P. v. Moran

1
Filed 8/29/18 P. v. Moran CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
GUSTAVO MORAN,
Defendant and Appellant.
A145499
(Alameda County
Super. Ct. No. CH51229A)
Defendant Gustavo Moran was convicted of first degree murder, with a firearm
enhancement. He was 15 years old at the time of the crime. On appeal, he contends that
his confession should not have been admitted, that the trial court committed instructional
error, that the evidence is insufficient to show he acted with malice, that the prosecutor
engaged in misconduct, that his sentence of 50 years to life constituted cruel and unusual
punishment, that he is entitled to a transfer hearing on whether the matter should have
proceeded in juvenile court, and that the trial court should consider whether to strike the
firearm enhancement.
We conclude that defendant is retroactively entitled to a transfer hearing in the
juvenile court because his case is not yet final on appeal. If the juvenile court determines
defendant is amenable to the court’s jurisdiction, his convictions shall be deemed juvenile
adjudications and the juvenile court shall impose an appropriate disposition. If the
juvenile court concludes the matter should be transferred to a court of criminal
jurisdiction, defendant’s convictions shall be reinstated, and the trial court shall afford
defendant the opportunity to make a record of information that would be relevant at a

-- 1 of 33 --

2
future youth offender parole hearing, and shall consider whether to exercise its discretion
to strike the Penal Code,1 section 12022.53 enhancement.
I. BACKGROUND
A. The Killing
On the evening of February 13, 2010, 15-year-old Samantha P. (Samantha) and
her boyfriend, Jesus Diaz, drove to an area in San Lorenzo known as the “duck pond.”
Diaz told Samantha he had arranged to buy 600 Ecstasy pills from someone named
Carlos. Another car pulled up, and Carlos approached Diaz’s car and said something
about money. Samantha recognized Carlos from high school.2 Two people, wearing
black hoodies, ran toward them and demanded money from Diaz. One of them had a gun
in his hand. Diaz said he did not have any money, and one of the people in hoodies
started hitting him. Diaz started the engine of his vehicle and started to drive away.
Samantha heard gunshots, and a window of the vehicle shattered. Diaz said he
had been shot. Samantha called 911 and tried to give the dispatcher their location.
Diaz’s head slumped onto the steering wheel, and the car accelerated rapidly before
crashing, lodged between another car and a house, so that the car doors would not open.
Samantha saw that Diaz had a bullet wound in his lower back; he was not moving or
breathing. A stranger came and called for the police.
Diaz was struck by a bullet, and died of his injuries. Samantha suffered minor
injuries.
B. Carlos E.’s Testimony
Carlos testified that defendant was the person who wielded and fired the gun. He,
defendant, and two other people, Hector G. and Sergio O., were involved in the incident.
Carlos and Hector were 14 years old, and Sergio was 17 years old. Before the incident,
Carlos told Diaz he was selling some Ecstasy pills, and Diaz asked how much they would
cost. Carlos intended to rob Diaz. He suggested doing so to Sergio; Sergio agreed to the
1 All undesignated statutory references are to the Penal Code.
2 Samantha later identified him as Carlos E.

-- 2 of 33 --

3
plan, and they decided to ask Hector to participate, because he had a gun. They invited
Hector to join them in the robbery and asked to borrow his gun, suggesting Sergio hold
the gun to Diaz’s head during the robbery. Hector said he was at a mall with defendant
and that he would bring defendant along to participate in the robbery. They discussed
how they would divide the money they obtained. Sergio and Carlos picked Hector and
defendant up in Sergio’s car. Defendant sat in the back seat of the car, and when Carlos
looked around, he saw defendant had a gun in his hand. Hector said the gun had only
four bullets.
The four made their plan for the robbery: Sergio would wait for the others so they
could drive away; Carlos would act as a distraction; Hector and defendant would
approach; Hector would pull Diaz out or try to take his money; and defendant would have
the gun. Carlos would act as if he was being robbed as well. The group drove toward the
duck pond, and Sergio parked nearby. Carlos went up to the car in which Diaz and
Samantha were sitting. He recognized Samantha from school. Hector and defendant ran
up to the car, with their hoods on. Defendant was holding a gun, aiming it at Diaz.
Hector and defendant screamed at Diaz to get out of the car and give them his money.
Diaz tried to start his car, and defendant started hitting him with the gun. The car sped
off, and Carlos heard the gun being fired. Defendant stepped forward and fired the gun
four times toward the car. The back window of the car broke. The group returned to
Sergio’s house, and defendant suggested hiding the gun in Carlos’s house or back yard.
C. Defendant’s Statements to Detectives
Defendant was arrested about 8:20 p.m. on the evening of February 15, 2010, and
brought to the sheriff’s station shortly thereafter. After defendant was arrested, he spoke
with two sheriff’s detectives, Joshua Armijo and Patrick Smyth. By that time, Hector,
Carlos, Sergio, and Samantha had already been interviewed. Hector, Carlos, and Sergio
had identified defendant as the shooter.
Defendant’s interview began about 12:25 a.m. the following morning; by that
time, he had been in a holding cell for about three and a half hours. The interview lasted

-- 3 of 33 --

4
more than three hours. During that time, defendant was offered a soda, water, and
snacks, and he had the opportunity to take rest breaks.
The interview began with small talk about defendant’s family, schooling, and
activities. Armijo informed defendant of his Miranda rights (Miranda v. Arizona (1966)
384 U.S. 436), and defendant said he understood them and was willing to talk with the
detectives. Defendant originally said he had been at a party the night of the killing.
Armijo told defendant he knew defendant had been with other people on the evening in
question. Smyth told defendant that they knew the answers to some of the questions they
were asking, that they would need to write a report after talking with him, and that they
did not want to say he had lied to them. He told defendant that 15-year-olds sometimes
made mistakes and that “some things happened that didn’t intend to happen.” When the
detectives challenged defendant and told him to give his side of the story, defendant told
the detectives he was “there” with Hector and Carlos, that he knew they were going to set
someone up, that he did not know about the gun, and that someone else did the shooting.
He then said that Carlos hit Diaz with his fist or the gun, that defendant told Carlos not to
shoot, and that Hector or Carlos shot at the fleeing car.
Armijo again challenged the truthfulness of defendant’s version of events, telling
him that the other people he had spoken to said Carlos did not have the gun and that the
detectives knew defendant had the gun. Defendant said, “I’m the one who shot it.” He
said he was mad because they were “gonna come up empty handed.” He also said he was
afraid the victim would be able to identify them because Carlos’s face was not obscured
by a hood. He said he had bought the gun from “two black guys” in Oakland less than a
year previously. Hector had been holding the gun on the day in question.
Defendant then explained that Carlos had suggested “set[ting] up” Diaz with an
offer of 600 Ecstasy pills and robbing him. The group planned for Carlos to approach
Diaz’s car and have Diaz get out of the car for the purported drug deal, before Hector and
defendant approached; as it turned out, however, Diaz did not leave the car. Hector and
defendant came to the car, and either Hector or Carlos started hitting Diaz, while
defendant held the gun, pointed toward the car, to intimidate Diaz. They told Diaz to get

-- 4 of 33 --

5
out of the car “with his stuff.” Diaz drove off, and defendant fired four shots. He was
angry because Diaz had not given them anything, and frightened because Diaz had said
he recognized Carlos. He said that he did not mean to kill Diaz and that he was not
aiming. Defendant saw one of the shots hit the back window of Diaz’s car. The group
went to Sergio’s house and threw the gun into some bushes. The next day, defendant
threw the gun into the bay.
D. Verdict and Sentencing
The jury found defendant guilty of first degree murder (Pen. Code, § 187,
subd. (a)), shooting at an occupied motor vehicle (§ 246), and assault with a firearm
(§ 245, subd. (a)(2)), and found true allegations that he personally used and discharged a
firearm and caused great bodily injury and death to Diaz. The trial court sentenced him
to a term of 25 years to life for murder (§ 190, subd. (a)) and a consecutive 25 years to
life for one of the firearm enhancements (§ 12022.53, subd. (d)), and stayed sentence on
the remaining counts (§ 654), for a total term of 50 years to life.
II. DISCUSSION
A. Admissibility of Defendant’s Statement to Investigators
Before trial, the court held a hearing on the admissibility of defendant’s pretrial
statements to the detectives. Detective Armijo testified that he had received training on
how to interview a suspect during an investigation. He had received 80 hours of training
during a course with the Institute of Criminal Investigations; had received an additional
40 hours of training in robbery investigations and 40 hours in murder investigations,
which included custodial interviews; and had taken another 40-hour course on interviews
and interrogations. He had heard of the “Reid method” of interrogation, but he had never
attended a course teaching the technique and did not know what it was.
Armijo testified that he was the lead investigator in the case. Before defendant
was interviewed, investigators had interviewed Hector, Sergio, and Carlos. Armijo
testified that both Hector and Carlos said defendant was the gunman on the night of the
killing, and that all three had given nearly identical accounts of the events.

-- 5 of 33 --

6
Defendant was held in a holding cell measuring approximately eight-by-ten feet
for about three and a half hours before he was interviewed. The cell had a sink, a
drinking fountain, a rest room, and a place to sit and lie down.
Defendant was brought into the interview room at 12:26 a.m., and the interview
began shortly thereafter. Armijo and Smyth were wearing plain clothes, and they did not
carry any weapons. Defendant was not handcuffed. His manner was “[p]olite, calm,
talkative, [and] receptive.” The interview lasted a little over three hours. During that
time, defendant was offered snacks and drinks.
Defendant contends that his statements were not voluntary and that their
admission violated his privilege against self-incrimination and his right to due process. “
‘The admissibility of a confession depends upon the totality of the circumstances existing
at the time the confession was obtained. [Citations.] A minor can effectively waive his
constitutional rights [citation] but age, intelligence, education and ability to comprehend
the meaning and effect of his confession are factors in that totality of circumstances to be
weighed along with other circumstances in determining whether the confession was a
product of free will and an intelligent waiver of the minor’s Fifth Amendment rights
[citation].’ [Citation.] [¶] The federal and state Constitutions both require the
prosecution to show the voluntariness of a confession by a preponderance of the
evidence. [Citations.] Voluntariness turns on all the surrounding circumstances, ‘both
the characteristics of the accused and the details of the interrogation’ [citation]; it does
not depend on whether the confession is trustworthy. [Citation.] While a determination
that a confession was involuntary requires a finding of coercive police conduct
[citations], ‘ “ ‘the exertion of any improper influence’ ” ’ by the police suffices
[citation].” (In re Elias V. (2015) 237 Cal.App.4th 568, 576-577 (Elias V.).) “ ‘[W]here
a person in authority makes an express or clearly implied promise of leniency or
advantage for the accused which is a motivating cause of the decision to confess, the
confession is involuntary and inadmissible as a matter of law.’ [Citation.]” (People
v. Perez (2016) 243 Cal.App.4th 863, 871 (Perez).)

-- 6 of 33 --

7
Whether a confession is voluntary presents “ ‘a mixed question of law and fact
that is nevertheless predominantly legal . . . .’ [Citation.] Hence ‘ “[o]n appeal, the
determination of a trial court as to the ultimate issue of the voluntariness of a confession
is reviewed independently . . . . [¶] The trial court’s determinations concerning whether
coercive police activity was present, whether certain conduct constituted a promise and, if
so, whether it operated as an inducement, are apparently subject to independent review as
well. [Citation.] However, “the trial court’s findings as to the circumstances surrounding
the confession—including ‘the characteristics of the accused and the details of the
interrogation’ [citation]—are clearly subject to review for substantial evidence. . . .” ’
[Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 296.) Where, as here, a defendant’s
statement is recorded, we review the voluntariness of the confession de novo. (Perez,
supra, 243 Cal.App.4th at p. 871.)
Defendant relies primarily on Elias V., decided by our colleagues in Division Two
of the First District Court of Appeal, for his argument that his confession was
involuntary. It is worthwhile to discuss Elias V. in detail. The minor there, Elias, who
was 13 years old, was alleged to have committed a lewd act on a child. (Elias V., supra,
237 Cal.App.4th at p. 570.) A detective and two deputy sheriffs went to Elias’s
elementary school to speak with him, and the principal brought him to a small office. (Id.
at p. 574.) During the interrogation, the detective stated as a fact that Elias had touched
the victim in a sexual manner; she first suggested he had done so because he found it
exciting. When Elias rejected that suggestion; when the detective said, “But you did it,”
he accepted her earlier suggestion that he had done so out of curiosity. (Id. at pp. 574–
575, 585–586.) He went on to describe touching the victim inappropriately for a few
seconds. (Id. at p. 586.)
The juvenile court denied Elias’s motion to exclude his statements and declared
him a ward of the court. (Elias V., supra, 237 Cal.App.4th at p. 570.) The appellate
court reversed. It began by addressing concerns about false confessions, particularly
when juveniles are questioned. “Since Miranda, the Supreme Court has continued to
express concerns about false confessions. In Corley v. United States (2009) 556 U.S.

-- 7 of 33 --

8
303, 320–321, the court observed again that ‘ “[c]ustodial police interrogation, by its very
nature, isolates and pressures the individual,” [citation], and there is mounting empirical
evidence that these pressures can induce a frighteningly high percentage of people to
confess to crimes they never committed . . . .’ (Ibid.) Even more recently, the court
indicated that its long-standing concern about false confessions may be most acute in
cases involving the police interrogation of juveniles, particularly adolescents. [Citation.]
An extensive body of literature demonstrates that juveniles are ‘more suggestible than
adults, may easily be influenced by questioning from authority figures, and may provide
inaccurate reports when questioned in a leading, repeated, and suggestive fashion’
[citations], and that ‘juveniles aged fifteen and younger have deficits in their legal
understanding, knowledge, and decision-making capabilities.’ ” (Elias V., supra, 237
Cal.App.4th at p. 578.)
The court went on to describe the “The Reid Technique,” a commonly used
interrogation method. (Elias V., supra, 237 Cal.App.4th at p. 579.) “ ‘First, investigators
are advised to isolate the suspect in a small private room, which increases his or her
anxiety and incentive to escape. A nine-step process then ensues in which an interrogator
employs both negative and positive incentives. On one hand, the interrogator confronts
the suspect with accusations of guilt, assertions that may be bolstered by evidence, real or
manufactured, and refuses to accept alibis and denials. On the other hand, the
interrogator offers sympathy and moral justification, introducing “themes” that minimize
the crime and lead suspects to see confession as an expedient means of escape.’
[Citation.]” (Id. at pp. 579–580.) This interrogation should be conducted only “after
investigation points to the suspect’s likely guilt.” (Id. at p. 580.)
The court also noted that police may facilitate false confessions by disclosing
specific facts about the crime and inducing the suspect to adopt those facts, a technique
that “has been found to be coercive and to have overcome the will of subjects,
particularly those who are young and otherwise vulnerable,” and that “ ‘prevents police
from testing and corroborating the reliability of the admissions and confessions they
elicit.’ ” (Elias V., supra, 237 Cal.App.4th at p. 592.)

-- 8 of 33 --

9
The court also relied upon the young age of the offender in Elias V., noting that a
“growing number of studies show[] that the risk interrogation will produce a false
confession is significantly greater for juveniles than for adults; indeed, juveniles usually
account for one-third of proven false confession cases.” (Elias V., supra, 237
Cal.App.4th at p. 588.)3
On the facts of the case before it, the court found the interrogation of Elias, using
the Reid Technique, rendered his statements involuntary. The detective repeatedly
referred to Elias’s guilt as an established fact and showed interest only in confirming
details. (Elias V., supra, 237 Cal.App.4th at p. 582.) In doing so, she used deceptive
tactics, including the use of false evidence, telling Elias falsely that the victim had
“ ‘explained it perfectly’ ” and that another witness had walked in and seen the lewd
conduct. (Id. at p. 583.) She suggested scenarios involving improper touching,
increasing the likelihood that Elias’s statements were the result of his suggestibility,
rather than his recall of events, and she had no independent information about the alleged
offense to act as a basis to evaluate the truth of his statements. (Id. at p. 593.) She
threatened to subject him against his will to a lie detector test that would reveal the falsity
of his denials. (Id. at p. 584.) She used “minimization” techniques to provide him with a
face-saving excuse for having committed the acts, that is, the more acceptable alternative
that he was curious rather than excited. (Id. at pp. 583, 584–586.) The court went on:
“By offering Elias alternative explanations for improperly touching [the victim]—
because he ‘found it exciting’ or ‘out of curiosity’—[the detective] employed a so-called
‘false choice’ strategy. As stated in the Reid text, ‘[w]hen the investigator presents the
alternative question to the suspect, it is not enough simply to ask the question and then
wait for the suspect to answer. The investigator must encourage the suspect to select one
3 Long ago, the United States Supreme Court noted that “[a]ge 15 is a tender and
difficult age for a boy,” who “cannot be judged by the more exacting standards of
maturity. That which would leave a man cold and unimpressed can overawe and
overwhelm a lad in his early teens. This is the period of great instability which the crisis
of adolescence produces. A 15-year-old lad, questioned through the night by relays of
police, is a ready victim of inquisition.” (Haley v. Ohio (1948) 332 U.S. 596, 599.)

-- 9 of 33 --

10
of the two options. This is accomplished through the use of positive and negative
“supporting statements.” [¶] . . .The investigator should state that if the positive
alternative is true, it is something he can understand.’ [Citation.]” (Id. at p. 586.) Based
on a combination of Elias’s youth, the absence of any evidence corroborating his
inculpatory statements, and the likelihood that the detective’s use of deception and
overbearing tactics would induce involuntary and untrustworthy incriminating
admissions, the appellate court concluded the statements were involuntary. (Id. at
pp. 586–587.)4
Elias V. did not hold that all confessions of juveniles are involuntary, nor did it
alter the controlling totality of the circumstances test that governs review of the
voluntariness of a confession by a suspect, whether an adult or a minor. (See In re
Joseph H. (2015) 237 Cal.App.4th 517, 534 [“it cannot be said that a juvenile cannot
waive constitutional rights as a matter of law”]; Elias V., supra, 237 Cal.App.4th at
p. 576.) Nor, contrary to defendant’s position, does it hold that any use by police
investigators of the so-called Reid Technique or similar interrogation approaches with
juveniles automatically renders any resulting confession coerced and involuntary.
Rather, the appellate court’s holding was expressly based on a combination of three
factors turning on the facts of that case: “(1) Elias’s youth . . . ; (2) the absence of any
evidence corroborating Elias’s inculpatory statements; and (3) the likelihood that [the
police investigator’s] use of deception and overbearing tactics would induce involuntary
4 See also In re T.F. (2017) 16 Cal.App.5th 202, 213–221 (T.F.) [following Elias
V., holding that minor’s confession to having committed a lewd act was involuntary
where minor had a documented intellectual disability; “had been interrogated in a small
room at his school by two armed officers” (id. at p. 221) for nearly an hour without being
given a Miranda warning, during which he denied any lewd conduct “at least 23 times”
(id. at p. 208, fn. 8), was “very emotional” (id. at p. 209), “sobbed uncontrollably” (id. at
p. 221), and ultimately confessed; at which point he was handcuffed, placed under arrest,
given a “rapid recitation” (id. at p. 209) of the Miranda warning during which officers
did not take the time to determine whether he understood all of his rights; and was then
subjected to another “accusatory interrogation” at the police station that was “dominating,
unyielding, and intimidating” (id. at p. 218)].)

-- 10 of 33 --

11
and untrustworthy incriminating statements.” (Elias V., supra, 237 Cal.App.4th at
pp. 586–587.) The court distinguished In re Joe R. (1980) 27 Cal.3d 496, in which our
high court upheld the trial court’s determination that a minor’s confession to robbery was
voluntary, noting that it “involved a minor significantly older than Elias, the interrogator
did not use false evidence, false choice questions or other forms of deception, and the
interrogation was preceded by an investigation that independently provided substantial
inculpatory and corroborating evidence.” (Elias V., supra, at p. 595.)
In our view, the combination of factors involved in Elias V. is not present here,
and the trial court therefore did not err in concluding that the People proved by a
preponderance of the evidence that defendant’s confession was voluntary and not
coerced.
First, while defendant also was an adolescent, at 15 years old, he was not as young
as Elias, and he had been arrested previously and charged with felony burglary.5 In
contrast, Elias was 13 years of age, “a young adolescent, there is no indication in the
record he was particularly sophisticated, and he had no prior confrontations with the
police.” (Elias V., supra, 237 Cal.App.4th at p. 591; see also id. at p. 593 [“the use of
deceptive techniques is significantly more indicative of involuntariness where, as here,
the subject is a 13-year-old adolescent who has never previously had any confrontation
with the police”].) Indeed, his degree of immaturity can be gauged from the fact that in
response to questions regarding his alleged sexual touching of a young child, he
described female genitalia as “nasty,” “disgusting,” and “kinda gross.” (Id. at pp. 585–
586.) Defendant, in contrast, was armed with a loaded semiautomatic handgun that he
had purchased around one year earlier, and readily agreed to take part in a robbery
involving a staged drug deal. While age doubtless is “a factor in determining the
voluntariness of a confession,” a minor—even a minor considerably younger than
defendant—is capable of making a voluntary confession. (See In re Joseph H., supra,
5 Notably, that arrest occurred on February 8, 2010, just days before the robbery
and murder involved here. The burglary charge was dismissed in September 2013 due to
the pending, more serious murder case.

-- 11 of 33 --

12
237 Cal.App.4th at pp. 533–535 [no evidence of coercive police activity to support
finding that 10-year-old with ADHD and low-average intelligence who confessed to
shooting his father did so involuntarily].)
Second, in stark contrast to Elias V., there was a great deal of evidence that
strongly pointed to defendant’s guilt of the crime and corroborated defendant’s
confession. In Elias V., the only evidence that Elias touched the child in an improper
manner was the mother’s statement that the child told her he did so and the detective’s
testimony that the child said he “touched her” and, in the detective’s opinion, pointed to
the vaginal area on a doll. (Elias V., supra, 237 Cal.App.4th at p. 591.) The mother
never testified that she saw Elias improperly touch her child (id. at p. 571), nor was there
any evidence that anyone other than the mother heard the things she claimed her daughter
had been “ ‘telling everybody.’ ” (Id. at p. 591.) “The sole evidence of the manner in
which Elias allegedly touched the child came from Elias’s interrogation, and no evidence
corroborated his incriminating statements.” (Ibid.) Although the child’s interview was
recorded, the recording was never offered in evidence and the interviewer did not testify.
(Id. at p. 571.) Further, the mother had delayed contacting the police for 17 days, and
there was reason to question whether she had concocted the charge because she had just
learned that the landlord intended to evict her family and falsely believed Elias’s father
was behind the eviction, a subject on which she gave “inconsistent and confusing”
testimony. (Id. at p. 572.) Thus, particularly given the tender age (three) of the child
involved, it was not even clear that any crime had been committed. (See id. at p. 596
[noting “the absence of any evidence corroborating the truth of Elias’s incriminating
statements . . . and the presence of evidence suggesting they may be false”].)
Here, in contrast, there was no doubt there had been an armed robbery resulting in
the shooting and death of a teenager. Moreover, by the time detectives questioned
defendant, three of the other participants—Hector, Carlos, and Sergio—had identified
defendant as having participated in the robbery, and as having been the shooter. While
defendant contends those accomplices had a motive to lie, all three were consistent in
having independently identified him. Thus, it is inescapable that (again, unlike in Elias

-- 12 of 33 --

13
V.) the investigation had uncovered very substantial evidence pointing to defendant’s
likely guilt. As the Elias V. court acknowledged, “Corroboration is ‘[t]he ultimate test of
the trustworthiness of a confession.’ ” (Elias V., supra, 237 Cal.App.4th at pp. 591–592.)
Third, again in sharp contrast to Elias V., the detectives did not use deceptive or
overbearing tactics likely to induce involuntary and untrustworthy incriminating
admissions. In Elias V., the detectives utilized a range of such techniques, subjecting the
13-year-old to an “accusatory interrogation” that was “dominating, unyielding, and
intimidating” and that included “relentless” repeated questions insinuating guilt (Elias V.,
supra, 237 Cal.App.4th at pp. 582–583, 586); the use of “false evidence” comprising
false representations as to what witnesses had witnessed (id. at pp. 583–584); threatening
to subject Elias against his will to a lie detector test that would definitively reveal the
falsity of his denials (id. at p. 584); suggesting multiple scenarios involving improper
touching, thereby enhancing the likelihood that Elias’s statements resulted from his
suggestibility rather than recall of actual events (id. at p. 593); and employing a so-called
“false choice” strategy by offering Elias alternative explanations for improperly touching
the child victim, either of which would incriminate him. (Id. at p. 586.)6
Here, the detectives did not employ such deceptive tactics. It is true that the
detectives were adamant in insisting they knew defendant was present at the crime scene
and that he had shot the gun, and that they offered defendant the face-saving possibility
that he had not intended to kill Diaz. However, they did not use deceptive techniques:
their insistence on defendant’s culpability was based on their conversations with other
witnesses who had identified defendant as the gunman, and the facts of the case were
easily susceptible to an interpretation that the defendant did not plan to kill Diaz when the
incident began. That the detectives “engaged in a back-and-forth conversation during
which the detectives expressed their belief that [defendant] was the shooter and
6 Two of these three points of distinction (lack of experience with police
confrontation and relatively weak corroborative evidence) distinguish this case from T.F.
as well. While is true that deception was present in T.F., that case involved a lengthy
pre-Miranda interrogation at which much of the overbearing police conduct took place.

-- 13 of 33 --

14
[defendant] consistently denied that allegation” does not render the interrogation
coercive. (People v. Jones (2017) 7 Cal.App.5th 787, 812 (Jones).) Further, as our high
court concluded in People v. Carrington (2009) 47 Cal.4th 145, 171, suggestions that a
homicide “might have been an accident, a self-defensive reaction, or the product of fear,
were not coercive; they merely suggested possible explanations of the events and offered
defendant an opportunity to provide details of the crime. This tactic is permissible.”
Moreover, although the detectives told defendant they knew he had the gun, they did not
suggest specific details that defendant merely adopted; rather, he recalled events
independently. Indeed, although the detectives told defendant that they had spoken with
others, they repeatedly declined defendant’s requests to give him any information about
what they had learned regarding the incident.7
Defendant contends that detectives utilized “false evidence” by referring to
unidentified eyewitnesses who “say that Carlos didn’t have the gun.” But that was an
accurate characterization of what defendant’s three accomplices had already told the
police. Just as in Jones, “the detectives clearly believed that [defendant] was the shooter,
and the various ruses they employed were aimed at eliciting his admission that he was the
one who fired the gun.” (Jones, supra, 7 Cal.App.5th at p. 814.) Even if the detectives
did falsely imply there were other eyewitnesses to the crime who could identify
defendant (or rule out Carlos) as the shooter, “ ‘the use of deceptive comments does not
necessarily render a statement involuntary. Deception does not undermine the
voluntariness of a defendant’s statements to the authorities unless the deception is “ ‘ “of
a type reasonably likely to procure an untrue statement.” ’ ” [Citations.] “ ‘The courts
have prohibited only those psychological ploys which, under all the circumstances, are so
coercive that they tend to produce a statement that is both involuntary and
7 While the detectives asked defendant whether he would be willing to take a lie
detector test and what he thought the results of such a test would be, they did not threaten
to subject him to such a test against his will. In context, it is clear that their brief isolated
reference to such a test was intended to underline the importance of defendant telling the
truth.

-- 14 of 33 --

15
unreliable.’ ” ’ ” (Jones, supra, 7 Cal.App.5th at pp. 814–815 [detective’s deceptive
statements about the nature of the evidence that the police had linking the minor
defendant and his father to the shootings did not constitute coercive police tactics that
overcame his will and rendered his statement involuntary].)
Nor did detectives make any express or implied promise of leniency to defendant.
Early in the interrogation, one of the detectives told defendant that “people eventually
down the line have to make a decision about this thing. About what happens to you and
your future. Okay? They’re going to look at this story so far of where you were that
night . . . . and they’re gonna think that you’re some kind of cold blooded guy.” Later, he
said, “the people who gotta make a decision about what happens to your future is not us.
It’s someone else. Um and I know that you’re trying to distance yourself from that.
Okay. But are you a cold, are you cold blooded? . . . [D]o you have ice water running
through your veins?” The detectives also suggested that “[p]eople can understand people
admitting their mistakes and moving on” and that it would be good for everybody for
defendant “to get it off your chest and get it out there and start moving past it.” These
statements were not improper. (Jones, supra, 7 Cal.App.5th at pp. 812–813 [“ ‘ “mere
advice or exhortation by the police that it would be better for the accused to tell the truth
when unaccompanied by either a threat or a promise does not render a subsequent
confession involuntary” ’ ”; detective’s isolated comment that minor might have to serve
“a little time in camp” was not an express promise of leniency and did not proximately
cause minor’s statements].) “Absent improper threats or promises, law enforcement
officers are permitted to urge that it would be better to tell the truth.” (People v. Williams
(2010) 49 Cal.4th 405, 444.)
Given the totality of the circumstances, the trial court did not err in admitting
defendant’s statements.8
8 Amicus curiae Pacific Juvenile Defender Center (PJDC) has filed a brief, which
we have considered. PJDC argues, inter alia, that defendant’s waiver of his Miranda
rights was not voluntary. Because defendant did not raise this issue as a ground for
reversal, we do not address it. (See Berg v. Traylor (2007) 148 Cal.App.4th 809, 823,

-- 15 of 33 --

16
B. CALCRIM No. 548
Defendant contends the trial court misstated the law when it instructed the jurors
that they did not all need to agree on the same theory of murder, because this suggested
the jurors did not need to agree unanimously on the degree of murder. In the challenged
instruction, CALCRIM No. 548, the court instructed the jury: “The defendant has been
prosecuted for murder under two theories: (1) malice aforethought, and (2) felony
murder. [¶] Each theory of murder has different requirements, and I will instruct you on
both. [¶] You may not find the defendant guilty of murder unless all of you agree that the
People have proved that the defendant committed murder under at least one of these
theories. You do not all need to agree on the same theory.”
Defendant points out that he was prosecuted not only for first degree murder,
under theories of both felony murder and premeditated murder with malice aforethought,
but also for second degree murder with malice aforethought. The challenged instruction,
he argues, erroneously suggested that the jurors need not reach a unanimous verdict on
the degree of murder of which he was guilty. We reject this contention because the
instructions as a whole required unanimity on the degree of murder.
A jury verdict must be unanimous as to the degree of murder; however, where a
defendant is prosecuted for first degree murder, “ ‘ “it is not necessary that all jurors
agree on one or more of several theories proposed by the prosecution; it is sufficient that
each juror is convinced beyond a reasonable doubt that the defendant is guilty of first
degree murder as that offense is defined by statute.” [Citation.]’ [Citations.]” (People
v. Sanchez (2013) 221 Cal.App.4th 1012, 1024–1025 (Sanchez); see also People v.
Johnson (2016) 243 Cal.App.4th 1247, 1278 (Johnson); People v. Moore (2011) 51
Cal.4th 386, 413.) Murder is defined by statute as the unlawful killing of a human being
or a fetus “with malice aforethought.” (§ 187, subd. (a).) First degree murder includes
murder perpetrated “by . . . willful, deliberate, and premeditated killing, or which is
fn. 5 [“ ‘ “ ‘Amicus curiae must accept the issues made and propositions urged by the
appealing parties, and any additional questions presented in a brief filed by an amicus
curiae will not be considered [citations].’ ” ’ ”].)

-- 16 of 33 --

17
committed in the perpetration of, or attempt to perpetrate, . . . robbery . . . .” (§ 189.)
Under this rule, the jury did not need to be unanimous as whether to defendant killed
Diaz willfully, with deliberation and premeditation (the “malice aforethought” theory) or
during the commission of the robbery (the “felony murder” theory), as long as it agreed
unanimously that the killing constituted first degree murder.
“ ‘A defendant challenging an instruction as being subject to erroneous
interpretation by the jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant. [Citations.]’ [Citation.]
‘We credit jurors with intelligence and common sense [citation] and we do not assume
that these virtues will abandon them when presented with a court’s instructions.
[Citations.]’ [Citation.] ‘ “[T]he correctness of jury instructions is to be determined from
the entire charge of the court, not from a consideration of parts of an instruction or from a
particular instruction.” ’ ” (Sanchez, supra, 221 Cal.App.4th at p. 1024.)
Viewing the instructions as a whole, we see no reasonable likelihood the jury
understood that it need not find unanimously that defendant’s conduct fell within the
definition of first degree murder. The instruction on first or second degree murder
informed the jury, “If you decide that the defendant committed murder, it is murder of the
second degree, unless the People have proved beyond a reasonable doubt that it is
murder of the first degree as defined in CALCRIM No. 521.” (Italics added.)
CALCRIM No. 521, the instruction on first degree murder, stated, “You may not find the
defendant guilty of first degree murder unless all of you agree that the People have
proved that the defendant committed murder. But all of you do not need to agree on the
same theory.” The instruction concluded, “The People have the burden of proving
beyond a reasonable doubt that the killing was first degree murder rather than a lesser
crime. If the People have not met this burden, you must find the defendant not guilty of
first degree murder and the murder is second degree murder.” The jury was further
instructed, that “[i]f all of you agree that the People have proved beyond a reasonable
doubt that the defendant is guilty of first degree murder,” the jury should complete and
sign that verdict form, and that “[i]f all of you cannot agree whether the defendant is

-- 17 of 33 --

18
guilty of first degree murder,” it should inform the court and not complete or sign any
verdict forms for that count. (Italics added.) These instructions informed the jury that it
must find unanimously that defendant’s crime constituted first degree murder.
Defendant argues the jury’s confusion is shown by questions it directed to the
court during deliberations. The verdict form for first degree murder stated that the jury
found defendant guilty of first degree murder in that “defendant did unlawfully, and with
malice aforethought, murder” Diaz. While deliberating, the jury sent the following
request: “We would like some clarification on why the verdict sheet has no mention of
felony murder on Count 1. [¶] Does felony murder include malice aforethought as
dictated on verdict sheet[?]” With the agreement of counsel, the court responded, “Please
see instruction 548.” Later, the jury sent another request: “Why does the verdict refer to
malice aforethought specifically without including the theory of felony murder? We
referred to 548 but we would like it clarified explicitly.” Before receiving a response to
this inquiry, the jury announced it had reached its verdict. These inquiries reflect
uncertainty as to whether felony murder fell within the definition of murder with malice
aforethought; they do not suggest the jury believed it did not need to find unanimously
that defendant’s crime was murder in the first degree.
Defendant’s reliance on Sanchez and Johnson does not persuade us otherwise. In
Sanchez, the court found the use of CALCRIM No. 548 misleading where the defendant
was prosecuted on alternate theories of aiding and abetting that supported different
degrees of murder, but was tried on only one theory of first degree murder. (Sanchez,
supra, 221 Cal.App.4th at pp. 1024–1025.) Thus, the rule that in a prosecution for first
degree murder it is not necessary that the jurors agree on one or more of several theories
proposed by the prosecution did not apply “because there was only one theory of first
degree murder.” (Id. at p. 1025.) In those circumstances—“presented with alternate
theories of liability which led to different results as to the degree of murder”—the trial
court erred in giving the instruction. (Id. at pp. 1025–1026.) Similarly, in Johnson, “the
jury was presented with one theory of first degree murder, namely, first degree felony
murder, and one theory of second degree murder, namely, malice murder.” (Johnson,

-- 18 of 33 --

19
supra, 243 Cal.App.4th at p. 1279.) As applied to that case, the court concluded,
CALCRIM No. 548 was an erroneous statement of the law. (Id. at pp. 1280–1281.)
Here, in contrast, the jury was presented with two theories of first degree murder; it could
disagree on which theory applied to the case while finding unanimously that defendant
committed first degree murder (as it did in the verdict form).9
Accordingly, we conclude defendant has not met his burden to show there is a
reasonable likelihood the jury misunderstood CALCRIM No. 548 to mean it did not have
to reach a unanimous verdict as to the degree of defendant’s crime.
C. Sufficiency of Evidence
Defendant argues that at least some of the jurors must have relied on the theory
that he acted with deliberation and premeditation, rather than on a theory of felony
murder, and that there was insufficient evidence of premeditation. We reject this
contention.
It is well established that “[a] first degree murder verdict will be upheld if there is
sufficient evidence as to at least one of the theories on which the jury is instructed,
‘absent an affirmative indication in the record that the verdict actually did rest on the
inadequate ground.’ [Citation.]” (People v. Nelson (2016) 1 Cal.5th 513, 552.) The jury
was instructed on theories of both first degree felony murder and first degree malice
aforethought murder. Defendant makes no effort to argue the evidence is not sufficient to
support a finding that he committed murder during the commission of a robbery.
He argues, however, that the jury’s notes—questioning why felony murder was
not explicitly mentioned on the first degree murder verdict form—indicates that at least
some jurors based their decision not on a theory of felony murder, but on the theory that
9 The final sentence of CALCRIM No. 548 has since been modified to read: “You
do not all need to agree on the same theory[, but you must unanimously agree whether
the murder is in the first or second degree].” While the bracketed language adds more
clarity, the instructions as a whole informed the jury of the need for unanimity on the
degree of murder.

-- 19 of 33 --

20
he acted with premeditation and deliberation.10 It appears to us a more natural
interpretation that the jury was relying on a theory of felony murder and wished to
confirm that the verdict form encompassed that theory. On this record, we will not
presume that some of the jurors were unpersuaded that defendant killed Diaz during the
commission of a robbery.
In any case, the evidence of premeditation and deliberation, while not strong, is
sufficient to support a finding of first degree murder. We bear in mind that “we review
the entire record in the light most favorable to the judgment to determine whether it
discloses evidence that is reasonable, credible, and of solid value such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]
Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]”
(People v. Bolin (1998) 18 Cal.4th 297, 331.) Defendant told the investigators he fired
the gun because he was angry that Diaz had not given them anything, and he was
frightened because Diaz had said he recognized Carlos. (See People v. Solomon (2010)
49 Cal.4th 792, 813 [test for premeditation and deliberation “ ‘is not the duration of time
as much as the extent of the reflection’ ”].) The jury could reasonably rely on this
evidence to conclude defendant deliberately shot at the car in an effort to silence Diaz
and Samantha.
10 As we have noted, murder is defined as an unlawful killing “with malice
aforethought” (§ 187, subd. (a)), and first degree murder includes one committed during
the commission of specified felonies, including robbery (§ 189). Courts have employed
various formulations to express the requirement of malice when a defendant is accused of
felony murder, sometimes saying that the law “ ‘imputes malice’ ” to one who kills in
perpetration of a robbery, and sometimes that the felony murder rule acts as a
“ ‘substitute’ for malice aforethought.” (People v. Friend (2009) 47 Cal.4th 1, 75–76.)

-- 20 of 33 --

21
D. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct while questioning a
witness and during oral argument.11 “ ‘ “The applicable federal and state standards
regarding prosecutorial misconduct are well established. ‘ “A prosecutor’s . . .
intemperate behavior violates the federal Constitution when it comprises a pattern of
conduct ‘so egregious that it infects the trial with such unfairness as to make the
conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does
not render a criminal trial fundamentally unfair is prosecutorial misconduct under state
law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.’ ” ’ [Citation.” [Citation.]’ ” (People v. Zambrano
(2004) 124 Cal.App.4th 228, 241, citing People v. Smithey (1999) 20 Cal.4th 936, 960.)
“ ‘A prosecutor has a duty to prosecute vigorously. “But, while he may strike hard
blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.” ’ [Citation.]” (Zambrano, at p. 241.)
A conviction will not be reversed for prosecutorial misconduct unless it is
reasonably probable the jury would have reached a more favorable result in the absence
of the misconduct. (People v. Crew (2003) 31 Cal.4th 822, 839.) Where the challenge is
to comments made to the jury, “the question is whether there is a reasonable likelihood
that the jury construed or applied any of the complained-of remarks in an objectionable
fashion.” (People v. Berryman (1993) 6 Cal.4th 1048, 1072.)
With these principles in mind, we consider the actions defendant challenges. First,
when questioning Carlos, the prosecutor four times either prefaced questions or included
within the questions a reference to a “robbery that resulted in the death of a human
11 Although defendant did not object to all of the statements and questions he now
challenges, we will consider his contentions on the merits. (See People v. Williams
(1998) 17 Cal.4th 148, 161, fn. 6.)

-- 21 of 33 --

22
being.”12 Defendant contends these references were gratuitous and were designed to
encourage the jury to accept one of the prosecutor’s theories of murder. These references
were confined to a brief portion of the prosecutor’s examination, and there is no basis to
conclude the jury applied them in an objectionable manner or that they prejudiced
defendant in his effort to argue that the robbery was already finished when the shooting
occurred.
Second, the prosecutor stated during closing argument: “What is the defense
going to be in this case? [Defense counsel] is a talented attorney. He’s professional.
And he’s doing all that he can to protect his client and to advocate for his client and you
cannot hold that against him at all. He has to get up here. He has to convince you that
Carlos is lying, Samantha didn’t see what she saw.” Defense counsel objected on the
ground that defendant had “no obligation to convince them of anything,” and the trial
court overruled the objection, noting, “This is argument.” Defendant contends this
argument improperly suggested to the jury that he had the burden of persuasion and
deprived him of the presumption of innocence. (See Taylor v. Kentucky (1978) 436 U.S.
478, 482 [presumption of innocence and prosecution’s burden of proof beyond a
reasonable doubt are fundamental principles].) We are unpersuaded. The prosecutor
emphasized early in his argument, “I have the burden in this case, and you need to hold
me to that burden. If I don’t convince you beyond a reasonable doubt that Gustavo
Moran is guilty of murder, then you find him not guilty. That’s your job. That’s my
12 The prosecutor prefaced his first question with, “[W]e’re going to ask you some
questions about a robbery that resulted in the death of a human being.” After establishing
the date of the crimes, the prosecutor repeated, “I’m going to talk to you about a robbery
that resulted in the death of a human being that occurred on that date.” Defendant’s
objections to these two references were overruled. After Carlos testified that he was
involved in the robbery and defendant used a gun during the incident, the prosecutor
asked, “[W]ere you arrested in the aftermath of that robbery that resulted in the death of a
human being?” Later, the prosecutor asked if Hector was “also involved in this robbery
that resulted in the death of a human being,” and defense counsel again raised an
objection. Outside the presence of the jury, defense counsel objected to the prosecutor’s
repeated references and asked for an admonition or mistrial, and the trial court overruled
the objection.

-- 22 of 33 --

23
role.” Near the end of his argument—shortly after the statement defendant challenges—
he told the jury, “This is a courtroom of law. There are rights that any person seated here
is given and deserves. When you do your job in that jury room, you honor the
presumption of innocence, you honor the defendant’s right not to testify, you honor my
burden. But make no mistake, the evidence in this case speaks for itself.” Thus, the
prosecutor’s argument as a whole was unambiguous as to who carried the burden of
proof. The jury was correctly instructed on the prosecution’s burden of proof.13 There is
no basis to conclude the jury viewed the prosecutor’s statement as anything more than
commentary on the strength of the evidence of defendant’s guilt.
Finally, defendant contends the prosecutor improperly appealed to the jury’s
sympathies during argument. In his closing argument, he told the jury Diaz had been
killed five years previously, and the jury had “the opportunity to finally put an end to this
case”; he told the jury Samantha was “still dealing with this because this case has taken
almost five years to be resolved by a jury such as the one here today”; and he said the
jury was “here today to finally put this case to bed to hold him accountable for the life
that he took.” In his rebuttal, he told the jury that for more than 250 years, “there’s been
rights and standards of justice that we follow in this country. Rights that protect this man
right here to have a fair trial, to not be prejudged by you because of his last name or
where he came from, or anything else. Whoever sits in that chair gets the same rights
that any of you would get. But I get rights too. The prosecution gets rights. The
community gets rights. The victim has rights.” He then urged the jury to “finally put an
end to a five-year long saga of pain and suffering.” Defendant argues these statements
amounted to “a systematic effort to inflame the passions of the jury against appellant” in
favor of Samantha.
We are not persuaded that these comments were reprehensible or infected the trial
with unfairness. The prosecutor did not use inflammatory language, he noted the youth
13 “The jurors are presumed to understand, follow, and apply the instructions to the
facts of the case before them.” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1229.)

-- 23 of 33 --

24
of those involved—including defendant—and he urged the jury not to be swayed by
prejudice. Shortly after telling the jury it would be able to “finally put an end to this
case,” the prosecutor continued, “[T]his case is nothing short of a tragedy. It’s something
that weighs heavier on the heart. The defendant in this case was 15 years old at the time,
19 years old now. The victim in this case, Jesus Diaz, he was 17 years old and 13 months
to the day that the defendant’s bullet went through his back. It’s a tragic case. It brings
no one pleasure sitting where you are and learning about these facts.” Immediately after
commenting that the prosecution, the community, and the victim had rights, the
prosecutor added, “Follow the law, follow the evidence. Don’t be swayed by bias or
prejudice.” His statements do not appear to have been designed impermissibly to inflame
the jury’s passions, and they did not constitute reversible misconduct. (See, e.g., People
v. Pearson (2013) 56 Cal.4th 393, 441 [rejecting claim that prosecutor improperly asked
jury to sympathize with certain witnesses to charged murders when he summarized their
testimony and commented that they were also victims of defendant’s massacre].) In any
event, given the substantial evidence of defendant’s guilt, we find “no reasonable
probability that the prosecutor’s appeal to the jurors’ sympathy for the victim affected the
verdict rendered.” (People v. Fields (1983) 35 Cal.3d 329, 363; see also People v.
Seumanu (2015) 61 Cal.4th 1293, 1344 [prosecutor’s argument improperly asked jury to
view crime through victim’s eyes, but was harmless error].)
E. Proposition 57
At the time defendant was charged and tried, California law permitted a district
attorney, for certain offenses, to file a case against a juvenile 14 years of age or older
directly in adult court. (Former Welf. & Inst. Code, § 707, subd. (d), repealed by
Prop. 57, § 4.2, as approved by voters Gen. Elec. (Nov. 8, 2016), eff. Nov. 9, 2016;
People v. Vela (2018) 21 Cal.App.5th 1099, 1105 (Vela).) Proposition 57 amended this
law “ ‘to eliminate direct filing by prosecutors. Certain categories of minors . . . can still
be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing
to consider various factors such as the minor’s maturity, degree of criminal
sophistication, prior delinquent history, and whether the minor can be rehabilitated.’ ”

-- 24 of 33 --

25
(People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305–306 (Lara); Welf. & Inst.
Code, § 707.) Defendant contends that the changes to Welfare and Institutions Code
section 707 implemented by Proposition 57 should be applied retroactively, and the
matter should be remanded for a transfer hearing.
In Lara, our high court recently considered whether this part of Proposition 57,
requiring transfer hearings in the juvenile court before a case against a 14- or 15-year old
defendant may be filed in criminal court, applies retroactively to defendants whose
judgments are not yet final. (Lara, supra, 4 Cal.5th at p. 303.) The court answered that
question in the affirmative, holding “this part of Proposition 57 applies to all juveniles
charged directly in adult court whose judgment was not final at the time it was enacted.”
(Id. at p. 304.) Defendant falls into this category, and he is entitled to the benefit of a
transfer hearing pursuant to Proposition 57.
The proper remedy is found in Vela. The defendant there, like defendant here,
was found guilty of murder and other offenses committed while he was a juvenile, before
the passage of Proposition 57. (Vela, supra, 21 Cal.App.5th at pp. 1102–1103.) The
appellate court concluded the transfer hearing provisions of Proposition 57 applied
retroactively (see In re Estrada (1965) 63 Cal.2d 740 (Estrada)) and that the defendant
was entitled to such a hearing. (Vela, at pp. 1104–1112.) The court conditionally
reversed the defendant’s conviction and ordered the juvenile court to conduct a juvenile
transfer hearing. (Id. at p. 1113.) The court went on, “When conducting the transfer
hearing, the juvenile court shall, to the extent possible, treat the matter as though the
prosecutor had originally filed a juvenile petition in juvenile court and had then moved to
transfer Vela’s cause to a court of criminal jurisdiction. ([Welf. & Inst. Code,] § 707,
subd. (a)(1).) If, after conducting the juvenile transfer hearing, the court determines that
it would have transferred [defendant] to a court of criminal jurisdiction because he is “not
a fit and proper subject to be dealt with under the juvenile court law,’ then [defendant’s]
convictions are to be reinstated. ([Welf. & Inst. Code,] § 707.1, subd. (a).)” (Vela, at
p. 1113; accord, People v. Pineda (2017) 14 Cal.App.5th 469, 483–484, rev. granted

-- 25 of 33 --

26
Dec. 13, 2017, S244451, rev. dism. and cause remanded Feb. 28, 2018.) We conclude
the same remedy is appropriate here, and we shall order the same disposition.
F. Sentencing Issues
1. Firearm Enhancement
The jury found true an allegation that defendant personally and intentionally
discharged a firearm and caused great bodily injury and death to Diaz within the meaning
of section 12022.53, subdivision (d). That statute provides an additional and consecutive
term of 25 years to life. The jury also found true allegations that defendant used a
firearm for purposes of section 12022.5, subdivision (a), which provides for an additional
term of three, four, or ten years, and section 12022.53, subdivision (b), which provides
for an additional term of ten years.
After defendant’s sentencing, the Legislature enacted Senate Bill 620. (Sen. Bill
No. 620 (2017–2018 Reg. Sess.) [effective January 1, 2018].) This bill amended sections
12022.5 and 12022.53 to give trial courts discretion, “in the interest of justice pursuant to
Section 1385” to “strike or dismiss an enhancement otherwise required to be imposed” by
those statutes (§§ 12022.5, subd. (c), 12022.53, subd. (h), as amended by Stats. 2017,
ch. 682, §§ 1, 2.) The discretion conferred by the statute “applies to any resentencing that
may occur pursuant to any other law.” (Ibid.) Defendant contends these provisions
should be applied retroactively and that he is entitled to ask the trial court to exercise its
new discretion to strike the firearm enhancement. The Attorney General concedes that
the amendments apply retroactively, but argues remand is unnecessary because the trial
court would not dismiss or strike the firearm enhancement.
We agree with all of the other courts that have addressed this issue that the
amendments to sections 12022.5 and 12022.53 apply retroactively to cases not yet final
on appeal. (Vela, supra, 21 Cal.App.5th at pp. 1113–1114, citing Estrada, supra,
63 Cal.2d at pp. 742–748 and People v. Francis (1969) 71 Cal.2d 66, 75–76; People v.
Woods (2018) 19 Cal.App.5th 1080, 1090–1091; see People v. Hurlic (2018) 25
Cal.App.5th 50, 56.) As explained in People v. Arredondo (2018) 21 Cal.App.5th 493,
507, “a statute which lessens the penalty for a crime gives rise to an inference the

-- 26 of 33 --

27
Legislature intended the change to apply to all nonfinal cases. [Citations.] Provisions
which give trial courts discretion to reduce a sentence previously required by the Penal
Code are nonetheless changes which benefit offenders who committed particular offenses
or engaged in particular conduct and thereby manifest an intent by the Legislature that
such offenders be given the benefit of that discretion in all cases which are not yet final.”
Our colleagues in Division One recently set forth the standards for determining
when a remand is required to allow a trial court to exercise sentencing discretion.
(People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) “ ‘When the record shows that
the trial court proceeded with sentencing on the . . . assumption that it lacked discretion,
remand is necessary so that the trial court may have the opportunity to exercise its
sentencing discretion at a new sentencing hearing. [Citations.] Defendants are entitled to
“sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing
court,” and a court that is unaware of its discretionary authority cannot exercise its
informed discretion.’ [Citation.] But if ‘the record shows that the trial court would not
have exercised its discretion even if it believed it could do so, then remand would be an
idle act and is not required.” ’ [Citation.]” (Ibid.)14
Nothing in the sentencing hearing gives any insight into how the trial court might
have exercised its discretion in this situation; the extent of the court’s comments was as
follows: “Considering everything that I heard on this case throughout the jury trial, as
well as the probation report: On Count One, he’ll receive 25 years to life. And
consecutive to that for the use clause, he will receive an additional consecutive 25 years
to life. For a total of 50 years to life. Count Three, I will deem 654. And Count Four, I
will deem 654.” On this record, we shall remand the matter to the trial court to allow it to
14 Again, numerous other courts agree. (See People v. Billingsley (2018)
22 Cal.App.5th 1076, 1081–1082; People v. Chavez (2018) 22 Cal.App.5th 663, 712–
714; People v. Arredondo, supra, 21 Cal.App.5th 493; People v. Mathews (2018) 21
Cal.App.5th 130, 132; People v. Robbins (2018) 19 Cal.App.5th 660, 678–679; People
v. Woods, supra, 19 Cal.App.5th 1080, 1090–1091.)

-- 27 of 33 --

28
consider whether to exercise its new discretion. We express no view as to how the trial
court should exercise its discretion.
2. Cruel and Unusual Punishment
Defendant also argues his sentence of 50 years to life constitutes cruel and unusual
punishment because the trial court failed to consider the mitigating factors of his youth
and background as required by Miller v. Alabama (2012) 567 U.S. 460, 465 (Miller) and
Graham v. Florida (2010) 560 U.S. 48, 74 (Graham). In light of recent statutory
amendments, this claim is moot.
Graham held that the Eighth Amendment prohibits states from sentencing a
juvenile convicted of nonhomicide offenses to life imprisonment without the possibility
of parole, and that such offenders must be given a meaningful opportunity to obtain
release based on maturity and rehabilitation. (Graham, supra, 560 U.S. at pp. 74–75.) In
Miller, 567 U.S. at pages 465, 477–478, the United States Supreme Court applied the
reasoning of Graham to homicide cases, holding that mandatory life without parole
(LWOP) sentences for juveniles violate the Eighth Amendment’s prohibition on cruel
and unusual punishment, because such a sentence “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 that he might have
been charged and convicted of a lesser offense if not for the 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.” In People
v. Caballero (2012) 55 Cal.4th 262, 268–269, when considering a juvenile convicted of
nonhomicide offenses and sentenced to a term of 110 years in prison, our high court
extended the reasoning of Graham to sentences that were so long as to be the functional
equivalent of LWOP.

-- 28 of 33 --

29
Our Legislature addressed this issue in 2013 by enacting Senate Bill No. 260,
which became effective January 1, 2014. (Stats. 2013, ch. 312, § 1 et seq.) A provision
of that bill, section 3051, currently provides that “any prisoner who was under 25 years of
age at the time of his or her controlling offense” shall be provided a “youth offender
parole hearing . . . for the purposes of reviewing the [prisoner’s] parole suitability.”
(§ 3051, subd. (a)(1); and see § 3046, subd. (c).)15 Where the sentence for the offense is
a term of 25 years to life, the prisoner is eligible for parole “during his or her 25th year of
incarceration at a youth offender parole hearing” (§ 3051, subd. (b)(3)), at which the
Board of Parole Hearings “give[s] great weight to the diminished culpability of youth as
compared to adults, the hallmark features of youth, and any subsequent growth and
increased maturity of the prisoner in accordance with the relevant case law” (§ 4801,
subd. (c)).
The defendant in People v. Franklin (2016) 63 Cal.4th 261, 268, was convicted of
a murder that took place when he was 16 years old, and sentenced to two consecutive
25-years-to-life sentences. He challenged his sentence under Miller on the ground it was
the functional equivalent of an LWOP sentence for a juvenile offender and therefore
violated the Eighth Amendment to the federal Constitution. (Ibid.) Our high court held
that the constitutional challenge was rendered moot by the passage of Senate Bill No.
260, which provided the defendant with a meaningful opportunity for parole during his
25th year of incarceration. (Id. at pp. 279–280.) However, because it was not clear the
defendant had had sufficient opportunity to put on the record the information that would
be relevant at a future youth offender parole hearing, the court remanded the matter to the
trial court to determine whether he had had such an opportunity. (Id. at p. 284.)
Following Franklin, we conclude that Senate Bill No. 260 rendered moot
defendant’s claim that his sentence violates the Eighth Amendment because it is the
functional equivalent of LWOP.
15 This provision originally applied to prisoners who were under the age of 18 at
the time of the offense. (Stats. 2013, ch. 312, § 4.)

-- 29 of 33 --

30
The Attorney General argues there is no need for a remand to determine whether
defendant had the opportunity to make a record of information that would be relevant at a
future youth offender parole hearing because defendant was sentenced after both Miller
and the enactment of section 3051, and he had the opportunity to present mitigating
evidence to the trial court. That position finds some support in reported authority. (See
People v. Cornejo (2016) 3 Cal.App.5th 36, 68–69 [no need for remand where defendants
were sentenced after Miller and they had opportunity to make record of their
characteristics and circumstances in form of sentencing memoranda and character
reference letters]; People v. Woods, supra, 19 Cal.App.5th at p. 1089 [no basis for
Franklin remand where sentencing hearing took place after amendment to section 3051
and defense counsel had opportunity and incentive to make adequate record].) Further, it
is true that defense counsel put in the record some evidence bearing on defendant’s future
suitability for parole—a letter from a minister attesting to defendant’s growth while in
juvenile detention and jail from an impulsive boy to a man of “maturity and wisdom”—
and that he argued that Miller and Graham showed that juveniles were “constitutionally
different” in their “ ‘immaturity, impetuosity [and] the failure to appreciate risks and
consequences’ ” and that the court should therefore decline to impose consecutive
sentences or strike the firearm enhancement. Nevertheless, defendant was sentenced
before our high court’s decision in Franklin, which first expressly afforded juvenile
offenders the right to present evidence at a so-called “baseline hearing” on their future
suitability for parole. “Because appellant did not have the benefit of that decision at the
time of his sentencing hearing, fairness dictates that matter be remanded for further
proceedings.” (People v. Tran (2018) 20 Cal.App.5th 561, 570; accord, People v. Jones
(2017) 7 Cal.App.5th 787, 819–820 [remand appropriate where defendant was sentenced
after enactment of § 3051 but prior to Franklin].
As we have already explained, defendant is entitled to a transfer hearing in the
juvenile court to determine whether he should be dealt with under the juvenile court law.
If he is ultimately transferred back to criminal court, he is entitled to a separate hearing

-- 30 of 33 --

31
that will allow him to make a further record of factors that may apply at a future youth
offender parole hearing.
III. DISPOSITION
The judgment is conditionally reversed. The cause is remanded to the juvenile
court with directions to conduct a transfer hearing, as discussed in this opinion, no later
than 90 days from the filing of the remittitur if the prosecution moves for such a hearing.
If, at the transfer hearing, the juvenile court determines that it would have transferred
defendant to a court of criminal jurisdiction under current law, the convictions shall be
reinstated as of that date. The trial court is then directed to allow defendant to make a
record of information that would be relevant at a future youth offender parole hearing,
and to consider whether to exercise its discretion to strike the section 12022.53
enhancement.
If no motion for a transfer hearing is filed, or if a hearing is held and the juvenile
court determines it would not transfer defendant to a court of criminal jurisdiction,
defendant’s criminal convictions and enhancements will be deemed to be juvenile
adjudications as of that date. The court is then to conduct a dispositional hearing and
impose an appropriate disposition within the court’s discretion.

-- 31 of 33 --

32
_________________________
Schulman, J.*
We concur:
_________________________
Streeter, Acting P.J.
_________________________
Reardon, J.
*Judge of the Superior Court of California, City and County of San Francisco, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
People v. Moran (A145499)

-- 32 of 33 --

33

-- 33 of 33 --