should be viewed with distrust. At trial,
Melonson’s counsel requested that S.M. be included in the accomplice instruction but did
not include Rana in the request.
       The trial court has the duty to instruct the jury sua sponte to determine whether a
prosecution witness was an accomplice if supported by the evidence at trial. (People v.
Zapien (1993) 4 Cal.4th 929, 982.) The evidence must be substantial, not speculative.
(People v. Lewis (2001) 26 Cal.4th 334, 369.)




9 Nor does the fact that Hill pleaded guilty to robbery change our conclusion. Such a plea
does not, in and of itself, determine her status as an accomplice. It remains a question for
the jury. (People v. Martinez (1982) 132 Cal.App.3d 119, 130; People v. Williams (1970)
10 Cal.App.3d 638, 641.)

                                             25
       As evidence of Rana’s status as an accomplice, Melonson argues Rana gave him
the gun the day before the murder. However, Rana testified he did not know why
Melonson, with whom he shared the gun, wanted it. Although Rana picked up Melonson
after the shooting, Melonson never told him about the crime. Rana thought Melonson
had been in a fight. Rana’s involvement in the shooting did not amount to encouraging,
facilitating, or assisting in the robbery. The trial court did not err in failing to instruct
that Rana might be considered an accomplice.
       Similarly, S.M.’s involvement did not support an accomplice instruction. S.M.
knew of the robbery plan and helped look for the gun after the shooting, but there is no
evidence that he shared Melonson’s criminal purpose. His knowledge before the crime
and assistance after the crime did not make him an accomplice. Again, the court did not
err in failing to include S.M. in the accomplice instruction.
Potential Juror Misconduct
       Melonson argues the trial court abused its discretion in denying his petition for
access to juror information. Melonson posits two instances of potential juror misconduct,
which he contends necessitated the release of juror information. In the first, Gabrielle
Perez’s mother signaled to her daughter that she should change her testimony. In the
second, Weeden told her counsel that she saw a member of Melonson’s jury reading the
Sacramento Bee on December 3, 2008, during deliberations. Melonson contends the trial
court’s denial of his request for juror information violated his Sixth and Fourteenth
Amendment rights.
       Background
       Prior to sentencing, Melonson filed a motion for release of juror information to
determine whether juror misconduct had occurred. Melonson’s counsel attached a
declaration stating that following the verdict, he spoke with a juror who told him that
“while prosecution witness Gabrielle Perez was testifying, a woman he believed to be her
mother was present in the back of the court room, signaling to her daughter during a

                                               26
specific portion of the testimony that her testimony should be changed.” According to
counsel, this occurred while Perez testified regarding the date on which she received text
messages from Melonson about the shooting. The juror stated he believed several other
jurors observed the conduct.
           The second instance of potential misconduct occurred on the morning the jury
returned its verdict. Weeden saw a juror in a hallway of the courthouse reading the
Sacramento Bee, then passing a portion of the paper to another juror. That issue of the
Sacramento Bee contained an article on the trial which quoted text messages that had
been excluded at trial. Defense counsel did not know if either juror read that particular
article.
           In opposing the motion, the prosecution argued the first instance of alleged
misconduct was spectator misconduct, not juror misconduct. The prosecution stated it
was obvious Perez was mistaken on the date but that other evidence, including the
detective’s testimony and cell phone records, revealed the message was sent a few hours
after the shooting. As to the second alleged instance of misconduct, defense counsel
presented no evidence any juror read the article in question. Defense counsel requested
permission to explore how many jurors witnessed the spectator’s attempt to influence
Perez’s testimony, and to determine whether any jurors read the article.
           The court denied the motion. The court reasoned that the jury had been instructed
with CALCRIM No. 222, which directed it to consider only the evidence presented at
trial. Therefore, “an attempt by a spectator to coach a witness is not contemplated in that
jury instruction. And case law is clear that jurors are presumed to have followed the
Court’s instructions if properly instructed as this jury was. [¶] Whether a person in the
audience attempted to or did coach a witness is not misconduct by a juror. Had this Court
observed such behavior, that person would have been removed and the jury given an
admonishment as one spectator was during the testimony of John Williams. [¶] In any
event, it is the Court’s recollection that [defense counsel] did an excellent job at

                                                27
questioning the witness on the date and times of the relevant text calls, and
notwithstanding significant evidence to the contrary and . . . even if this Court was to
presume coaching by a spectator, the witness continued to believe that these text
messages and phone calls were received at a time that was contradicted by the better
evidence in the case, which was phone records from the cellular carrier. [¶] Regardless,
the jury did not commit misconduct even if they observed a witness being coached.
Evidence Code Section 1150 expressly excludes evidence to show the effect of such
statement, conduct, condition or event upon a juror either influencing to assent or dissent
from the verdict, or concerning the mental processes by which it was determined. [¶]
This allegation, even if true, would require an inquiry into the mental processes of the
jurors and, as such, would not constitute good cause to unseal the confidential juror
identifying information.”
       As for the second instance, the court found the allegation regarding the newspaper
article was “highly speculative and, as such, it fails to establish good cause for the
unsealing of the confidential information.” The court noted it had instructed the jury not
to read or listen to news accounts of the case and found the fact that some jurors might
have read the newspaper on the date the article appeared was wholly insufficient to
unseal confidential juror information. After weighing defendant’s rights against the
juror’s expectations of confidentiality, the court found good cause did not exist to unseal
the documents.
       Discussion
       Following recording of the verdict, the jurors’ personal information is sealed.
(Code Civ. Proc., § 237, subd. (a)(2).) A defendant may request the information by
submitting a declaration with facts sufficient to establish good cause for the release of the
information. (Code Civ. Proc., §§ 206, subd. (g), 237, subd. (b).) Defendant must make
a sufficient showing (1) to support a reasonable belief that juror misconduct occurred,
(2) that diligent efforts were made to contact the jurors through other means, and (3) that

                                             28
further investigation is necessary to provide the court with adequate information to rule
on a new trial motion. (People v. Wilson (1996) 43 Cal.App.4th 839, 850 (Wilson).)
Defendant bears the burden of establishing good cause. (People v. Granish (1996)
41 Cal.App.4th 1117, 1131.)
       The trial court possesses broad discretion in determining whether a request for
juror information should be granted. We review the court’s denial of such a request for
an abuse of discretion. (People v. Carrasco (2008) 163 Cal.App.4th 978, 991; People v.
Santos (2007) 147 Cal.App.4th 965, 978.)
       We agree with the court’s analysis of the two alleged instances of juror
misconduct. The spectator’s attempt to influence Perez during her testimony was not
misconduct by a juror. Nor was it conduct that could influence the jury or prejudice
Melonson. The spectator shook her head during the proceedings; she did not speak. This
act did not implicate Melonson’s guilt or innocence. Moreover, the court instructed the
jury on what evidence it could consider in reaching its verdict, evidence which excluded
the actions of a spectator in court.
       As for the juror reading the Sacramento Bee, the court instructed the jury on its
obligation not to read news accounts of the case. The only support for this allegation was
the statement of codefendant Weeden. The trial court did not abuse its discretion in
declining to release confidential information based on an unsubstantiated claim by
Weeden. As the court observed, the request “emanates from the hearsay statement of
codefendant Weeden” and “[t]he fact that some jurors may have read the Bee on a date an
article about the case appeared” was wholly insufficient to justify unsealing the
confidential records. If the allegations of misconduct are vague, speculative, or
unsupported, they cannot support good cause for the release of confidential information.
(Wilson, supra, 43 Cal.App.4th at p. 852.)
       Nor can we find, as Melonson argues, that the court abused its discretion by
curtailing the defense’s ability to investigate allegations of serious misconduct.

                                             29
According to Melonson, the trial court abused its discretion in characterizing the defense
request as a “fishing expedition.” Notwithstanding the court’s words, Melonson failed to
meet his burden of establishing good cause for the release of the requested confidential
juror information. The alleged misconduct was not such that it “is likely to have
influenced the verdict improperly,” and therefore the court acted well within its discretion
in denying the request. (Evid. Code, § 1150, subd. (a).)
Motion for a Mistrial
         Melonson argues the court erred in denying his motion for a mistrial, which
followed Detective Stomsvik’s testimony. Detective Stomsvik stated that while
interviewing Angela, he confronted her with the “fact that Ryan Moore had confessed.”
According to Melonson, this testimony both prejudiced him and violated Aranda-
Bruton.10 In addition, Melonson contends the trial court’s admonition following the
testimony was not sufficient.11
         Background
         During the trial, Detective Stomsvik testified about his interview with Angela. He
stated she began to provide information about Weeden and Moore. Detective Stomsvik
testified, “About halfway into the interview when Detective Joachim confronted her with
the fact that Ryan Moore had confessed, things changed.”
         On cross-examination, Melonson’s counsel did not ask Detective Stomsvik about
his interview with Angela. Weeden’s counsel did question the detective about the
interview: “Q[:] Okay. With respect to Ryan Moore’s ever evolving confessions, let me
ask you some questions with respect to Angela [G.’s] statements.




10People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968)
391 U.S. 123 [20 L.Ed.2d 476] (Bruton).
11   Weeden, in her appeal, makes the identical argument.

                                             30
       “First of all, you would agree that one of the tactics of law enforcement when
interviewing a witness might be to feed them false information to see what they’re going
to say; is that true?
       “A[:] Are you asking did I do that to Angela [G.], or is that just a plain tactic that
could be used by law enforcement?
       “Q[:] Make it so clear. Is it a tactic for law enforcement to feed false information
to witnesses to see what they will say, yes, it is, no, it is not.
       “A[:] It can be, yeah.
       “Q[:] In respect to in this case with Angela [G.], at some point you said, hey,
Ryan had made a statement about being involved in the robbery, correct”?
       “A[:] Correct.
       “Q[:] Then she says, I heard Ryan say they should rob the victims, correct?
       “A[:] I think she said that, but said, I wasn’t sure who said that first, if it was
Ryan or Sarah, I think.”
       Out of the jury’s presence, the court discussed Weeden’s counsel’s objection to
Detective Stomsvik’s testimony. The court observed that the testimony was not solicited
by questioning, but “volunteered by the way of a somewhat nonresponsive answer
concerning Detective Joachim indicating to Angela [G.] that Ryan Moore had, quote,
confessed, and thereafter Angela [G.’s] statements became more consistent.”
       Both defendants’ counsel moved for a mistrial. Weeden’s counsel stated
Detective Stomsvik’s mention of Moore’s confession could lead to the inference that the
confession implicated Weeden. Melonson’s counsel echoed these fears.
       The prosecutor stated Detective Stomsvik’s response was unexpected but argued a
cautionary instruction would mitigate the harm. When asked by the court whether he
would refer to Moore’s confession in closing argument, the prosecutor said no.
       The court denied the motion, stating: “I did give the jury a limiting instruction
that defense counsel had requested. And in part, the admonition given stated thusly, thus

                                                31
the statements by Detective Joachim are not themselves evidence, and the contents of
these statements may not be considered by you as evidence against either of the charged
defendants. [¶] And the sentence preceding that admonition was as follows, law
enforcement officers are permitted to lie to criminal suspects and to pretend that they are
in possession of particular facts when they may not be. [¶] I believe out of the entire
totality of the circumstances with Detective Stomsvik’s testimony this morning, and the
fact that Mr. Bowman also clarified that this [is] a typical law enforcement tactic, I think
it does not rise to the level of such a due process violation where it has not created such
an unfairness in this trial that would warrant a mistrial at this time, and so I would deny
the motion for mistrial. [¶] I will certainly reinstruct the jury on this point, counsel, if
either one of you want me to do that during the final instructions.” Weeden’s counsel
commented: “Your Honor, I think that would be satisfactory.”
       Discussion
       A mistrial is appropriate only when a party’s chances of receiving a fair trial have
been irreparably damaged. If the court finds the prejudice is incurable by admonition or
instruction, a mistrial should be granted. We review the trial court’s ruling on the
mistrial motion for an abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 573.)
The statement of a witness during trial can provide the basis for incurable prejudice.
(People v. Wharton (1991) 53 Cal.3d 522, 565.)
       Melonson argues Stomsvik’s remark that Moore had confessed was extremely
prejudicial. Melonson urges us to consider the devastating impact of Moore’s confession
given the plethora of evidence of phone calls between Angela, Weeden, and Moore the
night of the shooting, coupled with the prosecution’s theory at trial that Moore and
Melonson were the shooters.
       According to Melonson, “Even with an admonition to the jury not to consider
Stomsvik’s statement for its truth, this was an impossible bell to unring.” Melonson also



                                              32
faults the court for failing to tell the jury Stomsvik’s statement was not true, thus
minimizing the effectiveness of the curative instruction.
       We begin by analyzing the sum and substance of Stomsvik’s testimony.
Stomsvik, while testifying about interviewing Angela about Weeden and Moore’s
involvement in the crime, stated Angela’s testimony changed when another detective
“confronted her with the fact that Ryan Moore had confessed.” Stomsvik did not
elaborate on exactly what Moore confessed to, and did not mention Melonson. The
prosecution did not elicit Stomsvik’s comment; Stomsvik independently made the
observation.
       Immediately afterward, Weeden’s counsel cross-examined Stomsvik about the
police eliciting favorable testimony by lying to suspects. The prosecution, during closing
argument, did not refer to Stomsvik’s testimony regarding Moore’s confession.
       In response to Stomsvik’s brief mention of Moore’s confession, the trial court
instructed: “Law enforcement officers are permitted to lie to criminal suspects and
witnesses and to pretend that they are in possession of particular facts when they may not
be, thus the statements by the various detectives and investigators in that regard are not
themselves evidence and may only be considered as they provide context to or
clarification of any statements or responses obtained.”
       Melonson argues this curative instruction does not dispel the prejudice of
Stomsvik’s testimony, citing People v. Navarrete (2010) 181 Cal.App.4th 828
(Navarrete). In Navarrete, the court suppressed a statement made by the defendant, who
was charged with committing a lewd act on a child. During the trial, a detective was
asked why swabs taken during the sexual assault examination had not been tested and he
replied: “ ‘Well, for several reasons, the first of which it’s a court rule that the
defendant’s statement is inadmissible. So I can’t state the first reason.’ ” (Id. at p. 831.)
The court denied a motion for a mistrial, struck the detective’s testimony, and instructed
the jury to disregard his testimony. (Id. at p. 831-832.) Later, the court discovered the

                                              33
detective intentionally violated the court’s order suppressing the statement. (Id. at
p. 833.)
       The appellate court reversed, finding the court’s curative instructions did not undo
the damage inflicted by the detective’s testimony because the instruction “did not break
the link the jury was likely to perceive between a ‘statement’ and a ‘confession’ in the
context of other evidence the jury heard.” (Navarrete, supra, 181 Cal.App.4th at p. 834.)
       Although Melonson acknowledges the testimony here implicates not his own
statement but the statement of a coperpetrator, he argues Navarrete applies. Here,
Detective Stomsvik inadvertently mentioned Moore’s confession; in Navarrete the
detective referred to a defendant’s statement in direct violation of a court order. Unlike
the detective in Navarrete, Detective Stomsvik briefly mentioned Moore’s confession; he
did not disclose Moore’s words. Nor did the fleeting reference to Moore implicate
Melonson in the robbery or murder.
       In contrast, the testimony by the detective in Navarrete was “neither ambiguous
nor inadvertent; it was deliberate, triggered seemingly by his apparent pique at the court’s
wondering . . . about the detective’s credibility.” (Navarrete, supra, 181 Cal.App.4th at
p. 836.) The trial court did not abuse its discretion in denying the motion for a mistrial.
                                  WEEDEN’S APPEAL
Requested Pinpoint Instruction
       Weeden contends the trial court erred in denying her request for an instruction that
age is relevant to the mental state required for attempted murder. Weeden argues that
prior to a certain stage of maturity, a person does not understand the meaning of robbery,
or the element of force and violence in the legal definition of robbery. This lack of an
instruction denied Weeden due process.
       Background
       During the discussion of jury instructions, defense counsel requested an
instruction “as to Ms. Weeden’s age and how the jury could consider the developmental

                                             34
issues concerning a 14-year-old.” The court noted the CALCRIM instructions refer to
child witnesses under the age of 10 years and stated it “would not be inclined to give a
jury instruction concerning a 14-year-old because it appeared that the demarcation age
was ten.”12
       The trial court advised defense counsel it would consider a proposed instruction,
and that counsel could point out Weeden’s age and immaturity during closing argument.
Defense counsel did not submit a proposed pinpoint instruction. However, during closing
argument, defense counsel stressed Weeden’s age and immaturity in arguing she lacked
the intent to commit robbery.
       Weeden, in moving for a new trial, argued the court erred in failing to instruct on
age as related to specific intent.13 The court disagreed, noting: “Both then and now
defense counsel has failed to provide any authority for this position. In fact, no sua
sponte or other duty exists in law for this request. It is the Court’s recollection that



12  CALCRIM No. 330 states: “You have heard testimony from a child who is age 10 or
younger. As with any other witness, you must decide whether the child gave truthful and
accurate testimony. [¶] In evaluating the child’s testimony, you should consider all of
the factors surrounding that testimony, including the child’s age and level of cognitive
development. [¶] When you evaluate the child’s cognitive development, consider the
child’s ability to perceive, understand, remember, and communicate. [¶] While a child
and an adult witness may behave differently, that difference does not mean that one is
any more or less believable than the other. You should not discount or distrust the
testimony of a witness just because he or she is a child.”
13 The motion for a new trial cited Penal Code section 26, and a civil jury instruction,
CACI No. 402. Section 26 states, in pertinent part: “All persons are capable of
committing crimes except those belonging to the following classes: [¶] One--Children
under the age of 14, in the absence of clear proof that at the time of committing the act
charged against them, they knew its wrongfulness.” CACI No. 402 states: “[Defendant]
is a child who was [ ] years old at the time of the incident. Children are not held to the
same standards of behavior as adults. A child is required to use the amount of care that a
reasonably careful child of the same age, intelligence, knowledge, and experience would
use in that same situation.”

                                              35
[defense counsel] used the defendant’s age and evidence of good character, as testified to
by family and close friends, to argue that the jury find her not guilty.”
       Discussion
       The trial court must instruct on general principles of law closely connected to the
facts and necessary for the jury’s understanding of the case. (People v. Avila (2006)
38 Cal.4th 491, 567-568.) In addition, defendant is entitled to instructions that pinpoint
the defense theory, if requested, when supported by substantial evidence. (People v.
Crew (2003) 31 Cal.4th 822, 836.)
       Here, the trial court instructed with CALCRIM Nos. 252, specific intent;
401, aiding and abetting; 540B, felony murder; and 1600, robbery. On appeal, we
presume jurors are capable of understanding and correlating jury instructions. (People v.
Brock (2006) 143 Cal.App.4th 1266, 1277.)
       Weeden, citing People v. Mendoza (1998) 18 Cal.4th 1114 (Mendoza), argues a
defendant’s age is relevant to the element of shared criminal intent. In Mendoza, the
Supreme Court stated: “Unlike the act of the direct perpetrator, the act of the aider and
abettor is not inherently criminal. Indeed, the aider and abettor’s act may be, and often is,
innocuous when divorced from the culpable mental state. (To the extent the act is itself
inherently criminal, it may subject the person to criminal liability as a direct perpetrator.)
For example, the act of handing a baseball bat to another person is not itself criminal.
Baseball players, friends, and parents do it routinely. That act, not being criminal by
itself, cannot be made either more or less criminal by the circumstance that the person is
intoxicated. However, if the person committing that act knows that the other person will
hit a third person over the head with a bat, and intends to facilitate that further act, the
person can be criminally liable as an aider and abettor for that further act and for any
other crime actually committed that is a reasonably foreseeable consequence of the
intended crime. The act of hitting someone on the head with a bat is inherently criminal
and as [People v.] Hood [(1969) 1 Cal.3d 444] and section 22 teach, is not less criminal

                                              36
because the hitter is intoxicated. But the alleged aider and abettor is liable for that
inherently criminal act only if the necessary mental states of knowledge and intent exist.
To say that the act of the aider and abettor should not be less criminal because of
intoxication is meaningless until one determines that the alleged aider and abettor is
liable for some criminal act.” (Mendoza, at p. 1129.)
       Weeden likens her youth and immaturity to the intoxication discussed in Mendoza,
arguing she lacked the judgment and foresight necessary to form the necessary intent to
aid and abet Melonson and Moore in their violent robbery of the victims. In essence,
Weeden argues, even though there was circumstantial evidence regarding her immaturity,
the jury lacked any instruction on how to evaluate this information.
       Weeden also points to CALCRIM No. 334, which states, in relevant part: “You
may not conclude that a child under 14 years old was an accomplice unless you also
decide that when the child acted, (he/she) understood: [¶] 1. The nature and effect of the
criminal conduct; [¶] 2. That the conduct was wrongful and forbidden; [¶] AND [¶]
3. That (he/she) could be punished for participating in the conduct.” According to
Weeden, the factors set forth in the instruction are equally applicable to a person just over
the age of 14.
       We disagree with Weeden’s evaluation of the jury and the evidence before it.
Several witnesses testified in Weeden’s defense, stressing her lack of maturity and
sheltered upbringing. The witnesses stated Weeden was not capable of setting up a
robbery because of her caring, bashful nature.
       In addition, defense counsel vigorously argued that because of her age, Weeden
was incapable of planning a robbery and was susceptible to manipulation by others.
Counsel urged the jury “to put glasses on of a 14-year-old girl.” Counsel continued:
“It’s . . . easy as a 40-something individual looking back at life, knowing what’s up, who
to trust, fairly street smart, can smell a rat a mile away perhaps than [sic] a 14-year-old
girl. It’s just different. [¶] . . . [¶] You’re easily manipulated. That’s why as a society,

                                              37
we don’t even let them decide who they can have sex with because they’re too easily
manipulated. They can’t make their own decisions whether they can drink or smoke
because they’re not smart enough, because they’re too easily manipulated to decide who
they can have sex with. [¶] But the Prosecution wants to charge her as an adult, under
adult standards. But you can take into consideration, put on those glasses of a 14-year-
old and tee, hee, hee, older boys want to talk to me and what should I do and let’s send
’em on a wild good [sic] chase. [¶] That’s a 14-year-old girl, it just is, and you get to put
those glasses on. And it’s [sic] easily manipulated by older people when she stepped into
this mess of vipers. [¶] And blaming her for this is like blaming a child molest victim.
She’s 14. She don’t [sic] know what she’s doing.”14
       Defense counsel, through witness testimony and argument, asked the jury to
consider Weeden’s age in determining whether she was guilty of the crimes. Contrary to
Weeden’s assertion, the jury was not left with the impression that her age was not
relevant, regardless of the court’s refusal to expressly instruct on the issue.
Ineffective Assistance
       Failure to Introduce Psychological Testimony
       Weeden contends trial counsel performed ineffectively in failing to present
psychological testimony to determine the extent of her emotional and cognitive
development. According to Weeden, such testimony would have raised doubts as to
whether she was capable of forming the intent to rob.
              Background
       Weeden moved for a new trial, arguing ineffective assistance based on trial
counsel’s failure to introduce psychological testimony. In conjunction with the motion,
appellate defense counsel included a psychological evaluation by Lisa Boal Perrine,



14 Defense counsel also pointed out that although Weeden as she sat before the jury at
trial was 17, she was only 14 at the time of the crimes.

                                              38
Ph.D. Dr. Perrine interviewed Weeden twice following the verdict and conducted
standardized psychological tests.
       Dr. Perrine concluded that although Weeden could comprehend the concept of
robbery, “it is extremely unlikely she would intend to commit robbery or knowingly
participate in one.” According to Dr. Perrine, Weeden would probably be slow to
understand that others were contemplating robbery if their intentions were not clearly
articulated.
       At the hearing on the new trial motion, trial counsel testified. When asked about
having Weeden examined by a psychologist, trial counsel responded: “I had
contemplated it, and it was my opinion that it wouldn’t necessarily have been helpful. [¶]
My opinion was regardless of what the doctor would have concluded, it would be
inconsistent with the defense that I was putting forth.”
       Trial counsel admitted he did not know what conclusion a psychologist would
reach, “[b]ut -- for instance, if the doctor were to conclude that she was completely
immature for instance and . . . easily manipulated, my concern would have been that the
Prosecution would have used that to show that she didn’t understand perhaps the
magnitude of a robbery, but still participated in it. [¶] So I had some concerns that that
could be twisted and turned against her.”
       Dr. Perrine testified that Weeden was unable to comprehend the concept of
robbery or to understand that someone was contemplating a robbery. Given Weeden’s
personality and behavioral history, it was extremely unlikely she would intend to commit
or knowingly participate in a robbery. Dr. Perrine also found Weeden to be a passive
follower, unlikely to take the initiative.
       The court denied the motion, reasoning: “Based on the defendant’s own
declaration, she acknowledges that Ryan Moore said he wanted to rob the victim and
wanted her to set up a meeting, but she did not agree to the plan. She also denies that she
set up the robbery plan. Six days later she followed the advice of others to arrange to

                                             39
meet the victim, but not show up, so he would stop calling her. She did not think Ryan
Moore would follow through with the robbery plan because no one had mentioned it
since the initial discussion some six days before. Thus her intent does not appear to be at
issue since she denies that she planned the robbery or agreed to it or had any conversation
about it when she set the victim up.” The court found trial counsel’s considered decision
“to have been a sound tactical decision and furthermore it does not appear to have been
prejudicial in any event.”
              Discussion
       To establish ineffective assistance of counsel, a defendant must show counsel’s
performance was deficient and fell below an objective standard of reasonableness, and it
is reasonably probable that a more favorable result would have been reached absent the
deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688
[80 L.Ed.2d 674] (Strickland).) A reasonable probability is a “probability sufficient to
undermine confidence in the outcome.” (Id. at p. 694.)
       Weeden contends trial counsel’s decision not to have her examined by a
psychologist was not a sound tactical decision. However, trial counsel articulated a very
reasonable tactical decision for not requesting such an examination. If the examination
revealed Weeden was easily manipulated, the prosecution could claim this was evidence
that although Weeden did not understand the magnitude of the robbery, she nonetheless
went along with it. In essence, the examination might undermine the defense strategy
trial counsel was pursuing at trial.
       In addition, Weeden argues the lack of psychological testimony on her lack of
specific intent “undermines confidence in the outcome of this trial.” According to
Weeden, the testimony of Dr. Perrine would have raised a reasonable doubt as to whether
Weeden harbored a specific intent to rob. Presented with Dr. Perrine’s testimony, the
jury would not have concluded Weeden joined in Melonson’s criminal intent to commit
armed robbery.

                                            40
       Again, trial counsel pursued the defense that Weeden did not set up the robbery or
agree to it. The testimony Weeden claims counsel was ineffective in failing to present
might well have undermined this defense. Among Dr. Perrine’s findings was that
Weeden had a strong tendency to be a passive follower, which might have led the jury to
conclude she did not initiate the robbery but, sheep-like, went along with it. We find no
ineffective assistance.
Removal of Juror for Bias
       According to Weeden, jurors who were intent on conviction complained to the
court about Juror No. 11’s declaration that he would not convict a child of murder. Since
age was a proper consideration in evaluating Weeden’s intent, Weeden argues Juror
No. 11 did not commit misconduct by considering it.
       Background
       During deliberations, the jurors sent the trial court a note stating information about
the Melonson verdict had been divulged, although not all jurors were privy to the
information. The trial court questioned the jury foreperson about the issue. The
foreperson explained that Juror No. 4 read an article on the codefendant’s verdict and
mentioned it to Juror No. 11. No other jurors participated in the conversation. The
foreperson stated she would decide the case on its merits, putting aside anything Juror
No. 4 said about the article.
       Juror No. 4 acknowledged reading the article about Melonson and discussing it
with Juror No. 11. Juror No. 11 stated that Juror No. 4 told him about the Melonson
verdict in order to bully him into changing his opinion. Juror No. 11 believed he could
continue to deliberate and be fair to both sides but acknowledged he could not set the
information aside, although he would try not to let it affect him.
       The court dismissed Juror No. 4 for misconduct. The prosecution asked that Juror
No. 11 also be dismissed. Although the court denied the request, it noted Juror No. 11 “is
now aware that the Melonson jury has convicted him of the attempted robbery counts,

                                             41
and I can certainly see from the Defense perspective that having that information is not
helpful.” The court offered to excuse Juror No. 11 if requested by the defense. The
defense declined the offer.
       After Juror No. 4 was replaced, deliberations continued. Subsequently, the jury
sent the court a note stating: “Some statements were made by 1 juror that he could not
convict a child. Those statements have been weighing heavily on the majority. He also
is very sympathetic to the outcome of a particular conclusion & what will happen to the
defendant. No notes were taken however he did write ‘Jesus loves you.’ When aske[d]
to recall what his notes said he stated he had none & then grabbed another juror[’]s
notepad. Today he even went as far as saying to note [sic] & he would go along w/the
majority just to go home. Then he backed [sic] tracked & disagreed. He is too hung up
on the age of defendant.”
       After receiving the note, the court questioned Jurors Nos. 2, 3, 5, 8, and 12 about
the note. Juror No. 8 stated that, on the first day of deliberations, Juror No. 11 stated he
“cannot convict a child, he cannot sleep at night, he cannot hold that in his heart.” Juror
No. 8 also stated: “[I]t’s affecting us because we know that, the reasoning isn’t there for
whatever decisions are being brought to the table.” Jurors Nos. 2, 3, 5, and 12 heard
Juror No. 11 say he could not convict a child. Although his fellow jurors asked him to
explain his opinion, Juror No. 11 failed to provide any explanation.
       The jurors reminded one another that they were to deliberate free of bias and
prejudice. Juror No. 2 stated that someone asked Juror No. 11 if he was biased, “And at
first he didn’t answer. He just asked back. [¶] Are you biased? [¶] And they said no.
[¶] And then he said well, I am. [¶] And that was just yesterday.”
       During deliberations, Juror No. 11 expressed concern about possible punishment,
stating, “[T]his is a capital murder case.” Juror No. 11 was very worried about someone
convicted of murder being sentenced to life in prison. He discussed punishment for five



                                             42
days and was the only juror who repeatedly brought up the issue. Juror No. 11 refused to
listen to the other jurors’ advice to not consider punishment.
        Juror No. 11 said he did not need to review his notes because he remembered
everything. However, Juror No. 11 took Juror No. 3’s notes to refresh his memory. Juror
No. 3 stated that Juror No. 11 asked, “[W]hat did you write down?” and Juror No. 3
allowed him to see his notebook. Juror No. 11 had written “Jesus Loves You” in his
notebook and drawn a “happy face.”
        The day before the hearing, Juror No. 11 told the others he would go along with
them just to go home. However, his fellow jurors said he could not do that. Juror No. 11
began discussing Weeden’s age, expressing concern about her youth. He refused to give
any facts supporting his statements.
        During the hearing, the trial court said to Juror No. 11, “It’s indicated that you’ve
made comments that you cannot convict a child.”
        “[Juror No. 11:] No, that’s not true.
        “[Court:] You did not say that[?]
        “[Juror No. 11:] No, I did not.
        “[Court:] It’s also been indicated to me that you are very sympathetic to the
outcome of a particular conclusion and what will happen to the defendant. [¶] Have you
voiced those types of concerns to the jury?
        “[Juror No. 11:] We’ve talked about the law and what felony murder is.
        “[Court:] Have you discussed the punishment?
        “[Juror No. 11:] No.
        “[Court:] No discussions about the punishment.
        “[Juror No. 11:] No.
        “[Court:] Okay. It’s also been indicated to me that at some point . . . you did not
take notes evidently during the trial, but had written down in your notebook ‘Jesus Loves
You’.

                                                43
       “[Juror No. 11:] Yes.
       “[Court:] Is that true?
       “[Juror No. 11:] Yes, it is true, your Honor.
       “[Court:] Okay. And when you were asked to recall what your notes said, that
you stated that you had none, and then you grabbed another juror’s notepad.
       “[Juror No. 11:] No. That’s a lie.
       “[Court:] That’s a lie. [¶] It’s indicated to me that at some point in time
yesterday, that you said you would vote a certain way just to go along with the majority,
but then you backtracked and disagreed.
       “[Juror No. 11:] Yes.”
       Following this colloquy, the trial court observed that someone was not telling the
truth, “and it is my observation, based on the demeanor, the specifics, the nature of the
allegations, that I’m of the view that Juror [No. 11] is untruthful.” In addition, the court
found Juror No. 11 engaged in repeated instances of misconduct and exhibited bias in
favor of Weeden based on her age.
       The court found the other jurors “extremely credible” and did not believe Juror
No. 11’s denials. Juror No. 11, the court believed, was incapable of following the court’s
instructions, particularly those related to penalty and punishment. The court determined
Juror No. 11 “should be removed from this jury for repeated instances of misconduct and
failure to follow the Court’s instructions, and I would make the further finding that he is
biased.”
       In response, defense counsel requested that the court interview the remaining
jurors in an effort to confirm Juror No. 11’s version of events. Following a recess to
allow the court to research the issue, the court denied the request, finding it an
unnecessary intrusion on the deliberative process.
       The court found the jurors interviewed to be especially credible. As to defense
counsel’s concerns that Juror No. 11 had been bullied, the court found the jurors who

                                             44
came forward did not do so gleefully or with any motive other than a desire to deliberate
as instructed. The jurors were very concerned that, despite their best efforts, Juror No. 11
was unable to set aside his biases and decide the case on the facts. The court found no
bullying of Juror No. 11; instead, the other jurors asked Juror No. 11 to cite specific facts,
which he was unable to do. When Juror No. 11 offered to vote with the others, the jurors
dissuaded him from such inappropriate behavior. The court concluded these facts
undermined and contradicted any claim of bullying during deliberations.
       The court found Juror No. 11 lied to the court and willfully disregarded the court’s
instructions. Since Juror No. 11 was unable to perform his duties within the meaning of
section 1089, the court removed the juror and replaced him with an alternate.
       In her motion for a new trial, Weeden argued Juror No. 11’s removal was
improper. Weeden submitted a declaration from a private defense investigator stating: “I
spoke with juror [name redacted]. He informed me that juror [No. 11] had engaged in
deliberations and had not refused to deliberate. . . . I contacted him again and asked for
his signature on a declaration. He declined to sign a declaration and stated that he wanted
to put the whole matter behind him.” The court denied the motion.
       Discussion
       Under section 1089, “If at any time, whether before or after the final submission of
the case to the jury, a juror . . . upon other good cause shown to the court is found to be
unable to perform his or her duty . . . the court may order the juror to be discharged and
draw the name of an alternate . . . .” A juror who is biased is unable to perform the duty
to deliberate fairly and is subject to discharge. Bias may be established by the testimony
of other jurors. (People v. Barnwell (2007) 41 Cal.4th 1038, 1051 (Barnwell).)
       We uphold the trial court’s determination if the decision is supported by
substantial evidence and the juror’s inability to perform appears in the record as a
demonstrable reality. The demonstrable reality standard requires a stronger showing than
mere substantial evidence. This test requires a showing that the trial court relied on

                                             45
evidence that, in light of the entire record, supports the court’s conclusion that
disqualification was established. This standard protects a defendant’s fundamental right
to due process and an unbiased jury. (People v. Wilson (2008) 44 Cal.4th 758, 821;
People v. Watson (2008) 43 Cal.4th 652, 696 (Watson).)
          “The evidence bearing on the question whether a juror has exhibited a
disqualifying bias during deliberations may be in conflict. Often, the identified juror will
deny it and other jurors will testify to examples of how he or she has revealed it.
[Citation.] In such a case the trial court must weigh the credibility of those whose
testimony it receives, taking into account the nuances attendant upon live testimony. The
trial court may also draw upon the observations it has made of the jurors during voir dire
and the trial itself. Naturally, in such circumstances, we afford deference to the trial
court’s factual determinations, based, as they are, on firsthand observations unavailable to
us on appeal.” (Barnwell, supra, 41 Cal.4th at p. 1053.)
          Weeden contends the trial court abused its discretion by not examining the full
jury before dismissing Juror No. 11. Instead, Weeden argues, the court merely examined
the complaining jurors and Juror No. 11, “effectively stack[ing] the deck against the
holdout juror.” The remaining jurors, according to Weeden, “were the best source of an
unbiased account of any alleged misconduct.” This limited examination of jurors
prejudiced Weeden.
          Here, the trial court was well aware of these concerns in limiting the scope of juror
inquiry. The court determined that questioning the entire jury would unnecessarily
intrude on the jury’s deliberation process. After defense counsel requested that all the
jurors be questioned, the court stated the five jurors questioned were “especially credible
on these issues.” Nor did the court find any evidence of bullying by the complaining
jurors.
          The court also acknowledged that one juror stated in a declaration that Juror
No. 11 had not refused to deliberate. The court noted that the declaration stated “the five

                                               46
jurors who signed the note were combative and trying to beat the discharged juror down.”
However, the declaration also “supports some of the same assertions made by the five
jurors including the following: [¶] The discharged juror did state that he could not send
such a young girl to prison for this crime and that quote, he did what he felt he had to
because of his religious faith, end of quote.”
       The court noted the juror declined to sign the declaration. The court termed the
declaration hearsay, noting “it is vague and conclusory and provides no pertinent
information.”
       Given the facts before it, the trial court did not abuse its discretion in declining to
widen its inquiry to include all jurors. We note that courts “should use caution when
making inquiries because of the need to protect the sanctity and secrecy of jury
deliberations.” (People v. Bennett (2009) 45 Cal.4th 577, 624 (Bennett).) Here the court
exercised such caution.
       Weeden contends Juror No. 11’s concern over her age was a relevant
consideration and not an indicator of bias. Juror No. 11, Weeden argues, was merely
basing his opinion on past life experiences, which is not a cause for disqualification.
       Weeden glosses over the evidence. Fellow jurors reported that Juror No. 11 began
deliberations by stating he could not convict a child. He refused to participate in
deliberations based on this belief. However, when questioned by the court, Juror No. 11
denied stating he could not convict a child.
       Faced with this conflict, the trial court concluded: “I believe that a reviewing
court will find that the juror was not discharged for refusing to deliberate. Instead, the
juror was removed for repeated instances of misconduct involving the inappropriate
consideration of age -- specifically that he could not vote to convict a child and the
inappropriate consideration of penalty and punishment as well as for dishonesty during
the Court’s investigation of the misconduct claim. The investigation that was conducted
clearly showed a willful disregard of the Court’s instructions. Additionally, at the time, I

                                               47
made findings about the credibility, demeanor and manner of the jurors who were
questioned on this issue and I incorporate by reference those findings.”
       Contrary to Weeden’s analysis, Juror No. 11 was not merely bringing personal
experience to the deliberations. Juror No. 11 told fellow jurors he could not convict a
child, then denied such statements when questioned by the court. It is axiomatic that the
trial court is in the best position to observe and evaluate a juror’s words and demeanor.
(People v. Schmeck (2005) 37 Cal.4th 240, 298.) Here, the court found Juror No. 11 not
to be truthful in his denials. Based on the entire record, we find the court’s determination
meets the demonstrable reality standard. (Watson, supra, 43 Cal.4th at p. 696.)
       Weeden asserts Juror No. 11’s concern over punishment was only another way of
stating the juror’s consideration of age as related to the mental element of attempted
robbery. According to Weeden, such concerns do not amount to misconduct.
       Fellow jurors reported that Juror No. 11 discussed penalty and punishment during
deliberations despite the court’s admonition not to do so. When questioned by the court,
Juror No. 11 denied any such comments. The court heard and observed Juror No. 11’s
statements and found them untruthful. Again, the court was in the best position to assess
Juror No. 11’s credibility.
       Finally, Weeden contends “perceived lying” by a juror is not a sufficient reason to
excuse the juror. Weeden faults the court for finding Juror No. 11 not trustworthy
without examining all the jurors.
       As discussed, ante, we cannot fault the court for declining to interview the entire
jury. Nor can we substitute our judgment for the court’s ability to discern Juror No. 11’s
veracity. We also reject Weeden’s suggestion that the trial court erroneously considered
“perceived lying” in excusing the juror. The cases relied on by Weeden stand for the
unremarkable propositions that, standing alone, unintentional concealment of material
information by a prospective juror during voir dire will not warrant the juror’s later
removal during jury deliberations, and a false statement by a juror during deliberations,

                                             48
absent evidence of prejudice, is not grounds for a new trial. They bear no similarity to
the present dispute. The court’s dismissal of Juror No. 11 is supported under both the
substantial evidence standard and the demonstrable reality standard.
Deprivation of Right to Testify
       Weeden contends the court erred in denying her motion for a new trial because she
was denied the right to testify due to her age and lack of maturity. Weeden argues she
was the best witness to her intent at the time of the offense, and defense counsel deprived
her of her constitutional right in advising her not to testify.
       Background
       Weeden requested a new trial based on defense counsel’s ineffective performance
in dissuading her from testifying. The motion was supported by a declaration by trial
counsel. Trial counsel stated he advised Weeden not to testify based on her lack of
maturity. Weeden failed to give meaningful responses to questions, answering “ ‘I don’t
know’ ” inappropriately. Trial counsel believed Weeden’s immaturity and shyness
caused her ineffectiveness, but was concerned the jury would not understand this. The
trial court denied the motion.
       The court found defense counsel’s explanation of why he did not advise Weeden
to testify “absolutely sound trial strategy.” Weeden did not claim defense counsel told
her that she could not testify, and the trial court obtained a waiver from Weeden of her
right to testify during trial. The trial court said to Weeden: “It doesn’t matter what
[defense counsel] says. He might tell you it’s a bad idea, but ultimately it is your
decision and your decision alone to decide whether or not to testify. Do you understand
that?” Weeden responded: “Yes.” She also affirmed it was her decision not to testify.
The court concluded Weeden “was fully engaged and competent to make that intelligent
and knowing waiver.”
       Nor did the court find Weeden’s age and immaturity rendered her incompetent to
testify: “To the extent that defendant confuses her right to testify with a right to present a

                                              49
believable and credible version of events, this Court is unaware and the Defense cites no
authority for this novel and expansive view. To the extent that this argument invites the
Court to suspend proceedings I decline to do so because I find absolutely no evidence,
substantial or otherwise that would require this action. At all times Miss Weeden has
appeared to this Court to be fully competent and engaged in the trial proceedings.”
       Discussion
       In ruling on a new trial motion, the trial court possesses broad discretion, and there
is a strong presumption that it properly exercised its discretion. We will not reverse the
trial court’s exercise of that discretion absent a manifest and unmistakable abuse of that
discretion. (People v. Williams (1988) 45 Cal.3d 1268, 1318.)
       In her motion for a new trial, Weeden argued trial counsel performed ineffectively
in advising her not to testify. In addition, Weeden argued she was incompetent and
incapable of testifying effectively on her own behalf.
       As to the first claim, ineffective assistance, the trial court found trial counsel’s
decision “sound trial strategy.” We agree.
       Trial counsel explained he met with Weeden to discuss her testimony. He went
over her potential testimony “many times” but determined Weeden would make a poor
witness due to her immaturity and shyness. Given these discussions, trial counsel
advised Weeden not to testify at trial. Weeden followed counsel’s advice and elected not
to testify. Trial counsel’s decision to dissuade Weeden from testifying was not deficient
when measured against the standard of a reasonably competent attorney. (Strickland,
supra, 466 U.S. at pp. 687-689.)
       As to the second claim, that Weeden’s immaturity made her incompetent to testify,
the court found Weeden at all times appeared to be “fully competent and engaged in the
trial proceedings.” Although trial counsel described Weeden as “a little girl in every
since [sic] of the word” and lacking in maturity and sophistication, we cannot second-



                                              50
guess the trial court, who was in the best position to observe and evaluate Weeden’s
competence.
       Moreover, Weeden’s academic performance did not reflect any mental defect
impinging on her ability to testify. Her grades were improving, she performed well on
tests in preparation for her GED (general educational development) test, and one teacher
described her as self-motivated and responsible.
       The court, in denying the motion for a new trial, found Weeden “a little bit more
manipulative and a little bit more sophisticated than those that know her the best and love
her the most will accord.” Based on this record we cannot find the court erred in
rejecting Weeden’s claim that she was incompetent to testify.
Instruction on Aiding and Abetting
       Weeden objects to the trial court’s instructing pursuant to CALCRIM No. 400 that
she is “equally guilty” of the crime committed by the perpetrator. The instruction,
Weeden argues, is misleading because it does not allow for a lesser degree of guilt on the
part of the aider and abettor. Since the perpetrators, Moore and Melonson, had the intent
to commit robbery, an intent not shared by Weeden, the instruction was in error.
       CALCRIM No. 400 states: “A person may be guilty of a crime in two ways. One,
he or she may have directly committed the crime. I will call that person the perpetrator.
Two, he or she may have aided and abetted a perpetrator, who directly committed the
crime. A person is equally guilty of the crime whether he or she committed it personally
or aided and abetted the perpetrator who committed it.” Defense counsel did not object
to the instruction.
       Discussion
       Weeden faults the instruction on aiding and abetting for failing to allow for a
lesser degree of guilt on the part of the aider and abettor. She argues that although the
perpetrators, Moore and Melonson, intended to rob the victims, she did not share this



                                             51
intent. In support, Weeden relies on People v. Samaniego (2009) 172 Cal.App.4th 1148
(Samaniego).)
         In Samaniego, the appellate court held the criminal liability of the aider and
abettor may be less than that of the perpetrator, if the aider and abettor has a less culpable
mental state. (Samaniego, supra, 172 Cal.App.4th at pp. 1164-1165.) Therefore, the
language of CALCRIM No. 400, which instructs that the aider and abettor is equally
guilty with the perpetrator, may be misleading. (Samaniego, at pp. 1164-1165.) The
court found the error harmless, since the issue of shared intent was resolved against the
defendant by other instructions. The court instructed pursuant to CALCRIM No. 702,
which requires the aider and abettor share the perpetrator’s intent to kill. (Samaniego, at
pp. 1165-1166.)
         Weeden argues that once the jury determined Moore and Melonson intended to
commit a robbery, the jury should have determined whether she shared that intent. The
instructions, Weeden claims, failed to inform the jury of the necessity for that
determination.
         We disagree. In Samaniego the jury considered aiding and abetting, but not in the
context of felony murder. Here, the court instructed that Weeden was guilty of murder
under the felony murder theory if she aided and abetted an attempted robbery; she
intended to aid and abet the perpetrator in committing a robbery; if she did not personally
attempt to commit robbery, then a perpetrator whom Weeden was aiding and abetting
personally attempted to commit robbery; and while attempting to commit robbery, the
perpetrator did an act that caused the death of another person. (CALCRIM Nos. 401,
540B.)
         The court explicitly instructed the jury that it must find Weeden intended to aid
and abet the robbery. Although the court also instructed pursuant to CALCRIM No. 400,
it is not plausible that the jury would ignore the explicit instruction on the need to find
intent and, instead, impute a finding of intent to Weeden.

                                              52
Jurisdiction
       According to Weeden, the trial court lacked jurisdiction because the complaint
originally filed alleged a special circumstance under section 190.2, which is inapplicable
to her as a 14 year old. Weeden also challenges the prosecution’s exercise of discretion
in deciding to file directly in the superior court. In her motion for a new trial, Weeden
argued the trial court lacked jurisdiction.
       Background
       The trial court found the prosecution properly exercised its discretion, and
therefore the court had jurisdiction over Weeden. The complaint, the court found, alleged
the special circumstance under Penal Code section 190.2, subdivision (a) but also alleged
jurisdiction under Welfare and Institutions Code section 707, subdivision (d)(2)(A),
which gives the district attorney the discretion to file the case in criminal court. The
court rejected Weeden’s argument that because the district attorney originally alleged the
special circumstance, this precluded any exercise of discretion under section 707. The
court found no authority to support Weeden’s assertion that the district attorney is
precluded “from alleging alternative ways -- even if one is mandatory and the other is
discretionary -- for a case to be brought in criminal court.”
       Weeden also argued the district attorney’s policy of filing all murder cases in
criminal court amounted to no exercise of discretion in individual cases, invading the
legislative function of defining crime and punishment. The court rejected the claim,
finding: “First, the Defense has not shown that the District Attorney has not exercised
her discretion. As the Defense points out the District Attorney’s policy does allow for
exceptions to the policy. [¶] It states quote, the Chief Deputy or Assistant District
Attorney must approve any exception to the policy . . . . [¶] Second, it is not this Court’s
job to oversee -- absent evidence of discrimination and arbitrariness -- whether the
District Attorney has adequately exercised her discretion.”



                                              53
       In addition, the court noted that in Manduley v. Superior Court (2002) 27 Cal.4th
537 (Manduley), the Supreme Court held that Welfare and Institutions Code section 707,
subdivision (d) grants the district attorney authority to establish guidelines for filing
pleadings in criminal court. The court also rejected Weeden’s claim that the district
attorney’s failure to exercise discretion to file in juvenile court violated due process.
       Discussion
       Weeden argues the trial court lacked jurisdiction over her because the original
complaint alleged a special circumstance under Penal Code section 190.2, which is
inapplicable to her as a 14 year old. However, as the trial court found, the complaint also
alleged that the court had jurisdiction under Welfare and Institutions Code section 707,
subdivision (d)(2)(A).
       Welfare and Institutions Code section 707, subdivision (d) provides, in pertinent
part: “(2) Except as provided in subdivision (b) of Section 602, the district attorney or
other appropriate prosecuting officer may file an accusatory pleading against a minor 14
years of age or older in a court of criminal jurisdiction in any case in which any one or
more of the following circumstances apply: [¶] (A) The minor is alleged to have
committed an offense which if committed by an adult would be punishable by death or
imprisonment in the state prison for life.” The prosecution’s decision to file charges
against a minor in criminal court under section 707 “is well within the established
charging authority of the executive branch.” (Manduley, supra, 27 Cal.4th at p. 545.)
       Weeden provides no authority for her contention that the inclusion of the
inapplicable special circumstance under Penal Code section 190.2 trumps the allegation
under Welfare and Institutions Code section 707, subdivision (d), which is clearly within
the district attorney’s discretion. Nor do we find the district attorney abused that
discretion in charging Weeden under section 707, subdivision (d). As the court noted, the
district attorney’s charging policy allows for exceptions.



                                              54
       Here, Weeden was charged with felony murder, a murder in connection with a
bungled robbery. This offense subjected Weeden to the possibility of life in prison if she
had been an adult at the time of the crimes. (§ 190.2, subd. (17)(a).) Therefore, the
district attorney had the discretion to charge Weeden as an adult.
Cruel and Unusual Punishment
       Weeden argues her sentence of 29 years to life constitutes cruel and unusual
punishment within the meaning of the state and federal Constitutions. In support,
Weeden stresses her youth, lack of prior record, her immaturity, the fact that liability was
based on the felony murder rule, and the fact that she had little knowledge of the
circumstances surrounding the murder. According to Weeden, the felony murder rule
does not serve its intended function when applied to juveniles, who are incapable of
assessing the danger of felonious conduct to human life.
       A sentence violates the California Constitution’s prohibition against cruel and
unusual punishment if “it is so disproportionate to the crime for which it is inflicted that it
shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch
(1972) 8 Cal.3d 410, 424.) To make this determination, we may consider (1) the nature
of the offense and the offender, with particular regard to the degree of danger both
present to society; (2) comparison of the challenged penalty to punishment prescribed in
California for more serious offenses; and (3) comparison of the challenged penalty to
punishment prescribed in other jurisdictions for the same offense. (Id. at pp. 425-428.)
       In a spate of recent state and federal cases, courts have tackled the troubling
question of juvenile offenders and lengthy sentences. The United States Supreme Court
in Graham v. Florida (2010) ___ U.S. ___ [130 S.Ct. 2011, 176 L.Ed.2d 825] (Graham)
held the sentence of life in prison without parole cannot be imposed upon a juvenile
defendant for a nonhomicide offense. In Miller v. Alabama (2012) ___ U.S. ___
[132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller), the United States Supreme Court found the



                                              55
Eighth Amendment prohibits imposing the term of life in prison without the possibility of
parole for juvenile defendants convicted of homicide. (Miller, at p. 2465.)
       More recently, in People v. Caballero (2012) 55 Cal.4th 262 (Caballero), the
California Supreme Court considered both Graham and Miller in determining whether a
juvenile’s sentence violated the Eighth Amendment to the United States Constitution.
The 16-year-old defendant in Caballero was sentenced to 110 years to life for three
counts of attempted murder. The defendant was a diagnosed schizophrenic. (Caballero,
at p. 265.)
       The Caballero court observed that in Graham, the court held the Eighth
Amendment requires the state to afford juvenile offenders a meaningful opportunity to
obtain release based on demonstrated growth and maturity. The Graham court relied on
studies showing fundamental differences between juvenile and adult minds, including
behavior control, which continues to mature through late adolescence. The court also
noted studies that show juveniles are more capable of change than adults. (Caballero,
supra, 55 Cal.4th at p. 266.) As the Caballero court observed, “Graham likened a life
without parole sentence for nonhomicide offenders to the death penalty itself, given their
youth and the prospect that, as the years progress, juveniles can reform their deficiencies
and become contributing members of society.” (Ibid.)
       Caballero also noted that Miller reiterated Graham’s focus on the “distinctive
(and transitory) mental traits and vulnerabilities” of children, finding them applicable
even in a robbery turned homicide. (Caballero, supra, 55 Cal.4th at p. 267.) The court
in Caballero found that Miller further clarified Graham’s “ ‘flat ban’ ” on life-without-
parole sentences applied to all nonhomicide cases involving juvenile defendants,
including the term-of-years sentence that amounts to the functional equivalent of a life-
without-parole sentence imposed in Caballero. (Id. at pp. 267-268.)
       Based on its analysis of Miller and Graham, the court in Caballero held that
sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole

                                             56
eligibility date that falls outside the offender’s natural life expectancy constitutes cruel
and unusual punishment. Although the proper authorities may determine a juvenile
offender should remain incarcerated for his or her lifetime, the state cannot deprive the
juvenile at sentencing of a meaningful opportunity to demonstrate rehabilitation.
(Caballero, supra, 55 Cal.4th at p. 268.) The court declined to provide precise time
frames for setting further parole hearings in a nonhomicide case, noting each case would
be based on different facts. The sentence must, to avoid violating the Eighth
Amendment, provide the offender with “a ‘meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.’ ” (Caballero, at p. 269.)
Accordingly, the court reversed and remanded the case.
       Here, we consider a 14-year-old defendant convicted of first degree murder and
attempted second degree robbery, and sentenced to 25 years to life plus four years.
Although Caballero did not consider a juvenile convicted of murder, the court did discuss
the possibility of a murder sentence violating the Eighth Amendment: “Although Miller
concluded that Graham’s categorical ban on life without parole sentences applies only to
all nonhomicide offenses, the court emphasized that in homicide cases, states are
forbidden from imposing a ‘[m]andatory life without parole for a juvenile.’ [Citation.]
The high court noted that such mandatory sentences preclude consideration of juveniles’
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 surround them—no matter how brutal or dysfunctional.
[Citation.] Thus, in Miller the high court did ‘not foreclose a sentencer’s ability’ to
determine whether it was dealing with homicide cases and the ‘ “rare juvenile offender
whose crime reflects irreparable corruption.” ’ [Citations.] The court requires sentencers
in homicide cases ‘to take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in prison.’



                                              57
[Citation.] We leave Miller’s application in the homicide context to a case that poses the
issue.” (Caballero, supra, 55 Cal.4th at p. 268, fn. 4.)
       The punishment imposed here was not grossly disproportionate to the crime. A
young man lost his life due to the actions of Weeden and Melonson. The gravity of the
offense was therefore great. We are mindful of Weeden’s youth and her lesser
participation in the actual murder, but Melonson, the adult and the more culpable party,
received a more severe sentence, life without possibility of parole.
       Weeden’s sentence of 25 years to life plus four years is substantially less severe
than the sentences in Graham, Miller, and Caballero. Weeden’s sentence will not keep
her in prison until she dies or nears the end of her life. She will be eligible for parole at a
comparatively young age, giving Weeden something to strive for and a substantial life
expectancy after completing her prison term. Weeden’s sentence is not tantamount to a
sentence of life in prison without the possibility of parole and was not cruel and unusual
punishment.
Sentencing Errors
       Weeden alleges a variety of sentencing errors: the court improperly denied
probation, the court abused its discretion in ordering consecutive sentences, and the court
should have committed her for diagnostic review. According to Weeden, the court
overlooked other reasonable sentencing alternatives.
       Probation
       In denying Weeden probation, the trial court found: “The defendant is statutorily
eligible for probation, and this Court has reviewed the applicable Rules of Court, and that
would require this Court to find Miss Weeden’s case to be an unusual circumstance to
warrant the probationary sentence. [¶] In this case I do not find such circumstances and
probation will be denied.” The court acknowledged Weeden’s lack of a criminal record,
but noted “this is not the typical felony murder case where the non-shooter is
substantially less culpable.”

                                              58
       Under the court’s analysis, the murder occurred because Weeden lured the victims
to a secluded location where they could be robbed without fear of detection. Weeden
actively participated in the murder and was not merely a casual participant. The court
concluded the murder “involved a level of sophistication and manipulation that makes
this case substantially more serious than the typical application of the Felony Murder
Rule.” Weeden, the court found, acted willfully and knowingly in setting up the robbery.
The court found Dr. Perrine’s testimony to the contrary unbelievable.
       In addition, the court recounted the circumstances leading to the murder. Text
messages placed Weeden at the center of a conspiracy to commit a robbery that
degenerated into a murder. The victim, the court found, was vulnerable and not, as the
defense suggested, a sexual predator. Nor was the victim involved in a drug transaction.
The court found the testimony of the mother of victim Navnil “compelling and heart
wrenching.” Ultimately, the court concluded, Weeden caused the victims to be placed in
harm’s way through her phone calls during the night of the murder.
       The court found the murder did not involve great provocation but did demonstrate
criminal sophistication on Weeden’s part. Citing the phone records, the court noted
Weeden lured the victims to an isolated place to preclude anyone’s witnessing the crime.
       Although the court noted Weeden would be willing to comply with probation,
while subjected to an ankle bracelet she engaged in conduct that upset her family.
According to the court, Weeden “may be a little bit more manipulative and a little bit
more sophisticated than those that know her the best and love her the most will accord,
and in this case I find she has done that.” The court denied probation.
       Weeden repeats her contention that her sentence to 25 years to life in prison is
unconstitutional and argues “[s]ome alternative sentence is necessary. Probation is the
only statutory alternative available.” We have determined Weeden’s sentence does not
constitute cruel and unusual punishment. Moreover, the trial court concluded this case
was not the type of unusual case in which probation should be granted in the interests of

                                            59
justice. The court reviewed the evidence and the relevant factors and determined
probation was not warranted. We find no abuse of discretion in the court’s denial of
probation. (People v. Stuart (2007) 156 Cal.App.4th 165, 178-179.)
       Consecutive Sentences
       The court ordered the sentence on the attempted robbery of Kumar to run
consecutively because he was a separate victim. At sentencing, Weeden argued
consecutive sentences were inappropriate because the victims’ criminal activity put them
in harm’s way.
       The court found this argument “offensive and having absolutely no basis in
fact . . . . [¶] . . . I also find offensive any representation that the victims were involved .
. . in any kind of drug or narcotics transaction. That is also not supported by the evidence
in this case and I think only serves the purpose of dirtying the victims, when at least one
of them cannot respond.” In addition, the court stated: “The vulnerability of the victim.
This was a 17-year-old boy, and I reject any characterization of this 17-year-old boy as
being a predatory sexual offender. I find that to be offensive and having absolutely no
basis in fact to make that allegation.”
       The court determined that but for Weeden’s participation, Navnil “would not have
been killed. She set up this robbery, and the text messaging and the cell phone records
provide more than ample evidence for that fact.” The court concluded: “We sit here
today solely because Miss Weeden set up a robbery that went bad, in which she actively,
personally participated in [sic] and to this day continues to minimize and refuses to take
responsibility.”
       Weeden argues the court’s imposition of consecutive sentences was an abuse of
discretion, since the criminal activity of the victims is “precisely what placed them in
harm’s way.” Weeden presents herself as the target of their scheme involving drugs and
underage girls, and argues the court “misremembered the record” in imposing
consecutive sentences.

                                               60
       The court acknowledged Weeden’s argument about Navnil and Kumar’s criminal
activity but rejected it. Weeden presents tenuous evidence of the criminal activity:
Kumar’s false story in his initial police interview, Navnil’s brother’s testimony that the
girls asked if Kumar had “weed,” and the victims’ alleged aim of arranging a tryst in a
motel with the girls. The court heard this evidence and found it not credible. We find no
abuse of discretion.
       Diagnostic Review
       The court denied Weeden’s request for diagnostic review, finding it would not
benefit the court in sentencing. The court accorded very little weight to Dr. Perrine’s
testimony: “Dr. Perrine made it very clear in her testimony that her opinion would
remain the same regardless of any additional or different facts. I find this view to be
unbelievable and one that undermines the credibility and believability of the Doctor’s
testimony and report.”
       Weeden made the request under section 1203.03, subdivision (a), which provides:
“In any case in which a defendant is convicted of an offense punishable by imprisonment
in the state prison, the court, if it concludes that a just disposition of the case requires
such diagnosis and treatment services as can be provided at a diagnostic facility of the
Department of Corrections, may order that defendant be placed temporarily in such
facility for a period not to exceed 90 days, with the further provision in such order that
the Director of the Department of Corrections report to the court his diagnosis and
recommendations concerning the defendant within the 90-day period.” We review the
court’s ruling for an abuse of discretion. (People v. Peace (1980) 107 Cal.App.3d 996,
1001-1002.)
       Weeden claims the court abused its discretion in denying the request, since an
evaluation report would have reinforced her argument that the life sentence is wholly
inappropriate. In addition, “it is incumbent on the sentencing court to be as fully
informed as possible.” However, the court had before it Dr. Perrine’s evaluation of

                                               61
Weeden, which the court found less than credible. Under the circumstances we cannot
find an abuse of discretion.
                                      DISPOSITION
       The judgments are affirmed.



                                                       RAYE             , P. J.



We concur:



          HULL                 , J.



          BUTZ                 , J.




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