Filed 4/22/15 P. v. Meraz CA2/8
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SECOND APPELLATE DISTRICT

                                                   DIVISION EIGHT


THE PEOPLE,                                                          B245657

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA065446)
         v.

JUAN RAMON MERAZ et al.,

         Defendants and Appellants.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel B.
Feldstern, Judge. Affirmed as modified.
         Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and
Appellant Juan Ramon Meraz.
         Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and
Appellant Juan M. Chambasis.
         Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and
Appellant Victor Bibiano.


                                                         ******
       Codefendants Juan Ramon Meraz, Juan M. Chambasis, and Victor Bibiano
separately appeal their convictions and sentences for murder, attempted murder, and
discharging a firearm at an inhabited dwelling following a gang-related shooting that killed
two victims and seriously injured a third. We correct certain errors in their judgments and
affirm the judgments as modified.
                                 PROCEDURAL HISTORY
       Appellants were jointly charged with the murders of Javier Zamora and Justin Curiel
(Pen. Code, § 187, subd. (a); counts 1 & 2),1 the attempted premeditated murder of Jose
Santa Ana (§§ 187, subd. (a), 664; count 3), and discharging a firearm at an inhabited
dwelling (§ 246; count 4). For the murder counts, multiple-murder and gang-murder special
circumstances were alleged. (§ 190.2, subd. (a)(3), (22).) A variety of firearm and gang
enhancements were also alleged.2 A first trial ended in a mistrial after the jury deadlocked.
On retrial, the jury found appellants guilty on all counts and found all special circumstances
and enhancements true. At separate sentencing hearings, the trial court sentenced each
appellant to life without the possibility of parole, a consecutive life sentence, and an
additional 50 years to life in state prison as follows: life without the possibility of parole for
count 1, plus 25 years to life pursuant to section 12022.53, subdivision (d); and a
consecutive life sentence on count 3, plus 25 years to life pursuant to section 12022.53,
subdivision (d). The court imposed concurrent sentences on counts 2 and 4 and stayed the
remaining enhancements for counts 1 and 3.3 The court imposed various fines, fees, and
custody credits discussed further, post, as necessary. Appellants separately appealed.
                                  STATEMENT OF FACTS
       The shooting in this case was part of a long-standing rivalry between two gangs in
Pacoima: Pacoima Terra Bella (Terra Bella) and the Pacoima Project Boys (Project Boys).


1      Undesignated statutory citations are to the Penal Code unless otherwise noted.
2      It was alleged Chambasis had a prior strike conviction, which the trial court
ultimately found not to be true.
3      The court struck the firearm enhancements for count 4 on dual-use grounds.


                                                2
The rivalry reached a heated point on May 5, 2008, when Project Boys member Jose Avila
shot and killed Terra Bella member Alejandro Villa. Avila was convicted of the murder.
The shooting by appellants here—all Terra Bella members—was viewed as retaliation for
Villa’s murder.
       On September 20, 2009, the day of the shooting, 16-year-old Project Boys member
Santa Ana lived at the San Fernando Gardens housing project, which was in Project Boys
gang territory. Santa Ana and fellow Project Boys member Zamora were on the porch of
Rosemary Hurtado’s apartment when Curiel joined them. Curiel was not a gang member
and had just moved into San Fernando Gardens. About five minutes after Curiel arrived,
three males approached, carrying firearms. Santa Ana recognized them and identified them
at trial as Bibiano, also known as “Blacky”; Meraz, also known as “Curley”; and
Chambasis, also known as “Bash.” Bibiano asked the trio where they were from, which
Santa Ana knew was gang parlance asking which gang they were from. Curiel tried to say
he “wasn’t from anywhere.” One of the appellants said they were from Terra Bella. Meraz
told a group of young children playing nearby, including Curiel’s brother, to leave. When
the children left, appellants began shooting.
       Before the shooting, 12-year-old S.B. was playing near the porch where the shooting
took place. She noticed three males approaching the victims on the porch. One of the
approaching males had a gun in his hand, and S.B. identified him at trial as Chambasis. As
the shooting began, she grabbed her younger brother and carried him inside her house.
       Zamora was shot seven times, three of which were fatal. Curiel was shot four times,
two of which were fatal. Santa Ana was shot five times, and although he survived, he acted
like he was dead. After appellants fled back the way they had come, Santa Ana saw his
friends were dead, so he tried to walk toward a nearby fire station but collapsed on the way.
       Hurtado heard the gunshots, emerged from her apartment to investigate, and saw
Santa Ana and the other two victims. As she checked on her children, Santa Ana walked
away. When she found him heading toward the fire station, he repeatedly told her “Terra
Bella” shot him.



                                                3
       Several Los Angeles police officers arrived at the scene. One officer approached
Santa Ana and said to him, “You’re going to die. Who shot you? What happened?” Santa
Ana responded, “Blacky from Terra Bella Street,” i.e., Bibiano, shot him. He told another
officer “Blacky” had tattoos of a “1” and a “3” on his forearms.4 At the hospital, Santa Ana
was shown a series of photographs and he identified all three appellants as the shooters.
       Thirteen shell casings, eight bullets, and two partial bullets were recovered from the
scene. A ballistics expert linked one of the casings to a gun used by Timothy Jenkins in a
shooting eight days earlier. Jenkins was a member of the Pacoima Pirus gang, which had a
friendly relationship with Terra Bella. He told police he traded the gun to Chambasis for
marijuana on the day before the shooting at San Fernando Gardens.
       All three appellants were arrested the day after the shooting. When officers
contacted Meraz, he briefly attempted to flee but was apprehended. Officers recovered a
cell phone and a belt buckle with the letter “T” on it. Chambasis and Bibiano were arrested
when officers stopped the car they were riding in together. Bibiano gave officers a false
name. A search of Chambasis’s residence yielded two Pittsburgh Pirates baseball caps with
“RIP, Bones” and “TBST” written on them, a rifle, a shotgun, and other items with his name
on them.
       While in custody, Bibiano and Meraz were placed in a cell together and their
conversation was secretly recorded. Bibiano said he was going to “do life.” He said
officers got him in “Bash’s car” about an hour before. He claimed he did not know anything
because he “was not even there.” Meraz also claimed he “wasn’t even there” and said he
did not know Bash. Bibiano responded, “Me neither.” Bibiano said, “The rest of my life
has gone to waste,” to which Meraz responded, “All because of some stupid shit.” Bibiano
said Bash had told him, “Don’t trip, dude,” and Bibiano had responded, “I’m no fuckin’ rat,
man.” Meraz commented, “If you rat, foo’, they’ll make paperwork on you,” and “when



4      When Bibiano was arrested the following day, he had tattoos matching Santa Ana’s
description, although by the time of trial he had turned the “1” into a “T” and the “3” into a
“B.”


                                               4
you get to the big house, they fuck you up, foo’. Don’t say anything.” Bibiano said, “Yeah,
I know. It doesn’t matter ain’t gonna happen. I don’t even got nothing. Shit, I was not
even there, man. What the fuck I’m gonna tell you?” Meraz claimed all the police had was
“a bunch of gossip.” Meraz said, “What saved me foo’, is that they asked me what I was
doing. And I told him that—that I was with Paula. And they called her and she said yes.”
Bibiano responded, “Hopefully my girl will also say yes.” They talked about serving life in
prison and Meraz said he had “lost everything . . . [a]ll because of one thing.” Bibiano said,
“We’ll never get out, dude. Never.” Bibiano said something about leaving the house and “I
wasn’t even gonna go out, foo’. I should’ve stayed, I should’ve stayed.” Meraz agreed.
When Bibiano said the police showed him a picture of Meraz, Meraz responded, “We
should’ve worn masks. Stupid ass, Bash.”
       During an interview about the murders, Bibiano began to cry. He denied knowing
Chambasis.
       At an interview with the police after appellants were arrested, Luis E. Orozco said
Bibiano “jumped” him into the gang and Terra Bella had “problems” with Project Boys after
Villa’s murder. Orozco was with appellants at a park three to five miles away from the San
Fernando Gardens at around 5:00 p.m. the day of the shooting. He let Bibiano borrow his
cell phone and Bibiano left the park around 5:20 p.m. After Bibiano left the park, he called
Orozco later at home and told him, “Don’t go outside there’s too much cops.” At some
point, Bibiano returned to say goodbye to his girlfriend and gave Orozco his phone back.
Bibiano began to watch the news, which Orozco found suspicious. In response to a story
showing “ladies crying” in “the Projects right here,” Bibiano seemed nervous and said,
“Man, fuck. I got to get the fuck out of here.” He said he had “fucked up” and he was
“going to hell.” A recording of the news broadcast from that day showed photographs of
Zamora and Curiel with signs reading “Rest in peace, Javier, Pimps” and “Rest in peace,
Justin.”
       A search of the phone Orozco said he lent Bibiano and the phone recovered from
Meraz revealed a text message was sent from Meraz’s phone to Orozco’s phone at 1:17 p.m.
the day after the shooting reading, “I’m going to Sinaloa tonight. I already got my ticket.”


                                              5
At 1:27 p.m., Orozco’s phone responded, “Can I go with you, or what[?]” At 7:05 p.m. on
the day of the shooting, Meraz’s phone sent a text message to a different number reading,
“On the run.”
       Officer Tyler Adams testified as a gang expert for the prosecution. He was assigned
to monitor Terra Bella and he gathered information by talking to gang members, both in and
out of custody, as well as interviewing them as part of conducting probation and parole
services. Terra Bell had approximately 30 members and their symbols included “13” to
signify affiliation with the Mexican Mafia and the hand signals and initials “TB” and
“TBS.” The gang’s primary activities were burglary, grand theft, carrying loaded and
concealed firearms, assault with firearms, assault likely to cause great bodily injury, and
felony vandalism. Officer Adams identified convictions of several Terra Bella gang
members for those types of crimes. He confirmed the rivalry between Terra Bella and
Project Boys, which became heated after Avila murdered Villa in May 2008.
       Officer Adams confirmed all three appellants were Terra Bella gang members.
Meraz had previously admitted he was a Terra Bella gang member and when Officer Adams
had previously stopped him, he had been with other gang members, had been wearing gang
attire, and had a “PTB” tattoo inside his bottom lip. During one stop, Meraz said he was
trying to get into Terra Bella and had to “smoke somebody” to do so. Bibiano had gang
tattoos and when Officer Adams previously stopped him, he had been with other gang
members. Officer Adams had also obtained a photograph showing Bibiano throwing gang
hand signals. Chambasis also had gang tattoos and Officer Adams had previously stopped
him in the presence of other Terra Bella gang members. Since his arrest, Chambasis had
added tattoos to his face and neck.
       Officer Adams testified to the importance of respect in a gang and “putting in work”
by typically committing crimes to move up in the gang. He believed the shooting in this
case was bold within Terra Bella, given it occurred during the day in rival gang territory.
When given a hypothetical question tracking the facts of the shooting, Officer Adams
opined the shooting was retaliatory for Villa’s murder. He also opined the murders were
associated with, committed for, and likely committed at the direction of Terra Bella.


                                               6
       Appellants did not testify. In his defense, Chambasis offered evidence that no
fingerprint analysis was done on the casings recovered at the scene of the shooting. He
elicited testimony that when police interviewed S.B. at the police station after the shooting,
she said the gunman she remembered was shorter than the officer interviewing her, who was
about five feet 10 inches tall, and had hair. She said the other men did not have guns.
When she was shown two books of photographs, she pointed to someone who was not
Chambasis and said, “Kind of No. 11 . . . but only had hair.” Chambasis also elicited
testimony that at the scene of the shooting and later in the hospital, Santa Ana claimed he
did not know one of the assailants. In his defense, Bibiano elicited testimony that Santa Ana
initially said at the scene of the shooting that he did not know from which direction the
gunmen had come. He also said appellants all wore black and Meraz was the one who said,
“Where you vatos from.” He did not see them in a car.
                                        DISCUSSION5
1. Santa Ana Impeachment Evidence
       During a break in Santa Ana’s direct examination, the parties and the court discussed
four possible areas for impeaching Santa Ana’s credibility: a prior sustained juvenile
petition for being a minor in possession of a firearm (former § 12101, subd. (a)(1), now
§ 29610); a sustained petition for contempt of court relating to a gang injunction (§ 166,
subd. (a)(4)); a sustained petition for identity theft (§ 530.5); and a recent arrest for battery
of a cohabitant and criminal threats (§§ 243, subd. (e), 422). After hearing argument from



5       Recently, our Supreme Court has condemned the common practice of codefendants
in a criminal appeal making “a blanket statement that he joins in the claims raised by each
of the others, to the extent that the claims are not in some manner adverse to their own
interest.” (People v. Bryant (2014) 60 Cal.4th 335, 363.) Here, in their opening briefs filed
before Bryant, Bibiano and Chambasis made the blanket joinder statements condemned in
Bryant. Bibiano also expressly joined one of Chambasis’s arguments. Meraz filed a pre-
Bryant separate statement specifically joining two of Chambasis’s arguments. In a reply
brief filed after Bryant was decided, Chambasis joined two of Meraz’s arguments. Bibiano
did not further address joinder in his reply brief or any other filing. Because some of the
briefing in this case predated Bryant, we will consider whether any argument raised by one
appellant would benefit the others.

                                                7
the parties, the court admitted the identity theft petition for impeachment purposes, but
excluded the contempt and firearm possession petitions because they were not crimes of
moral turpitude. The court postponed ruling on the domestic violence incident, but
eventually excluded it as discussed more fully below. Appellants argue the trial court
abused its discretion and violated their due process rights to confront witnesses and present
defenses by excluding evidence of the juvenile firearm possession and the domestic violence
incident. We disagree.
A. Juvenile Petition for Firearm Possession
         Appellants argue Santa Ana’s juvenile petition for possession of a firearm was a
crime of moral turpitude, so the court erred and violated their constitutional rights by
excluding it for impeachment purposes. Respondent assumes state law error and argues
appellants’ constitutional rights were not violated and any state law error was harmless. We
will also assume state law error because we find no constitutional violation and find any
state law error harmless.
         Limitations to a defendant’s cross-examination of a witness does not violate the
confrontation clause “‘unless the defendant can show that the prohibited cross-examination
would have produced “a significantly different impression of [the witnesses’] credibility.”’”
(People v. Smith (2007) 40 Cal.4th 483, 513.) Similarly, “the ‘[a]pplication of the ordinary
rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a
defense.’ [Citations.] Although completely excluding evidence of an accused’s defense
theoretically could rise to this level, excluding defense evidence on a minor or subsidiary
point does not impair an accused’s due process right to present a defense. [Citation.] If the
trial court misstepped, ‘[t]he trial court’s ruling was an error of law merely; there was no
refusal to allow [defendant] to present a defense, but only a rejection of some evidence
concerning the defense.’” (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) If the trial
court erred under state law only, we review the record to determine whether a more
favorable outcome was reasonably probable in the absence of the error. (Id. at pp. 1103-
1104.)



                                               8
       The trial court’s exclusion of Santa Ana’s juvenile petition for firearm possession did
not deprive appellants of their confrontation and due process rights because the jury heard
significant other evidence calling Santa Ana’s veracity into doubt. The trial court admitted
evidence of Santa Ana’s juvenile petition for identity theft, and he was questioned about it
in front of the jury. Santa Ana also admitted he had been a gang member and had placed
gang graffiti on a bench at the scene of the shooting, and he admitted he had previously lied
under oath that he was not a gang member and he had not done the graffiti. Santa Ana’s
juvenile petition for firearm possession was therefore only a subsidiary point that would not
have given the jury a significantly different impression of his credibility.
       Further, any state law error was harmless because other evidence beyond Santa Ana’s
testimony overwhelmingly demonstrated appellants’ guilt. S.B. identified Chambasis as one
of the gunmen and ballistics and other evidence linked Chambasis to one of the guns used in
the shooting. Meraz and Bibiano were caught on a jail recording making incriminating
statements, including Meraz telling Bibiano, “We should’ve worn masks,” which the trial
court properly admitted against Bibiano as an adoptive admission as we discuss below.
Meraz sent text messages after the shooting that he was “[o]n the run” and he was “going to
Sinaloa tonight,” to which Bibiano responded, “Can I go with you, or what[?]” Meraz
briefly fled from police before he was arrested. When Bibiano watched a news story on the
shooting, he said he had “fucked up,” he was “going to hell,” and he had “to get the fuck out
of here.” Finally, there was significant evidence of a retaliatory motive for the shooting to
avenge the shooting death of a fellow gang member.
B. Domestic Violence Incident
       Two days after trial began, Santa Ana was arrested for domestic violence and
criminal threats. During the parties’ and the court’s initial discussion of impeachment for
Santa Ana, the prosecutor objected to the admission of the incident under Evidence Code
section 352, arguing the evidence would be too time consuming and confusing because there
was no conviction and because the woman involved in the incident had a “history” that
would require the prosecution to “drag[] in the lady so that we can have a little minitrial
within a trial.” The court expressed concern that it did not have enough information and


                                               9
postponed ruling. The following day the prosecution turned over the police report for the
incident to defense counsel.
       At a later hearing, Meraz’s counsel argued that Santa Ana “went to great lengths to
distance himself from his prior life” and repeatedly testified “he no longer is that person that
he was before” and “[t]hat was his greatest mistake he has made,” leading the jury to believe
he was living a crime-free life. According to Meraz’s counsel, the recent domestic violence
incident “directly impeaches that. This is only a couple years out from when he last
supposedly was” a gang member. The court questioned how the incident involving
domestic violence related to Santa Ana distancing himself from being a gang member, but
postponed ruling pending further investigation.
       Later, Meraz’s counsel brought the victim into court, who was reluctant but willing
to testify consistent with the police report. Meraz’s counsel proffered that she would testify
Santa Ana went to her home, jumped out at her from the bushes, and punched her multiple
times in the face, head, and body, causing her to fall to the ground. He grabbed her by the
hair and pulled her across the concrete several feet until she screamed for help and ran
away. Meraz’s counsel indicated he planned to ask her about other incidents with Santa
Ana as well.
       The court noted the police report indicated she had bruising around her eye that
looked healed and possibly predated the incident, and she had no other injuries indicating
the incident occurred. The report also contained statements from Santa Ana that he was
home at the time, the victim had threatened to have him arrested if he did not take care of
his children, and she was intoxicated. The court also discussed a “DCFS report” in which
the victim was identified “as a perpetrator with 18 prior closed referrals for general neglect
and emotional abuse of her children.” The court further noted other reports involving the
victim returning to Santa Ana’s house intoxicated and belligerent in the days following the
domestic violence incident. On one occasion, the victim claimed Santa Ana threw her to the
floor and began strangling her, but she was able to get away. She told the police at the time
she was able to breathe and did not lose consciousness, but later changed her story. Santa
Ana denied the incident and according to his mother, the victim jumped over a six-foot-high


                                              10
fence to argue with Santa Ana, and the confrontation did not become physical. Finally,
there was a report claiming Santa Ana threatened the victim over the phone, which Santa
Ana denied. Instead, he claimed he told the victim to leave him alone and she threatened
him, saying he should “watch his back because she was going to have him killed.” The
court noted these reports created “huge credibility conflicts” in a “he-said/she-said reporting
environment where there’s an ongoing domestic-related conflict between these two people.”
       The court explained that the prosecution filed a motion to exclude this evidence
pursuant to Evidence Code section 352 because it was not clear who was telling the truth
and it was a “messy situation.” Meraz’s counsel argued the jury could believe Santa Ana
was a violent person, contradicting how he presented himself on the stand, and another
witness was available to corroborate the threats he made over the phone. The prosecutor
responded that Santa Ana had not yet been convicted and presenting the evidence would
entail numerous witnesses, shifting the jury’s focus away from the main issues.
       The court ruled the evidence went to the “collateral” issue of impeachment based on
misdemeanor conduct and presented a “classic trial within a trial if I’ve ever seen one” that
would require an “array” of witnesses. Further complicating matters, the victim may have
had a valid basis to refuse to testify, and even if she testified, the court could not simply
limit the evidence to her testimony in order to be fair to both sides. The court also noted the
allegations had not been proven in any court. Thus, because this evidence would consume
an undue amount of time and would risk confusing the jury, the court excluded it.
       “A trial court has broad discretion under Evidence Code section 352 to ‘exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.’ This discretion allows
the trial court broad power to control the presentation of proposed impeachment evidence
‘“‘to prevent criminal trials from degenerating into nitpicking wars of attrition over
collateral credibility issues.’”’” (People v. Mills (2010) 48 Cal.4th 158, 195.) While
impeachment evidence of conduct involving moral turpitude not amounting to a felony is
admissible, it “is a less forceful indicator of immoral character or dishonesty than is a


                                               11
felony. Moreover, impeachment evidence other than felony convictions entails problems of
proof, unfair surprise, and moral turpitude evaluation which felony convictions do not
present. Hence, courts may and should consider with particular care whether the admission
of such evidence might involve undue time, confusion, or prejudice which outweighs its
probative value.” (People v. Wheeler (1992) 4 Cal.4th 284, 296-297.) We review the trial
court’s exclusion of impeachment evidence for abuse of discretion. (Mills, supra, at
p. 195.)6
       The trial court acted within its discretion in excluding evidence of Santa Ana’s recent
domestic violence arrest under Evidence Code section 352. The probative value of this
evidence was low. Appellants emphasize that Santa Ana gave the impression to the jury
that he was fully reformed from his criminal past as a gang member, so evidence of the
recent domestic violence incident would have brought his credibility into doubt. If the jury
did get this impression, it was weak at best. Santa Ana called being in the gang “a mistak[e
in] life that I made” and said, “There was a few times where I did lie. But after I realized I
made a big mistake I came clean with the truth to this day.” Appellants have not pointed to
any testimony where he claimed to be currently crime-free or that he had reformed
completely. Moreover, as discussed above, there was other evidence questioning Santa
Ana’s credibility, so evidence of the domestic violence incident had only limited additional
impeachment value. On the other side of the scale, the trial court correctly recognized the
reports created a “he-said/she-said reporting environment where there’s an ongoing
domestic-related conflict between these two people,” which the jury would have had to
resolve following a substantial minitrial with numerous witnesses, consuming significant
time during an already lengthy trial and creating a risk of jury confusion.7


6     Meraz suggests our review is de novo because the evidence was admissible under
Evidence Code section 1101. Whether or not correct, the trial court excluded the evidence
pursuant to Evidence Code section 352, so our review is for abuse of discretion.
7      Meraz cites Andrews v. City and County of San Francisco (1998) 205 Cal.App.3d
938, but it is distinguishable. In that case, the Court of Appeal faulted the trial court for
excluding all evidence of a witness’s past misconduct, thereby leaving the witness’s

                                               12
       Nor did the trial court violate appellants’ constitutional rights to confrontation and
due process. As we concluded with the trial court’s exclusion of Santa Ana’s juvenile
petition for firearm possession, the admission of evidence underlying the domestic violence
incident would not have given the jury a significantly different impression of Santa Ana’s
credibility and appellants were free to cross-examine him and offer other impeachment
evidence, so they were not prevented from putting on a defense.
       Finally, for reasons already discussed, any error in excluding this impeachment
evidence was harmless because the evidence of appellants’ guilt was overwhelming.
3. Gang Expert Testimony
       Joined by Chambasis, Meraz argues the trial court violated his Sixth Amendment
right to confrontation by allowing Officer Adams to give expert opinions based on out-of-
court testimonial hearsay from declarants whom appellants did not have an opportunity to
cross-examine. Respondent argues appellants forfeited this issue by failing to object on this
ground in the trial court. Meraz correctly responds that any objection would likely have
been futile because the trial court was bound to follow appellate decisions holding that
expert “basis” evidence does not violate the confrontation clause because it is not offered for
its truth. (See, e.g., People v. Hill (2011) 191 Cal.App.4th 1104, 1128-1131.) We will
therefore address the merits of this claim.
       The admission of testimonial out-of-court statements violates a defendant’s
confrontation clause rights unless the witness is unavailable to testify and the defendant had
a prior opportunity for cross-examination. (People v. Valadez (2013) 220 Cal.App.4th 16,
30 (Valadez).) The confrontation clause does not apply to out-of-court statements not
offered for their truth. (Valadez, at p. 30.) Although appellate cases have held that gang
expert “basis” evidence is not offered for its truth, as we recently pointed out in Valadez,
“[i]f the currently constituted [United States and California Supreme Courts] were called
upon to resolve this issue, it seems likely the holdings in [cases finding] out-of-court


testimony “untarnished,” whereas the jury in this case heard other evidence impeaching
Santa Ana’s credibility. (Id. at p. 947.)


                                              13
statements offered as expert basis evidence are not offered for their truth for confrontation
purposes will be significantly undermined.” (Id. at p. 32.)8 Appellant urges us to find the
expert basis evidence in this case was offered for its truth. We decline to address that issue,
however, because we find the evidence on which Officer Adams relied for his opinions was
not testimonial and therefore not subject to the confrontation clause. (220 Cal.App.4th at
p. 32.)
          We need not repeat the exhaustive discussion of the applicable law on testimonial
statements we set out Valadez. Suffice it to say, in that case, we identified the two-part test
our Supreme Court has adopted to determine whether a statement is testimonial: “‘First, to
be testimonial the statement must be made with some degree of formality or solemnity.
Second, the statement is testimony only if its primary purpose pertains in some fashion to a
criminal prosecution.’” (Valadez, supra, 220 Cal.App.4th at p. 35.) In Valadez, we found
no confrontation clause violation from a gang expert witness relying on “background
information from written materials and casual, consensual conversations with gang
members and other officers” about the history of the gangs because those conversations did
not bear “any degree of solemnity or formality” or “resemble[] in any way formal dialogue
or interrogation” and “nothing in the circumstances of [the expert’s] interactions with gang
members and other officers objectively indicates the primary purpose of [the expert’s]
questioning was to target appellants or any other individuals or crimes for investigation or to
establish past facts for a later criminal prosecution.” (Valadez, at pp. 35-36.) Instead, it was
information “gang expert witnesses almost surely must” obtain to become experts (id. at
p. 35) and was “the same type of information gathered and used by every gang expert in the
field” (id. at p. 36).
          The information on which Officer Adams relied to give his opinions in this case was
indistinguishable from the information in Valadez. At trial, Officer Adams formed his



8     The California Supreme Court has granted review in People v. Sanchez (2014) 223
Cal.App.4th 1, review granted May 14, 2014, S216681, to determine whether a defendant’s
confrontation right was violated by a gang expert’s reliance on testimonial hearsay.


                                               14
opinions from speaking with gang officers and detectives to gather intelligence about gangs,
attending a conference during which he spoke with federal agents and other police
departments regarding gang crimes, and reviewing training and other written materials.
During the course of monitoring Terra Bella and other gangs, he obtained the “majority” of
his gang intelligence by “speak[ing] with gang members of all levels and ages, both in and
out of custody, whether they’re suspects, victims, witnesses, or none of the above” and by
conducting “probation and parole services, at which time we would interview them about
just general gang life.” As in Valadez, none of this information bore any discernable degree
of formality or solemnity and did not pertain to any particular criminal prosecution to render
it testimonial under the confrontation clause.9 Thus, we reject appellants’ claims.
4. Admission of Meraz’s “Masks” Statement
       Before trial, the trial court held a hearing on the admissibility of Meraz’s secretly
recorded statement to Bibiano while they were in custody, “We should’ve worn masks.
Stupid ass, Bash.” Bibiano coughed, but did not respond to the comment. In seeking its
admission, the prosecution argued the statement was an adoptive admission. The trial court
agreed. It explained at the time of the recording Meraz and Bibiano knew they were in
custody for a double homicide, they spoke in “hushed, secretive tones, often in Spanish
designed to mask their conversation and keep it secretive,” and no one from law
enforcement was present. During the conversation, they spoke freely and each was
“adopting the statements of the other with no disagreements between them.” The trial court
believed it was “very clear to the court that both defendants are implicating themselves and
their co-defendant, Mr. Chambasis.” Thus, the “masks” statement was admissible against
Bibiano as an adoptive admission.




9       We reject appellants’ argument that minute orders and court dockets showing
convictions of other gang members were testimonial and violated his confrontation clause
rights. (People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 [documents showing “acts
and events relating to convictions and imprisonments” are not testimonial under the
confrontation clause].)


                                              15
       Bibiano argues on appeal the trial court erred in admitting Meraz’s statement against
him as an adoptive admission. We review the trial court’s ruling for abuse of discretion
(People v. DeHoyos (2013) 57 Cal.4th 79, 132) and we find none.
       “Evidence of a statement offered against a party is not made inadmissible by the
hearsay rule if the statement is one of which the party, with knowledge of the content
thereof, has by words or other conduct manifested his adoption or his belief in its truth.”
(Evid. Code, § 1221.) “‘If a person is accused of having committed a crime, under
circumstances which fairly afford him an opportunity to hear, understand, and to reply, and
which do not lend themselves to an inference that he was relying on the right of silence
guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak,
or he makes an evasive or equivocal reply, both the accusatory statement and the fact of
silence or equivocation may be offered as an implied or adoptive admission of guilt.’
[Citations.] ‘For the adoptive admission exception to apply, . . . a direct accusation in so
many words is not essential.’ [Citation.] ‘When a person makes a statement in the presence
of a party to an action under the circumstances that would normally call for a response if the
statement were untrue, the statement is admissible for the limited purpose of showing the
party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered
as a tacit admission of the statements made in his presence.’” (People v. Riel (2000) 22
Cal.4th 1153, 1189 (Riel).) “‘To warrant admissibility, it is sufficient that the evidence
supports a reasonable inference that an accusatory statement was made under circumstances
affording a fair opportunity to deny the accusation; whether defendant’s conduct actually
constituted an adoptive admission becomes a question for the jury to decide.’” (Id. at
pp. 1189-1190.)
       The trial court did not abuse its discretion in admitting Meraz’s “masks” statement as
an adoptive admission by Bibiano. Riel is instructive. In that case, a witness testified that
the defendant and two others came to her home, and the defendant told her “‘they had gotten
fucked up and that there was a man in a coma.’” (Riel, supra, 22 Cal.4th at p. 1188.) When
the witness asked the defendant what happened, the other two individuals “did the talking,”
and one made various statements about what “they” did. (Ibid.) On appeal, the defendant


                                              16
argued the statements were not adoptive admissions because it was unclear whether the
references to “they” included the defendant. The court found the circumstances supported
an inference that the references to “they” included defendant because all three individuals
were present, the defendant spoke first, the individual making the “they” statements did so
in response to a question directed to the defendant, and if the reference to “they” did not
include the defendant, one would have expected the defendant to have clarified that. “The
circumstances warranted presenting the evidence to the jury and letting the jury decide what
weight to give it.” (Id. at p. 1189.)
       Here, Bibiano was sitting with Meraz while they were in custody alone, there was no
indication he did not understand what Meraz meant by the “masks” comment, and the
comment called for a denial if Bibiano was not part of the “we” in “We should’ve worn
masks.” Meraz’s comment also came well into their conversation, during which they spoke
freely in hushed tones about their arrests for a double homicide, their potential sentences,
and their potential alibis. As the trial court noted, at no point did they disagree with one
another. As in Riel, the circumstances supported admitting Meraz’s “masks” statement
against Bibiano and allowing the jury to decide what weight to give it.
5. Cumulative Trial Error
       Because we have assumed only one error and have found it harmless, we reject
appellants’ claim that cumulative error warrants reversal.
6. Chambasis’ Motion to Represent Himself at Sentencing
       On the day of Chambasis’ sentencing, he moved pursuant to People v. Marsden
(1970) 2 Cal.3d 118 to substitute his counsel. In an in camera hearing, he expressed
dissatisfaction with his counsel’s performance during trial. The court asked why he had not
brought this up during trial, and he responded, “I don’t know anything about law. I didn’t. I
been researching it now.” He said he would like to “go pro per for my Sixth Amendment.”
When the court told him he was going to be sentenced that day, he indicated he wanted to
exercise his Sixth Amendment rights. The court responded, “I think I understand what
you’re trying to do here.” Chambasis’s counsel addressed the complaints and the court
indicated it did not “see any issues” with counsel’s performance. Chambasis asked if the


                                               17
court was denying him his “Sixth Amendment pro per.” The court asked if he was asking to
represent himself, and he responded, “Or get another attorney.” The court said, “Well, it’s a
little late in the game for that.” It explained, “You have had [defense counsel] on your case
for years now. You have been through two trials with him. This is the first time you’ve
mentioned something like this in years. And I’m going to say another thing. I have been
watching you and watching your conduct during the trial. You’re an extremely
manipulative person. And I view part of this effort that you’re making right now to avoid
being sentenced in this case at this point. And I’m making note of that.”
       The court asked him to explain why he had not made a complaint about his attorney
before now. He responded that he had no one to complain to and he did not know about the
law. He said he “look[ed] into it” and discovered he could talk to the court. He raised one
of the issues he thought his counsel should have raised at trial, but the court said his counsel
was experienced and the court was not going to “second-guess” his decisions. When the
court said it understood Chambasis wanted to represent himself, he disagreed, saying he was
asking for another lawyer “or I’m going to have to represent myself.” The court said his
request for another attorney was not timely, so he said, “I’ll go pro per.” The court
explained: “[I]f you want to represent yourself for the sentencing, which will be today, I’m
not going to deprive you of that; but you will lose the advocate that you have here who
knows more about your case than anybody. And I’m not going to continue the matter,
because your request is not timely.”
       The court gave Chambasis two options: “based on the fact that so much time has
gone by and you are bringing this up on the very moment of your sentence, that you can
have [defense counsel] represent you for the sentencing today or, if you feel so disturbed by
that that you want to represent yourself for the sentencing hearing today, you can do that.”
Chambasis said he wanted to represent himself, but that he would need “[a]t least a month”
to prepare for sentencing. The court responded, “Well, if you want time, I’m finding that
your request is untimely. I’m prepared and everyone else is prepared to go forward with
your sentencing today. I’m not going to grant a continuance. There is not good cause to
grant a continuance at this point based upon this late notice. [¶] So my suggestion is you


                                               18
have [defense counsel] represent you for the sentencing, or you can represent yourself today
if you’re so inclined and want to do that for this sentencing today.” Chambasis reiterated
that he needed to “study.” The court reiterated it would not continue the matter and
recommended against Chambasis representing himself. It explained, “I could just as easily
deny your request to have you represent yourself pro per, but that puts me between a rock
and a hard place in the sense that if you are so inclined to represent yourself for today’s
purpose, then that would be it. For the sentencing you’d have to waive your right to have an
attorney represent you, with all of my counseling you to not do that. Or you can have
[defense counsel] represent you.” The court gave him a Faretta10 waiver form and repeated
that it believed Chambasis was trying to manipulate the court. In the exchange that
followed, Chambasis repeatedly said he was not going to proceed with the case, and the
court repeatedly told him it would not grant him a continuance. Chambasis ultimately
decided against representing himself and his counsel represented him at sentencing.
       Later in open court, the court further explained it would not have granted
Chambasis’s request to represent himself due to the “disruptions in my court that were
caused by Mr. Chambasis, that throughout the trial proceedings I had received continuous
information from the bailiffs of Mr. Chambasis’ disruptive behavior and failure to conform
to the rules of the court and through the bailiff. He, Mr. Chambasis, during one point in the
trial attempted to attack one of the witnesses who was being brought back, had to be brought
down, caused a melee in the courtroom. And these would be reasons why the court would
not feel comfortable in granting pro per status to a defendant under those circumstances, one
not willing to conform to the rules and etiquette of the court. [¶] Also, just for the record,
Mr. Chambasis’ requests for pro per status, which he has now withdrawn, were equivocal, in
that he wanted to go pro per only after being told that he was not going to have a change of
lawyers and that his decisions were more of a reaction to that than a sincere desire to
represent himself.”



10     Faretta v. California (1975) 422 U.S. 806 (Faretta).


                                               19
       Chambasis argues the court abused its discretion in finding his request to represent
himself untimely and forcing him to choose between keeping his current counsel for
sentencing or representing himself without a continuance. We disagree.
       A criminal defendant has a constitutional right to represent himself at trial if he
makes a timely and unequivocal request to do so. (People v. Scott (2001) 91 Cal.App.4th
1197, 1203.) But “‘when a defendant has elected to proceed to trial represented by counsel
and the trial has commenced, it is thereafter within the sound discretion of the trial court to
determine whether such a defendant may dismiss counsel and proceed pro se.’” (People v.
Miller (2007) 153 Cal.App.4th 1015, 1021, quoting People v. Windham (1977) 19 Cal.3d
121, 124 (Windham).) The factors a trial court must consider in determining whether to
grant a midtrial request include “the quality of counsel’s representation of the defendant, the
defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and
stage of the proceedings, and the disruption or delay which might reasonably be expected to
follow the granting of such a motion.” (Windham, supra, at p. 128.) The trial court need
not expressly address all the relevant factors so long as the record reflects the court
implicitly considered them. (Scott, supra, at p. 1206.)
       In arguing that his request to represent himself was timely, Chambasis relies on
People v. Miller. In that case, the defendant requested to represent himself after the trial
ended but two months before his sentencing, and the trial court denied the request as
untimely. (People v. Miller, supra, 153 Cal.App.4th at pp. 1019-1020.) The Court of
Appeal reversed, reasoning that sentencing is a posttrial proceeding, so the defendant’s
request was timely made before that proceeding, and Faretta compelled the trial court to
grant the defendant’s request as long as it was knowing and intelligent. (People v. Miller, at
pp. 1023-1024.) Later, however, the California Supreme Court in People v. Doolin (2009)
45 Cal.4th 390 (Doolin) found a Faretta request untimely when the defendant made it on the
day scheduled for sentencing and requested a continuance to prepare. (Doolin, at p. 452.)
The court distinguished People v. Miller, noting the defendant made the request in that case
two months before sentencing, whereas in Doolin, under the facts the “defendant’s right to



                                               20
self-representation at sentencing was not absolute but subject to the court’s discretion.”
(Doolin, at p. 455, fn. 39.)
       We find Doolin controlling and find Chambasis’s request to represent himself on the
day of sentencing was untimely. Doolin makes clear that a request on the day of sentencing,
like a request on the first day of trial, is untimely. (Doolin, supra, 45 Cal.4th at pp. 454-
455; see Windham, supra, 19 Cal.3d at p. 128, fn. 5.) People v. Miller, on the other hand,
involved a request made two months before sentencing, clearly not the circumstance here.
Chambasis attempts to analogize to People v. Miller and distinguish Doolin by arguing he
did not appear before the court during the seven weeks between the jury’s verdict and his
sentencing, so he moved to represent himself at his first opportunity before the court. But
Doolin involved a similar four-week period between the verdict and sentencing, yet the
court still found appellant’s request at sentencing “manifestly untimely.” (Doolin, supra, 45
Cal.4th at pp. 452, 454.) Moreover, Chambasis has not explained why he could not have
told his attorney during the period between the verdict and his sentencing that he wanted to
represent himself, who could have then informed the court of his request.
       Turning to the factors in Windham, we find no abuse of discretion. Although
Chambasis had not shown a proclivity to substitute counsel, the court was reasonably
concerned he was trying to “manipulate” the court to delay his sentencing. Throughout the
proceeding, Chambasis showed a complete disrespect for the judicial process. As the trial
court noted, during trial he attacked a witness, which caused a melee in the courtroom and
resulted in him and the other defendants being restrained during trial. The record further
reflects that, after the verdicts were read, he said, “Fuck all you motherfuckers. This is
Terra Bella gang, fool”; and at sentencing, he told the prosecutor, “Shut your bitch ass up.”
Moreover, Chambasis’s disagreement with his counsel was largely over trial tactics and the
trial court could not identify any issues with counsel’s performance. Finally, Chambasis’s
request would have caused at least a month delay in his sentencing. (People v. Valdez
(2004) 32 Cal.4th 73, 103 [“‘[A] midtrial Faretta motion may be denied on the ground that
delay or a continuance would be required.’”].) Thus, the trial court acted within its
discretion in denying Chambasis’s untimely Faretta request.


                                               21
7. Meraz and Bibiano’s Sentences to Life Without Parole
       Because Meraz was 16 years old and Bibiano was 17 years old at the time of the
shooting, they challenge their sentences for life without parole as violating the Eighth
Amendment prohibition against cruel and unusual punishment. Specifically, Bibiano argues
the Eighth Amendment categorically bans all life without parole sentences for juveniles and
they both argue California’s life without parole scheme violates the United States Supreme
Court’s recent decision in Miller v. Alabama (2012) __ U.S. __ [132 S.Ct. 2455] (Miller),
which prohibited the mandatory imposition of life without parole sentences for juveniles
who commit homicide offenses. Bibiano further argues he was not among the category of
juvenile offenders for which a life without parole sentence would be appropriate and Meraz
argues the trial court failed to consider his individual circumstances in sentencing him to life
without parole. We reject each of these challenges.
A. Legal Background
       The Eighth Amendment to the United States Constitution provides: “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” In recent years, the United States Supreme Court has narrowed the available
punishments for juveniles under the Eighth Amendment. In Roper v. Simmons (2005) 543
U.S. 551, it held the Eighth Amendment bars capital punishment for juvenile offenders, and
in Graham v. Florida (2010) 560 U.S. 48, it held the Eighth Amendment bars a sentence of
life without parole for juveniles who commit nonhomicide offenses. (Miller, supra, __ U.S.
at p. __ [132 S.Ct. at p. 2463].) Most recently, Miller held the Eighth Amendment “forbids
a sentencing scheme that mandates life in prison without possibility of parole for juvenile
offenders.” (Id. at p. 2469.) It reasoned, “Mandatory life without parole for a juvenile
precludes consideration of his chronological age and its hallmark features—among them,
immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents
taking into account the family and home environment that surrounds him—and from which
he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the
circumstances of the homicide offense, including the extent of his participation in the
conduct and the way familial and peer pressures may have affected him. Indeed, it ignores


                                              22
that he might have been charged and convicted of a lesser offense if not for incompetencies
associated with youth—for example, his inability to deal with police officers or prosecutors
(including on a plea agreement) or his incapacity to assist his own attorneys. [Citations.]
And finally, this mandatory punishment disregards the possibility of rehabilitation even
when the circumstances most suggest it.” (Id. at p. 2468.)
       In California, section 190.5, subdivision (b) provides that the penalty for 16- or 17-
year-old juveniles who commit special circumstance murder “shall be confinement in the
state prison for life without the possibility of parole or, at the discretion of the court, 25
years to life.” (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1360 (Gutierrez).) “For
two decades . . . , section 190.5(b) has been construed by our Courts of Appeal and trial
courts as creating a presumption in favor of life without parole as the appropriate penalty for
juveniles convicted of special circumstance murder.” (Ibid.) In light of Miller, the
California Supreme Court in Gutierrez overruled that line of authority and construed section
190.5, subdivision (b) to “confer[] discretion on a trial court to sentence a 16- or 17-year-old
juvenile convicted of special circumstance murder to life without parole or to 25 years to
life, with no presumption in favor of life without parole.” (Gutierrez, at p. 1360.) The court
further held that “Miller requires a trial court, in exercising its sentencing discretion, to
consider the ‘distinctive attributes of youth’ and how those attributes ‘diminish the
penological justifications for imposing the harshest sentences on juvenile offenders’ before
imposing life without parole on a juvenile offender.” (Id. at p. 1361.) As discussed in
Miller, those attributes include (1) a juvenile offender’s “‘chronological age and its hallmark
features—among them, immaturity, impetuosity, and failure to appreciate risks and
consequences’”; (2) “any evidence or other information in the record regarding ‘the family
and home environment that surrounds [the juvenile]—from which he cannot usually
extricate himself—no matter how brutal or dysfunctional,’” including “evidence of
childhood abuse or neglect, familial drug or alcohol abuse, lack of adequate parenting or
education, prior exposure to violence, and susceptibility to psychological damage or
emotional disturbance”; (3) “any evidence or other information in the record regarding ‘the
circumstances of the homicide offense, including the extent of [the juvenile defendant’s]


                                                23
participation in the conduct and the way familial and peer pressures may have affected
him’”; (4) “any evidence or other information in the record as to whether the offender
‘might have been charged and convicted of a lesser offense if not for incompetencies
associated with youth—for example, his inability to deal with police officers or prosecutors
(including on a plea agreement) or his incapacity to assist his own attorneys’”; and (5) “any
evidence or other information in the record bearing on ‘the possibility of rehabilitation,’”
including the extent or absence of criminal history. (Gutierrez, at pp. 1388-1389.)
B. Challenges to California’s Sentencing Scheme
       In their appellate briefs filed before Gutierrez, Meraz and Bibiano attacked the
constitutionality of section 190.5, subdivision (b) based on Miller. Gutierrez now forecloses
those arguments. Bibiano argues the Eighth Amendment as construed in Miller bars life
without parole sentences for all juvenile offenders. The court in Miller left that issue open,
although it noted, “[G]iven all we have said in Roper, Graham, and this decision about
children’s diminished culpability and heightened capacity for change, we think appropriate
occasions for sentencing juveniles to this harshest possible penalty will be uncommon. . . .
Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases,
we require it to take into account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.” (Miller, supra, __ U.S.
at p. __, citation omitted [132 S.Ct. at p. 2469, citation omitted].) In Gutierrez, our Supreme
Court interpreted Miller as holding that “a state may authorize its courts to impose life
without parole on a juvenile homicide offender when the penalty is discretionary and when
the sentencing court’s discretion is properly exercised in accordance with Miller.”
(Gutierrez, supra, 58 Cal.4th at p. 1379.) We are bound by Gutierrez’s interpretation of
Miller and reject Bibiano’s challenge. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
       Meraz and Bibiano both argue section 190.5, subdivision (b) violates the Eighth
Amendment because it creates a presumption in favor of life without parole for juvenile
homicide offenders. As noted, before Miller, this provision was judicially construed to
create such a presumption. (Gutierrez, supra, 58 Cal.4th at p. 1360.) However, Gutierrez


                                              24
construed the statute to eliminate any presumption, thereby avoiding any constitutional
infirmity. (Id. at p. 1387.)11
C. Challenges to Meraz’s and Bibiano’s Sentences
       Meraz further argues the trial court in this case failed to take into account the relevant
factors under Miller and Gutierrez in sentencing him to life without parole and Bibiano
contends he was not among the category of juvenile homicide offenders for whom life
without parole is a constitutionally permissible sentence. They were sentenced after Miller
but before Gutierrez. Nevertheless, we find the trial court was aware of the relevant factors
related to their youth and acted within its discretion given the limited record before it in
sentencing both of them to life without parole.
       In a prehearing sentencing memorandum filed after Miller, the prosecutor requested
life without parole for both appellants, citing their violent natures and the violent nature of
the crimes. Although the memorandum acknowledged the trial court had discretion to
impose life without parole on Meraz and Bibiano as minors, it did not mention Miller or any
of the other factors set forth in Miller. Neither counsel for Meraz nor Bibiano submitted a
sentencing memorandum. At both Meraz and Bibiano’s sentencing hearings, the trial court
indicated it had read their preplea probation reports. Those reports described the
circumstances of the current crimes and noted each appellant’s juvenile criminal history:
Meraz had a juvenile history of assault and assault with great bodily injury, and Bibiano had
a juvenile history of vehicle theft, receiving stolen property, and criminal threats. The
report contained no discussion of the other youth-related factors set out in Miller, but when
asked after trial, counsel for both Meraz and Bibiano declined to request presentence reports
and stipulated to the trial court using the preplea reports for sentencing. At both sentencing


11     Bibiano further argues section 190.5 is not saved by the recent enactment of section
1170, subdivision (d)(2), which generally allows a person sentenced to a crime committed
while he was under 18 years of age to petition for resentencing after serving at least 15
years, provided certain requirements are met. (§ 1170, subd. (d)(2); Gutierrez, supra, 58
Cal.4th at pp. 1384-1385.) The court in Gutierrez agreed the enactment of this provision did
not remedy the problem with a presumptive life without parole sentence for juveniles
pursuant to section 190.5, subdivision (b). (Gutierrez, supra, at pp. 1385-1387.)


                                               25
hearings, neither defendant nor any witnesses gave statements, although the trial court
provided the opportunity to do so.
       At Meraz’s hearing, his counsel argued against life without parole because Meraz
was 16 years old at the time of the offense and “under the new case law it would be cruel
and unusual punishment to sentence him as such.” The prosecutor responded, “the People
are asking for [a life without parole] sentence, given the double homicide. The case law that
[Meraz’s counsel] is referring to does not apply in this case, and the appropriate sentence is
life without possibility of parole.” The court stated it had reviewed Miller, as well as People
v. Caballero (2012) 55 Cal.4th 262, and People v. Moffett (review granted Jan. 3, 2013,
S206771, remanded by, superseded by, sub nom. Gutierrez, supra, 58 Cal.4th 1354),12 and
that it was “aware of” section 190.5, subdivision (b), all of which was “part of my thought
process in terms of arriving at the appropriate sentence.”
       The court then extensively described the circumstances of the current crimes:
       “[O]n the date of these offenses Mr. Meraz possessed a firearm, loaded, conspired
with two other fellow gang members. Each of them possessed additional firearms. And
they entered into rival gang territory seeking a revenge killing in retaliation for a previous
murder of one of their own that was believed to have been perpetrated by a rival gang. That,
I think, was the logical interpretation of the evidence.
       “And in committing these crimes, all of the three defendants, including Mr. Meraz,
walked directly into the heart of their rival’s territory in broad daylight, without any
disguises or cover, and approached a porch where the three victims were standing or seated,
unarmed, caught by surprise, and completely defenseless.



12      People v. Caballero held that imposing an aggregate term of over 100 years on a
juvenile for a nonhomicide offense violated the Eighth Amendment. (People v. Caballero,
supra, 55 Cal.4th at p. 265.) People v. Moffett was one of the two appeals the Supreme
Court considered in Gutierrez. The Court of Appeal in that case remanded the defendant’s
life without parole sentence in light of Miller to allow the trial court to consider the
defendant’s murder count without reference to a presumption in favor of life without parole.
(Gutierrez, supra, 58 Cal.4th at p. 1365.)


                                               26
         “The defendant and his two companions surrounded each of those victims from all
sides to prevent escape. In the manner of a firing squad execution essentially is what it was,
each of them together, they simultaneously fired multiple rounds at these three victims,
killing two and severely wounding one. There were young children at play at the time and
other persons who were in the house directly behind where the victims were standing or
seated on that porch.
         “The manner in which these killings took place, in this court’s view, was brazen and
meant to send a clear message to their rivals. And in the perpetration of these crimes the
defendant was an actual shooter, having personally discharged a firearm, causing death, for
the benefit of his gang. And these are consistent with the jury’s findings. The evidence
clearly established in this court’s view that in each of the murders and the attempted murder
the defendant was an active participant and intended to kill his victims, having fired at close
range, firing multiple times at all victims who were in close proximity to one another on that
porch.
         “The court further derives from the evidence that the defendant’s actions were
planned, they were premeditated, and they demonstrated a high degree of cruelty,
viciousness, and callousness. I’ve also reviewed the probation report and note that the
defendant has a criminal history, which also includes previous acts of violence and threat of
violence as one could read from that report.
         “All of these factors that I have just spoken of together warrant in my view the
imposition of a sentence of life without the possibility of parole, and that is notwithstanding
that the defendant was 16 years of age at the time that he committed these crimes. In that
process the court has reviewed and weighed and considered lesser penalties, including life
sentences with substantial custody time but with the possibility of parole. But in light of—
and it has reviewed the cases that I just talked about earlier. But I do find that these factors
in aggravation so far outweigh anything that would mitigate to a lesser sentence that it
causes me to believe that a life sentence without the possibility of parole is the appropriate
sentence in this case.”



                                               27
       At Bibiano’s hearing, Bibiano’s counsel briefly delved into Bibiano’s upbringing,
pointing out he had a “very bad childhood. . . . His mother left him in Mexico, came to L.A.
and then sent for him several years later. And within three months of him arriving in L.A.,
he was in foster care and part of the system. [¶] He then came out of foster care, stayed
with his mother about two or three months; and she sent him to Atlanta to live with his
father. His father sent him back to his mother, and then he went back into foster care. [¶]
And as a result of not having a nurturing mother, who chose her boyfriend over her children,
my client drifted into the gang lifestyle. So—which showed his poor judgment and ended
up resulting in this conviction because of the poor choices he made, which I think were
attributable to the fact that he was 17 when the crimes were committed and at 17 he didn’t
have a fully developed mind. He had the mind-set of an adolescent, of a person under the
age of 18.” Bibiano’s counsel reminded the court of its discretion under section 190.5,
subdivision (b) and argued “in light of Miller versus Alabama and some other recent cases
that have come up, saying that [life without parole] for juveniles is cruel and unusual
punishment under the Eighth Amendment and a sentence of [life without parole] for a
juvenile and somebody Mr. Bibiano’s age is basically a death sentence. He’s right now 21
years old. And that leaves no room for him to show any rehabilitation or maturity or
anything that he might attain at this point forward showing that he should be given a chance
to have some meaningful opportunity for rehabilitation and re-entry into society.”
       The prosecutor responded, “[D]espite whatever adversity, the choice was made to go
into the gang and the choice was made to ambush two—three defenseless victims and
slaughter them. And, given that choice, [a life without parole] sentence is appropriate.”
       The court acknowledged it was “aware of the cases that you’re citing and the statutes
that you’re citing for the defense and has reviewed those. I would indicate that none of
those cases preclude a life without parole sentence for a person between the ages of 16 and
18; but most importantly it requires the court to exercise discretion and consider lesser
punishment, which, of course, I have done. I’m also taking into account the statements that
you just addressed with regard to Mr. Bibiano’s background. So I have taken, I believe,
everything that I’ve had before me into consideration in making this decision.”


                                              28
        Then, as it had done at Meraz’s sentencing, the court extensively described the
circumstances of the current crimes:
        “Balancing what you’ve said about his background with what are very obviously
patent aggravating factors here, I just want to go over some of those to put this in proper
context. When these offenses were committed, we start out with Mr. Bibiano having taken
possession of a loaded firearm. We also have him having conspired with two other fellow
gang members of the Terra Bella gang, who themselves each possessed additional firearms.
They entered into rival gang territory seeking revenge and retaliation for a previous murder
that had occurred, the murder of one of their own and which they believed to have been
perpetrated by a rival, this rival gang. So that is the background context.
        “But in committing these crimes, all three defendants, Mr. Bibiano as active as any of
the others, walked directly into the heart of their rival’s territory in broad daylight, without
any disguises or cover, and approached a porch where there were three young men standing
or sitting. They were, these victims, unarmed at the time. They were completely caught by
surprise and completely defenseless at the time of the shootings in this case.
        “The defendant, Mr. Bibiano, and his two companions, all armed at the time,
surrounded their victims from all sides to prevent escape; and in the manner of a firing
squad execution, each and together they simultaneously fired numerous, numerous rounds at
the three victims, killing two of them and severely wounding the third.
        “There were children at play, young children at play at the time. And there were
other civilians inside of the house at the time of the shootings, and that house was directly
behind where the three victims were standing or seated near the front door of that location.
        “Very clearly, these murders were carried out in a brazen way, meant to send a very
clear message to their rivals. This was not of the type that took place in the dark of night or
with disguises. This was, as I said, in broad daylight, three of them, Mr. Bibiano included,
committing these horrendous crimes for the benefit of their gang and with Mr. Bibiano
personally discharging a firearm, causing death. These are findings that were made by the
jury.



                                               29
       “The evidence that I listened to and that the jury listened to established that, as to
each of these murders and the attempted murder, that Mr. Bibiano was an active rather than
a passive participant and that he intended to kill his victims at the time these crimes were
committed, having fired at close range, multiple times at all victims, who were in close
proximity to one another on that porch.
       “These are aggravating factors that cannot be ignored by this court because the
actions of Mr. Bibiano demonstrate a very high degree of cruelty and viciousness and a
callous disregard for life. And when you take these facts all together and you balance them
with the factors in mitigation that you’ve referred to and . . . also take into consideration that
he was not of an age of majority at the time . . . . [¶] . . . [¶]
       “The court considered an array of choices or options. In considering the life without
the possibility of parole option, I also considered lesser punishments, as I’m required to do.
Those lesser punishments, in and of themselves would be severe, including life sentences
with substantial amounts of prison time. But notwithstanding that, the court does believe
that the sentence of life without the possibility of parole, in light of these aggravating factors
that far outweigh any of the mitigating factors in my view, the court believes that a life
sentence without the possibility parole is the appropriate sentence in this case.”
       We conclude this record sufficiently supported the trial court’s exercise of discretion
to sentence both defendants to life without parole. While the hearings took place before
Gutierrez, that case would not have significantly impacted the trial court’s review.
Gutierrez eliminated the presumption of life without parole in section 190.5, but the trial
court here already understood it had discretion under section 190.5. Further, Gutierrez
simply reiterated the relevant youth factors from Miller, and the trial court acknowledged
the existence of Miller and other related cases.
       For Meraz, it is true the court did not discuss any specific information bearing on his
youth, but the record reflects that information was not presented to the court, given counsel
declined to request an updated sentencing report from probation, present a sentencing
memorandum, or argue any factors other than Meraz’s age. On this limited record, we
cannot fault the trial court for not considering these factors. (See Gutierrez, supra, 58


                                                30
Cal.4th at p. 1390 [“To be sure, not every factor will necessarily be relevant in every case.
For example, if there is no indication in the presentence report, in the parties’ submissions,
or in other court filings that a juvenile offender has had a troubled childhood, then that
factor cannot have mitigating relevance.”].) The court stated that it had considered Meraz’s
age, but placed significant weight on the circumstances of the crime, which were
unquestionably heinous—a calculated, execution-style retaliatory shooting of three unarmed
individuals in broad daylight with children around. There was also significant evidence all
the appellants were shooters and therefore active participants in the crimes. (Id. at p. 1389
[considering “‘the extent of [the juvenile defendant’s] participation in the conduct’”].) The
court also considered Meraz’s violent criminal history. While Meraz points to the fact that
peer pressure might have affected him during the shooting (ibid.), given Chambasis was 22
years old at the time of the shooting and may have been the “shot caller” giving orders, the
trial court was aware of that evidence from the trial. Again, on this record, we are satisfied
the court understood and acted within its discretion in sentencing Meraz to life without
parole.
          Unlike with Meraz, Bibiano does not argue the trial court failed to consider the
proper factors in sentencing him to life without parole; instead, he argues the information
before the court demonstrated he was not the uncommon type of juvenile offender for which
life without parole could be constitutionally imposed. We disagree. In contrast to Meraz’s
sentencing, at Bibiano’s sentencing, his counsel argued mitigating factors related to
Bibiano’s traumatic upbringing and immature mindset. On appeal, Bibiano points to
evidence at trial that might have demonstrated his youth, such as possible peer pressure
from Chambasis, his comment that he was “going to hell” as he watched the news broadcast
of the shooting, and his crying in response to officers questioning him about the murders.
He also suggests his youth might have caused him to reject a 30-year plea offer before trial,
only to then ask after trial whether the offer was still available. The trial court was aware of
all this information, yet as with Meraz, the court found the heinous circumstances of the
crime outweighed any mitigating circumstances. It is also important to note at the time of
the crimes in this case, Bibiano was two months shy of his 18th birthday. The evidence


                                                31
relevant to the Miller youth factors was not so overwhelming that the trial court could not
constitutionally impose life without parole on Bibiano. Thus, we find no error.
8. Remaining Sentencing Issues
       Appellants raise various errors in their sentences. We find several of their arguments
meritorious, so we will modify their abstracts of judgment to correct the errors.
A. Sentences on Count 4
       Joined by Meraz, Chambasis argues the trial court should have stayed his sentence on
count 4 for shooting at an inhabited dwelling, rather than imposing a concurrent term of life
without parole, because count 4 was directly related to the murders and attempted murder in
counts 1, 2, and 3. In a sentencing memorandum, the prosecution recommended the
sentence on count 4 be stayed. At Chambasis’s sentencing, the court explained it was
imposing a concurrent sentence for count 4 because “the court believes that primarily it was
the same victims in counts 1, 2, and 3 that were the targets of Mr. Chambasis’ actions on
that date.” We find the trial court was not required to stay the sentence on count 4.
       Under section 654, subdivision (a), “[a]n act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” “There is a multiple victim
exception to . . . section 654 which allows separate punishment for each crime of violence
against a different victim, even though all crimes are part of an indivisible course of conduct
with a single principal objective. [Citation.] An assailant’s greater culpability for intending
or risking harm to more than one person precludes application of section 654.” (People v.
Felix (2009) 172 Cal.App.4th 1618, 1630-1631 (Felix).)
       Our decision in Felix is directly on point. In that case, the defendant attempted to
murder one victim by firing gunshots through a bedroom window. Relatives of the victim
were staying in other rooms in the house. (Felix, supra, 172 Cal.App.4th at p. 1623.) The
defendant was convicted of attempted murder of the intended victim, shooting at an
inhabited dwelling, and several counts of assault with a firearm against the intended victim
and his two daughters, but not the other relatives in the house. The sentence for the


                                              32
shooting at an inhabited dwelling count was ordered to run concurrent with the sentence on
the attempted murder count. (Id. at pp. 1623-1624.) The defendant argued the sentence for
the shooting at an inhabited dwelling count should have been stayed because it was based on
the same act, committed during a single indivisible course of conduct. We disagreed
because, “where the crime of shooting at an inhabited residence is involved, a defendant
need not be aware of the identity or number of people in the house to be punished separately
for each victim.” (Id. at p. 1631.) Section 654 did not apply because the intended victim’s
houseguests “were victimized by the shooting into the dwelling but were not named victims
in any other count.” (Felix, at p. 1631.)
       Here, appellants opened fire on Zamora, Curiel, and Santa Ana while they sat on the
porch of Hurtado’s apartment. Some of the bullets struck the front door and the wall next to
it. Hurtado and her children were inside at the time, but they were not named in any of the
four counts against appellants. At sentencing, the trial court noted the shooting at an
inhabited dwelling count “primarily” involved victims Zamora, Curiel, and Santa Ana,
suggesting other victims were involved. By shooting at Hurtado’s occupied apartment,
appellants committed a separate act of violence against different victims, so the trial court
was not required to stay their sentences on count 4 pursuant to section 654.
B. Section 186.22, Subdivision (b)(1)
       For counts 1 and 2, the court imposed and stayed a gang enhancement pursuant to
section 186.22, subdivision (b)(1) for all appellants. Appellants argue the court was not
permitted to impose any additional term under section 186.22, subdivision (b)(1) because
section 186.22, subdivision (b)(5) applied. We agree.
       Section 186.22, subdivision (b)(1) states: “Except as provided in paragraphs (4) and
(5), any person who is convicted of a felony committed for the benefit of, at the direction of,
or in association with any criminal street gang, with the specific intent to promote, further,
or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in
addition and consecutive to the punishment prescribed for the felony or attempted felony of
which he or she has been convicted, be punished” to an additional term of imprisonment.
For murder, that additional term is 10 years. (§ 186.22, subd. (b)(1)(C).) Section 186.22,


                                              33
subdivision (b)(5) provides, “any person who violates this subdivision in the commission of
a felony punishable by imprisonment in the state prison for life shall not be paroled until a
minimum of 15 calendar years have been served.”
       Appellants contend their life without parole sentences triggered section 186.22,
subdivision (b)(5), so the trial court improperly imposed enhancements under section
186.22, subdivision (b)(1). In People v. Lopez (2005) 34 Cal.4th 1002 (Lopez), the
California Supreme Court struck a section 186.22, subdivision (b)(1) enhancement for a 25-
years-to-life sentence for first degree murder, concluding section 186.22, subdivision (b)(5)
exempts crimes carrying with them both straight life terms and years-to-life terms. (Lopez,
at p. 1007.) The court did not address whether life without parole sentences fall within
section 186.22, subdivision (b)(5), but in discussing the legislative history of the provision,
it noted without analysis that, at the time the predecessor to that provision was enacted, it
“was understood to apply to all lifers, except those sentenced to life without the possibility
of parole.” (Lopez, at p. 1010.)
       Respondent cites this passage and argues that finding section 186.22, subdivision
(b)(5) applicable “would make little sense” because life without parole means appellants
will never be eligible for parole. The court in Lopez rejected a similar argument. In that
case, the Attorney General argued against applying section 186.22, subdivision (b)(5) to
first or second degree murderers because it would have “no practical effect,” given the
minimum parole eligibility term for first degree murderers is 25 years and for second degree
murderers is 15 years. (Lopez, supra, 34 Cal.4th at p. 1009.) Citing legislative history
providing that “‘if any provision in this act conflicts with another section of law which
provides for a greater penalty or longer period of imprisonment that the latter provision shall
apply,’” the court reasoned it was “neither an absurdity nor an anomaly” that section 186.22,
subdivision (b)(5) would apply even if a first degree or second degree murder sentence
carried the same or a longer minimum parole term. (Lopez, at p. 1009.)
       Following the plain language of section 186.22, subdivision (b)(5) and the reasoning
in Lopez, rather than its passing dicta about life without parole sentences, we find the trial
court improperly imposed and stayed additional terms pursuant to section 186.22,


                                               34
subdivision (b)(1). Section 186.22, subdivision (b)(5) applies to “a felony punishable by
imprisonment in the state prison for life” and life without parole plainly qualifies. As Lopez
explains, although section 186.22, subdivision (b)(5) will not set the minimum parole term
for appellants’ life without parole sentences here, it still applies. Thus, we will modify each
appellant’s judgment to delete the section 186.22, subdivision (b)(1) enhancement.
C. Parole Revocation Fine
       Appellants contend and respondent concedes the trial court erred in imposing parole
revocation fines in light of their sentences to life without parole. (§ 1202.45.) They are
correct. Section 1202.45 requires assessment of a parole revocation restitution fine “[i]n
every case where a person is convicted of a crime and his or her sentence includes a period
of parole.” It does not apply to a sentence with no determinate term. (People v. Brasure
(2008) 42 Cal.4th 1037, 1075; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) It
also does not apply when any determinate term is stayed. (People v. Carr (2010) 190
Cal.App.4th 475, 482, fn. 6.) Here, appellants were sentenced to indeterminate terms on all
counts and the determinate terms for the enhancements were stayed. Therefore, we will
strike the fine for each appellant.
D. Custody Credits
       Each appellant argues he should have received additional presentence custody credit.
Respondent concedes the errors. Chambasis is therefore entitled to 1,173 days of
presentence custody credit, Meraz is entitled to 1,166 days of presentence custody credit,
and Bibiano is entitled to 1,167 days of presentence custody credit.13 We will correct the
abstracts of judgment to reflect the correct presentence custody credit.
E. Fees
       We have identified two errors in the fees imposed in the abstracts of judgment. They
incorrectly reflect an $80 court security fee when the trial court imposed a $160 court
security fee at each appellant’s sentencing hearing. The court’s oral pronouncement


13    Bibiano contends he is entitled to 1,166 days of presentence custody credit, but by
respondent’s and our calculations, he is entitled to 1,167.


                                              35
controls so we will order each appellant’s abstract of judgment corrected to reflect a $160
court security fee. (People v. Sharret (2011) 191 Cal.App.4th 859, 864.) At appellants’
sentencing hearings, the trial court also imposed a $30 criminal conviction assessment on
each appellant. Each abstract of judgment reflects a $60 criminal conviction assessment.
Neither is correct. The trial court was required to impose a $30 assessment per count, for a
total assessment of $120. (Gov. Code, § 70373; People v. Sencion (2012) 211 Cal.App.4th
480, 483.) We will order the abstracts of judgment corrected accordingly.
                                      DISPOSITION
       We modify each appellant’s judgment to strike the section 186.22, subdivision (b)(1)
enhancement, to strike the section 1202.45 parole revocation fine, to impose a $160 court
security fee, and to impose a $120 criminal conviction assessment. We further modify
Chambasis’s abstract of judgment to reflect 1,173 of presentence custody credits, modify
Meraz’s abstract of judgment to reflect 1,166 days of presentence custody credit, and
modify Bibiano’s abstract of judgment to reflect 1,167 days of presentence custody credit.
The trial court is directed to forward the corrected abstracts of judgment to the Department
of Corrections and Rehabilitation.
       We affirm the judgments as modified.




                                                   FLIER, J.
WE CONCUR:




       RUBIN, Acting P. J.




       GRIMES, J.




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