P. v. Rivera

Filed 2/8/12 P. v. Rivera CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
FERNANDO GIL RIVERA,
Defendant and Appellant.
G043460
(Super. Ct. No. SWF006720)
O P I N I O N
Appeal from a judgment of the Superior Court of Riverside County, Judith
C. Clark, Judge. Affirmed as modified.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and
Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
* * *

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Defendant Fernando Gil Rivera appeals his conviction of two counts of
murder (Pen. Code, § 187),1 for which he was sentenced to two consecutive terms of life
without the possibility of parole. Other than modifying the judgment to strike a parole
revocation fine, we affirm.
FACTS
Defendant, Shawn Khalifa, and Mark Anthony Gardner, Jr., were charged
with the murder of 77-year-old Hubert Love, while engaged in the burglary and robbery
of Love‟s home.2 Rivera was also charged with the murder of Juan Pena, who also
allegedly participated in the murder of Love. Defendant, born in October 1987, turned 16
years old a few months prior to the murders.
Evidence
Defendant, Gardner, and Khalifa were together at approximately 8:00 p.m.,
on January 27, 2004. Sometime later, Pena arrived at Khalifa‟s house. Following a
conversation about money issues in which defendant suggested robbing Love, the group
walked toward Love‟s residence. Pena and defendant walked toward and entered the
front door of Love‟s home. Khalifa entered the house and looked through the kitchen
drawers. Gardner stayed outside. Gardner heard Rivera say (from inside the house),
“Shut the fuck up. You‟re being too loud.”
1 Unless referenced otherwise, all statutory references are to the Penal Code.
2 In a prior opinion, we affirmed Khalifa‟s murder conviction and prison
sentence of 25 years to life. (See People v. Khalifa (Apr. 7, 2010, G040331) [nonpub.
opn.].) As discussed in our prior opinion, Gardner testified during the trial of defendant
and Khalifa pursuant to a plea bargain with the prosecutor.

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Khalifa and Gardner walked away from the house; defendant and Pena got
into Love‟s car and drove down the street. Defendant drove and Pena sat in the front
passenger seat. Khalifa got into the car at the prompting of defendant and Pena, but
Gardner declined to do so.
On January 28, 2004, police responded to a citizen‟s report of a dead body
in a canal. It was Pena, who had been shot to death.
On January 29, 2004, police responded to a citizen‟s report of an
abandoned car with blood stains. The police determined the car was owned by Love.
Police then discovered Love‟s dead body in his home.
Police interviewed defendant on January 31, 2004. The prosecution played
a recording of the interview for the jury and the transcript was entered into evidence. In
the interview, defendant admitted he and the three others went to Love‟s home to take
Love‟s money. Defendant claimed Pena had a gun and began beating Love as soon as
Love opened the door. Defendant admitted he kicked Love three times in the stomach.
Defendant attributed the death of Pena to an unidentified Black man, who shot Pena from
outside the car and then entered the back seat to force defendant to help hide the dead
body of Pena.
The coroner testified that Pena had been shot five times; the bullets entered
the left side of his head and body. The coroner testified that, based on the “stippling” on
Pena‟s head, the shooter was closer than two feet to Pena when Pena was shot.
According to the coroner, the facts were more consistent with the prosecution‟s theory
(i.e., the shooter was in the driver‟s seat) than a theory that the shooter was in the back
seat. The “medium caliber” bullets recovered from Pena‟s body “would be consistent
with a .9 millimeter or a .380 . . . .”
Gardner had previously seen defendant with a gun, which Gardner thought
was a .380 caliber. Police found various guns and ammunition at defendant‟s residence

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and the residence of defendant‟s brother (including .380 caliber ammunition). Police
never found the gun used to shoot Pena.
While in custody awaiting trial, defendant threatened Gardner not to say
anything.
Procedural History
By information, defendant was accused of: (1) count 1 — the willful,
deliberate, and premeditated murder of Love while engaged in section 190.2, subdivision
(a) (17) special circumstances of robbery and burglary; and (2) count 2 — the willful,
deliberate, and premeditated murder of Pena, with the special circumstance of two
murders in the same proceeding alleged pursuant to section 190.2, subdivision (a)(3). As
to count 2, it was alleged that defendant personally and intentionally discharged a firearm
pursuant to section 12022.53, subdivision (d).
After initially pleading not guilty to all charges, defendant eventually
pleaded guilty to count 1 (the Love murder) and admitted the special circumstances (i.e.,
the murder occurred during a burglary and robbery). A jury found defendant guilty of the
Pena murder and found the charged enhancements to be true. The court sentenced
defendant to two consecutive terms of life without the possibility of parole, along with a
consecutive 25 years to life sentence for the firearm enhancement.
DISCUSSION
Defendant raises eight issues on appeal. We provide additional factual
material below as needed to address each of the eight issues.

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Jury Selection
Defendant first contends the court erred by denying his two Batson/Wheeler
motions.3 Defendant asserts the prosecutor improperly utilized his peremptory
challenges to systematically remove prospective Hispanic and women jurors. Under
Batson/Wheeler and their progeny, “[a] party may not use peremptory challenges to
remove prospective jurors solely on the basis of group bias. Group bias is a presumption
that jurors are biased merely because they are members of an identifiable group
distinguished on racial, religious, ethnic, or similar grounds.” (People v. Fuentes (1991)
54 Cal.3d 707, 713 (Fuentes).)
Once a Batson/Wheeler motion is made, trial courts follow a three-step
procedure: (1) the moving party has the burden of establishing a prima facie showing of
improper use of peremptory challenges; (2) the burden shifts to the opposing party to
provide a bias-free explanation for the use of peremptory challenges; and (3) the trial
court assesses the credibility of the bias-free explanation and determines whether there
was wrongful discrimination. (People v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix);
see also Fuentes, supra, 54 Cal.3d at p. 714.)
“„Credibility can be measured by, among other factors, the prosecutor‟s
demeanor; by how reasonable, or how improbable, the explanations are; and by whether
the proffered rationale has some basis in accepted trial strategy.‟ [Citation.] In assessing
credibility, the court draws upon its contemporaneous observations of the voir dire. It
may also rely on the court‟s own experiences as a lawyer and bench officer in the
community, and even the common practices of the advocate and the office that employs
him or her.” (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.) “In addition, race-neutral
reasons for peremptory challenges often invoke a juror‟s demeanor (e.g., nervousness,
3 See Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler), disapproved on a ground not material to this appeal in
Johnson v. California (2005) 545 U.S. 162, 168, 173.

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inattention), making the trial court‟s first-hand observations of even greater importance.”
(Snyder v. Louisiana (2008) 552 U.S. 472, 477.) One way to weigh the sincerity of
proffered reasons for excusing prospective jurors is to compare the empanelled jurors to
excluded jurors. (Lenix, supra, 44 Cal.4th at pp. 621-624.)
Here, it is uncontested that defendant made a prima facie showing jurors
were being removed on the basis of group bias. It is also uncontested that the prosecutor
offered race and gender-neutral explanations for using peremptory challenges to remove
the prospective jurors at issue. Our review of the record indicates “[t]he trial court denied
the motions only after observing the relevant voir dire and listening to the prosecutor‟s
reasons supporting each strike and to any defense argument supporting the motions.
Nothing in the record suggests that the trial court either was unaware of its duty to
evaluate the credibility of the prosecutor‟s reasons or that it failed to fulfill that duty.”
(People v. Lewis (2008) 43 Cal.4th 415, 471.) Thus, the only question on appeal is
whether substantial evidence supports the court‟s rulings that the prosecutor‟s use of
peremptory challenges was not based on group bias. (Ibid.; Lenix, supra, 44 Cal.4th at p.
613; see also People v. Williams (1997) 16 Cal.4th 635, 666 [“We accord great deference
to a trial court‟s determination of the sufficiency of a prosecutor‟s explanations for
exercising peremptory challenges”].)
The venire consisted of 80 prospective jurors, 66 of whom were identified
on the record before 12 jurors and three alternates were selected. Ten prospective jurors
(out of the 66 identified on the record) were excused for cause or hardship. The
prosecutor and defense counsel were each entitled to 20 peremptory challenges.
Defendant exercised all 20 of his peremptory challenges, while the prosecutor exercised
18 peremptory challenges. The jury panel consisted of seven females and five males; the
alternate jurors included two females and one male.
After the prosecution exercised its 12th peremptory challenge, defendant
moved pursuant to Batson/Wheeler, arguing Hispanic jurors were being improperly

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excluded from the jury by the prosecution. Six prospective jurors with “Hispanic
surnames” had been excused by the prosecution: Diane T., April R., Ruth T., Rene G.,
Nancy B., and Elizabeth Y. “[B]ased on the number of those jurors,” the court found a
prima facie showing of bias.
The prosecutor provided his reasons for excusing each of the six jurors: (1)
Diane T. — she watched C.S.I. and did not seem sophisticated (she worked as a phone
operator); (2) April R. — her brother was wrongfully accused of murder; (3) Ruth T. —
her profession (graphics) and her daughter‟s profession (massage therapy) seemed liberal
(the prosecutor also noted he did not realize Ruth T. was Hispanic based on her
appearance); (4) Rene G. — he expressed a discomfort with sitting in judgment of
another; (5) Nancy B. — she had an engineering background; and (6) Elizabeth Y. —
she had previously sat on a hung jury.
The prosecutor noted he gladly would have empanelled two individuals
with Hispanic surnames who were struck by defendant — Elias G. and Rachel G. The
prosecutor also noted “there appears to be four additional Hispanics seated in the box
which is, I think, a high proportion compared to the numbers that have coming through at
this stage that the People have not kicked off.” Defense counsel disagreed with the latter
point, claiming only Juror No. 6 was Hispanic; the court noted that Juror No. 1 might be
Hispanic as well.
The court found a “race neutral reason for the exercise of the challenges”
with regard to April R., Rene G., Nancy B., and Elizabeth Y. “With those four jurors
having been kicked off for a race neutral reason, the remaining jurors who have been
excused, where the court doesn‟t quite understand the basis of those challenges, they do
not establish a pattern of the exercise of improper challenges based on an identified
protected class. And for those reasons collectively, the court does not feel that there has
been demonstrated a pattern of the exercise of challenges for an improper basis. As such,
the Wheeler motion would be denied at this point.”

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Our review of the record leads us to conclude there is substantial evidence
supporting the court‟s denial of the motion. During voir dire, April R. stated her “brother
was wrongfully accused of homicide” and the charges were later dropped after he spent a
year in custody. “[T]he arrest or conviction of a juror‟s relative provides a legitimate,
group-neutral basis for excluding a juror.” (People v. Turner (2001) 90 Cal.App.4th 413,
419.) Rene G. expressed reluctance to stand in judgment: “You‟re talking about
somebody‟s whole life, and I don‟t know.” Nancy B. informed the court she was an
engineering technician for a municipality. Elizabeth Y. previously sat on a hung jury,
which is a legitimate reason to excuse a juror. (People v. Turner (1994) 8 Cal.4th 137,
170, disapproved on a different point in People v. Griffin (2004) 33 Cal.4th 536, 555, fn.
5.)
And although the court did not understand the prosecutor‟s reasoning with
regard to Diane T. and Ruth T., the court did not find the prosecutor purposefully
discriminated against these jurors on the basis of their Hispanic surnames. There is
evidence supporting the prosecutor‟s cited reasons for striking these jurors. Diane T. was
an operator and watched crime shows like C.S.I. Ruth T. worked in graphics and her
stepdaughter worked as a fashion designer (her son was a massage therapist).
Thus, there is substantial evidence supporting the court‟s denial of
defendant‟s motion with regard to Hispanic jurors. Defendant tries to find fault with the
prosecutor‟s stated rationales by comparing the excused individuals with (presumably
non-Hispanic) jurors (i.e., other jurors also watched crime shows, had arguably “liberal”
professions, and had engineering/science backgrounds). This comparative approach is an
appropriate way to ferret out the use of pretextual rationales by prosecutors. But the
superficial comparisons cited by defendant cannot overcome the trial court‟s conclusion,
after a careful review at the Batson/Wheeler hearing, that the prosecutor‟s peremptory
challenges were not based on bias toward Hispanics.

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Following the denial of defendant‟s initial motion, the jury selection
process continued. After the prosecution exercised its 16th peremptory challenge,
defendant moved for the second time pursuant to Batson/Wheeler, this time citing the fact
that 12 of 16 peremptory challenges resulted in females being excused (five of these
women also had Hispanic surnames and were discussed above). The court again found a
prima facie case of bias had been established (based solely on the numbers) and asked the
prosecutor to explain his selections.
The prosecutor presented several general defenses of his selections. First,
he correctly noted that he had earlier passed three different juries consisting of, in one
instance, equal numbers of females and males and, in two cases, more females (seven)
than males (five). Second, he explained that because defendant had utilized nearly all of
his peremptory challenges to remove male prospective jurors, the remaining potential
jurors were disproportionately female. Indeed, the prosecution had earlier filed its own
Batson/Wheeler motion against defense counsel for utilizing 14 out of 18 peremptory
challenges on prospective male jurors. Third, the prosecutor explained with regard to
female jurors he had earlier passed on but subsequently struck, these jurors were
acceptable as part of a gender-balanced jury, but became the least desirable (from the
prosecution‟s point of view) after defendant continued to strike male jurors and skew the
jury toward an unbalanced gender ratio.
The prosecutor also provided specific reasons for striking each of the seven
individual prospective female jurors not previously addressed in the prior motion: (1)
Diane W. — her best friend‟s husband was killed in a drug deal and she worked for the
United States Post Office; (2) Susan Z. — she was a school psychologist; (3) Jacqueline
B. — she was married to a software engineer and was the “least pro-prosecution juror
that was available at that stage”; (4) Amanda F. — she was a young, inexperienced full-
time student; (5) Julia L. — a self-employed florist who said she could not look at
horrific photographs; (6) Dorothy W. — a senior (in her 70‟s), who might be less

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perceptive; and (7) Leanna M. — worked for Department of Public Social Services, a
group the prosecutor thought was “very critical of the District Attorney‟s office and law
enforcement.”
Based on the totality of the circumstances, the court denied defendant‟s
second Batson/Wheeler motion. We again conclude that the court‟s ruling is supported
by substantial evidence. For one, the prosecutor‟s stated reasons for each juror have a
basis in the record. We also agree with the prosecutor‟s lament that because defendant
removed so many males from the venire, it was only natural that most of the peremptory
challenges utilized by the prosecutor were on prospective female jurors. The
composition of the jury (seven females, five males) is a good indication that the
prosecutor did not do anything untoward with regard to removing females as a class from
the jury.
Defendant’s Potential Testimony at Suppression Hearing
Defendant next argues the court erred with regard to a ruling at a hearing
regarding the suppression of admissions made by defendant during his postarrest
interrogation. Defendant did not actually testify at the suppression hearing, based
(apparently) on the court‟s ruling. The court ultimately denied defendant‟s suppression
motion.
Defendant characterizes the court‟s ruling as prospectively allowing any
statements made by defendant during his suppression hearing testimony to be used in the
prosecution‟s case-in-chief. Were defendant accurately describing the court‟s ruling, the
court would have committed error. “If a defendant testifies at a suppression hearing in
superior court, his testimony may not be used against him by the People in their case in
chief. [Citations.] However, if a defendant‟s testimony at a pretrial suppression hearing
is inconsistent with his testimony at trial, the People may use such pretrial testimony for
impeachment.” (People v. Drews (1989) 208 Cal.App.3d 1317, 1325; see Simmons v.

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United States (1968) 390 U.S. 377, 394.) “Permitting the prosecution to use testimony
from the suppression hearing at the case-in-chief when defendant did not take the stand
would have the impermissible effect of forcing a defendant to choose between the
exercise of two constitutional rights; either he gives up his Fourth Amendment privilege
by remaining silent at the suppression hearing, or he is denied his Fifth Amendment self-
incrimination privilege when his suppression hearing testimony is read into the record at
the full trial.” (People v. Douglas (1977) 66 Cal.App.3d 998, 1004.)
But the court did not actually rule that any testimony by defendant during
the suppression hearing could be used in the prosecution‟s case-in-chief. We describe the
background to this dispute in some detail to provide the context for the court‟s ruling.
According to Detective Robert Spivacke (who conducted the interrogation
of defendant), defendant‟s mother was present at the time of defendant‟s arrest. Spivacke
had no knowledge of defendant‟s mother requesting counsel for defendant. Defendant
was taken to the police station and questioned. Prior to substantive questioning,
defendant was provided with warnings pursuant to Miranda v. Arizona (1966) 384 U.S.
436.
Defense counsel moved to suppress admissions made by defendant during
his postarrest interview. Defense counsel represented that defendant would testify at the
suppression hearing to the effect that he had “asked to speak to his mother and father for
several minutes while waiting . . . to be transported [to the police station]. And that
[defendant] did not see Detective Spivacke until they were introduced to each other at the
facility.” Defendant, who suffered an injury to his head during his arrest, would testify
he was segregated away from his parents and the detaining officers refused to allow him
to talk to his parents.
The court raised a concern: “If he takes the stand in this motion . . . and
therefore places his credibility [at issue], does that subject him to cross-examination by
[the prosecutor] in all regards?” The parties then argued over whether cross-examination

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could be limited to the sole issue of what took place at defendant‟s residence when he
was arrested (defendant‟s position) or if the prosecutor could inquire into all issues
pertaining to defendant‟s credibility, in particular statements made to law enforcement
concerning the murder of Love and Pena. Defense counsel argued that under Evidence
Code section 352, the court could restrict cross-examination. Defense counsel added: “if
the Court tells me that the district attorney is allowed to go into those areas, then I‟m
telling [defendant] now” not to testify.
At the continued suppression hearing, the issue of defendant testifying was
raised again. The court stated its belief that defendant‟s credibility would be placed in
issue and the court indicated it would not “limit cross-examination on the matters that
bear upon credibility.” The court also stated, “And, therefore, any admissions made in
the course of that testimony, under cross, would be admissible against him in a
subsequent trial by the prosecution.” Defendant‟s argument on appeal is based on this
latter statement, which certainly could be interpreted in isolation to mean what defendant
now contends it means on appeal. But nothing in the record suggests the court was
actually ruling that anything said by defendant during his suppression hearing cross-
examination would be admissible in the prosecution‟s case-in-chief. This issue had not
been raised by the parties or court before the court‟s statement. Defendant did not object
to the court‟s statement.
Defendant‟s claim is forfeited for lack of a clear ruling by the court that it
would allow defendant‟s suppression hearing to be used in the prosecution‟s case-in-chief
and a clear objection by defendant to the court‟s ruling on the constitutional ground
raised in this appeal. (See People v. Partida (2005) 37 Cal.4th 428, 434-435.) Placed
into its proper context, it does not appear the court was really ruling in the manner
suggested by defendant in his appellate briefs. We decline defendant‟s invitation (first
raised in his reply brief) to consider whether he received ineffective assistance of counsel
with regard to defense counsel‟s representation at the suppression hearing.

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Sufficiency of Evidence Proving Defendant Murdered Pena
Defendant posits there is insufficient evidence in the record to support the
jury‟s guilty verdict with regard to the murder of Pena and the jury‟s true finding with
regard to defendant‟s personal discharge of a firearm. Defendant notes there is evidence
suggesting Khalifa could have been the real killer of Pena. We review the judgment for
substantial evidence. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572-1573.)
Defendant was in the driver‟s seat of the car when Pena was shot and killed
while sitting in the front passenger seat. Pena was shot five times at close range. Bullets
recovered from Pena‟s head were most likely from a .380 caliber or .9 millimeter gun.
Several days before Pena was killed, Gardner saw defendant showing off a .380 caliber
gun. Defendant had a motive for killing Pena, namely having just participated in a
murder with Pena. In sum, there is substantial evidence supporting the jury‟s findings.
Admission of Evidence of Murder of Love
Defendant also claims the court erred by allowing evidence of the murder
of Love to be used against him in his trial for the murder of Pena. After he pleaded guilty
to the Love murder, defendant requested that the court exclude details about the Love
murder to avoid unduly prejudicing the jury. The court denied the pretrial motion: “the
probative value of that evidence outweighs the prejudicial impact of that evidence under
a [Evidence Code section] 352 analysis, either on the issue of deliberation, premeditation,
and an intent to kill . . . or . . . on the issue of motive, identification, . . . and intent under a
theory of felony murder.”
During the trial, defendant reiterated his objection with regard to specific
evidence of the Love murder — graphic photographs of Love‟s brutally beaten body.
The court overruled defendant‟s objection to the introduction of this evidence: “[B]e it
an issue of intent to kill, be it the question of motive, be it the question of reckless
disregard, any of those bases, the evidence of the Love murder would be admissible as

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evidence to prove any of those facts for purposes of Count 2. I appreciate the fact that
photos are more inflammatory than just the testimony, but the fact is that the credibility
of every witness who testifies in any criminal case is an issue for the jury. And that
means the credibility of the coroner is at issue as well, and the prosecutor has a right to
corroborate the testimony of the coroner by showing pictures that corroborate their
assessments of the injuries . . . . [¶] The fact is that the pictures of the injuries . . . do
establish a level of proof with regards to intent to kill. . . . [T]hat would go also to the
issue of an absence of mistake in that regard.”
Defendant concedes on appeal that it was not error for some of the evidence
pertaining to Love‟s murder to have come into evidence. For instance, Gardner‟s
testimony about the burglary suggested defendant may have been angry because of the
noise made during the Love murder. This testimony provided a motive for killing Pena,
as argued by the prosecutor during closing argument. Defendant claims the court
prejudicially erred, however, by admitting the coroner‟s testimony about Love‟s death
and photos of Love‟s dead body, which served only to inflame the jury with regard to the
brutality of the Love murder.
We review evidentiary rulings under Evidence Code sections 1101 and 352
for an abuse of discretion. (People v. Foster (2010) 50 Cal.4th 1301, 1328.) “„“[A] trial
court‟s ruling will not be disturbed, and reversal . . . is not required, unless the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.”‟” (Id. at pp. 1328-1329.)
“Except as otherwise provided by statute, all relevant evidence is
admissible.” (Evid. Code, § 351.) “Character evidence is not admissible to show
conduct on a specific occasion. [Citation.] This type of evidence sometimes is referred
to as evidence of criminal disposition or propensity.” (People v. Carter (2005) 36
Cal.4th 1114, 1147; see also Evid. Code § 1101, subd. (a).) But “[n]othing . . . prohibits
the admission of evidence that a person committed a crime, civil wrong, or other act

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when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident . . . ) other than his or her disposition
to commit such an act.” (Evid. Code, § 1101, subd. (b); see also People v. Ewoldt (1994)
7 Cal.4th 380, 402-403 (Ewoldt), superseded on other grounds by Evid. Code § 1108.)
The court did not abuse its discretion by admitting testimony and
photographs concerning the murder of Love. It can plausibly be argued (as defendant
does here) that it was unnecessary to admit all of this evidence. Defendant‟s admission to
the murder of Love and Gardner‟s testimony (along with evidence that Pena was shot five
times at close range) were certainly sufficient for the jury to conclude: (1) defendant had
a motive to murder Pena; (2) defendant intended to kill Pena; and (3) defendant did not
mistakenly kill Pena. But the trial court was better positioned than this court to draw the
precise line of admissibility. As noted by the court, the credibility of all the witnesses
was at issue. And the degree to which Love was brutally beaten was relevant to
defendant‟s motive in the Pena murder, as evidence suggests defendant could have been
angry with Pena because of Pena‟s conduct during the Love murder.
Even if we were to conclude the court abused its discretion in this case, any
error was harmless. (See People v. Cole (2004) 33 Cal.4th 1158, 1195 [error in admitting
evidence of prior crimes does not provide basis for reversal if such error was harmless].)
Defendant‟s identity as the shooter of Pena was the key factual issue in this case. It is not
reasonably probable that the jury would have reached a different result had the
photos/coroner‟s testimony pertaining to Love been excluded, given the other evidence
tending to show defendant‟s guilt.
Cruel and Unusual Punishment
Defendant next challenges his sentence of life in prison without parole as
unconstitutionally cruel and unusual due to his age (16 years old) at the time of his
offenses.

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Both the United States and California Constitutions prohibit cruel and
unusual punishment. “Whether a punishment is cruel or unusual is a question of law for
the appellate court, but the underlying disputed facts must be viewed in the light most
favorable to the judgment.” (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)
There are some bright line substantive limits on sentences dispensed to
juvenile offenders. (See, e.g., § 190.5, subd. (a) [“Notwithstanding any other provision
of law, the death penalty shall not be imposed upon any person who is under the age of
18 at the time of the commission of the crime”]; Roper v. Simmons (2005) 543 U.S. 551,
578-579 [death penalty for juveniles is unconstitutional regardless of crime committed];
People v. Demirdjian (2006) 144 Cal.App.4th 10, 17 [“For juveniles under 16 who were
14 or 15 when [a special circumstance murder] was committed, a life term without
possibility of parole is not permitted [under relevant California statutes], leaving a term
of 25 years to life with possibility of parole”].)
But California law allows a 16-year-old murderer (at the time of the
offense) like defendant to be sentenced to life without the possibility of parole. “The
penalty for a defendant found guilty of murder in the first degree, in any case in which
one or more special circumstances . . . has been found to be true under Section 190.4,
who was 16 years of age or older and under the age of 18 years at the time of the
commission of the crime, 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.” (§ 190.5, subd.
(b).)
Defendant does not point to any binding statute or case authority for his
contention that his sentence violates either the United States or California Constitutions.
Instead, defendant points to a minority of state jurisdictions that disallow life without
parole sentences for juveniles, as well as various international treaties prohibiting
sentencing juveniles to life in prison without parole. We reject defendant‟s contention.
(See, e.g., People v. Guinn (1994) 28 Cal.App.4th 1130, 1145-1148 [life without parole

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as imposed pursuant to § 190.5 is not cruel and unusual punishment for murder
committed by 16- or 17-year-old offender].)
There are also proportionality requirements inherent in the constitutional
prohibitions of cruel and unusual punishment. (See, e.g., People v. Dillon (1983) 34
Cal.3d 441, 487-489 [courts may reduce felony murder to second degree murder if
circumstances of case, including age of defendant, suggest the sentence required by a
felony murder conviction is excessive and disproportionate]; In re Lynch (1972) 8
Cal.3d 410, 424, fn. omitted [punishment is unconstitutional if it is “so disproportionate
to the crime for which it is inflicted that it shocks the conscience and offends
fundamental notions of human dignity”].)
But the trial court in this case did not exercise its discretion to reduce
defendant‟s punishment. As the court explained, the evidence suggested defendant
voluntarily entered an elderly man‟s house with the intent to commit burglary,
participated in the burglary, took part in beating the victim to death, stole the victim‟s
automobile, and then shot one of his confederates. The court, having explicitly
considered the age of defendant, ultimately concluded the depravity of the acts justified
defendant‟s sentence. We see no basis to disagree with the trial court‟s view of the
evidence.
Exercise of Discretion Under Section 190.5, Subdivision (b)
Nor did the court abuse its discretion under section 190.5, subdivision (b).
As discussed above, the court understood the applicable law and carefully considered the
facts of the case. After this review, the court decided to sentence defendant to
consecutive life terms without parole. We decline to interfere with the court‟s legitimate
exercise of discretion.

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Testimony of Coroner and Right to Confront Witnesses
In supplemental briefing, defendant raised the additional question of Sixth
Amendment confrontation clause error with regard to the testimony of the coroner. (See
Bullcoming v. New Mexico (2011) 564 U.S. __ [131 S.Ct. 2705] (Bullcoming); Melendez-
Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527] (Melendez-Diaz).) The
coroner providing testimony did not actually perform either the Love autopsy or the Pena
autopsy. Instead, he testified after reviewing autopsy reports prepared by two deputy
coroners (one for Love, one for Pena), as well as other materials (such as crime scene
investigator‟s reports, autopsy photographs, and drug testing reports). The autopsy
reports were not introduced into evidence.
“The Sixth Amendment‟s Confrontation Clause provides that, „[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.‟” (Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford).)
In Crawford, the Supreme Court held that the confrontation clause bars the prosecution‟s
introduction of “testimonial” out-of-court statements against a criminal defendant unless
the witness is unavailable at trial and the defendant had a prior opportunity for cross-
examination. (Id. at p. 68.) Testimonial statements include, but are not limited to: “prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations” (ibid.); “„ex parte in-court testimony or its functional equivalent — that
is, material such as affidavits, custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially‟” (id. at p. 51); “„extrajudicial statements . . .
contained in formalized testimonial materials, such as affidavits, depositions, prior
testimony, or confessions‟” (id. at pp. 51-52); and “„statements that were made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial‟” (id. at p. 52).

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Key cases since Crawford have focused on the question of whether written
reports documenting scientific testing are testimonial. In People v. Geier (2007) 41
Cal.4th 555 (Geier), our Supreme Court rejected the defendant‟s Crawford-based
challenge to the testimony of the prosecution‟s DNA expert, Robin Cotton, who opined
that the defendant‟s DNA matched the victim‟s DNA based on testing performed by
another analyst. (Geier, at pp. 594-596, 607.) Cotton was the laboratory director of
Cellmark, “a private, for-profit company that performs DNA testing” and “accepts
criminal cases from both the prosecution and defense.” (Id. at p. 594.) As the laboratory
director, Cotton oversaw testing and supervised the six analysts who conducted testing
for Cellmark. (Ibid.) Our Supreme Court concluded that a DNA report is not
testimonial. (Id. at p. 605.)
Two years later, the United States Supreme Court considered whether
documents “reporting the results of forensic analysis” were testimonial and therefore
subject to the defendant‟s right to confrontation. (Melendez-Diaz, supra, 129 S.Ct. at p.
2530.) The trial court, pursuant to Massachusetts law, admitted into evidence (without
accompanying testimony) certain “„certificates of analysis‟ showing the results of the
forensic analysis performed on the seized substances.” (Id. at p. 2531.) The documents
at issue “were sworn to before a notary public by analysts” at a state laboratory and
reported that the seized evidence contained cocaine. (Ibid.) A 5 to 4 majority of the
court found the certificates were testimonial because they were “quite plainly affidavits:
„declaration[s] of facts written down and sworn to by the declarant before an officer
authorized to administer oaths,‟” and that “the analysts‟ affidavits were testimonial
statements, and the analysts were „witnesses‟ for purposes of the Sixth Amendment.”
(Id. at p. 2532.) The court therefore reversed the judgment. (Id. at p. 2542.)
More recently, the United States Supreme Court held that the testimony at
trial of a “surrogate” laboratory employee does not vindicate the accused‟s right to
confront the individual who prepared a testimonial report stating the accused had a blood-

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alcohol content of .21 grams per hundred milliliters. (Bullcoming, supra, 131 S.Ct. at p.
2710.) The report included preliminary information concerning the arrest of the suspect
(filled out by a police officer), representations about the chain of custody of the blood
sample (made by various individuals), and the blood-alcohol content of the blood sample
(certified by the lab analyst). (Ibid.) The lab employee who conducted the blood tests
(Caylor) had been put on unpaid leave at the time of trial, but was not shown by the
prosecutor to be “unavailable.” (Id. at pp. 2711-2712, 2714.) The trial court admitted the
written report as a business record during the testimony of another lab employee, who:
(1) did not participate in the testing of the suspect‟s blood; (2) did not know why Caylor
had been put on unpaid leave; and (3) did not have an independent opinion concerning
the suspect‟s blood-alcohol content. (Id. at pp. 2712, 2715-2716.) The lab report was
testimonial because it was “„made for the purpose of establishing or proving some fact‟ in
a criminal proceeding.” (Id. at p. 2716.) Although the document was not sworn under
oath or notarized, “the formalities attending the „report of blood alcohol analysis‟ are
more than adequate to qualify [it] as testimonial.” (Id. at p. 2717.)
Having considered all of the foregoing authorities, we reject defendant‟s
assertion of confrontation clause error. At trial, defendant did not object to the
introduction of the evidence at issue. (Melendez-Diaz, supra, 129 S.Ct. at p. 2541 [“The
defendant always has the burden of raising his Confrontation Clause objection”].)
Because defendant did not object on Sixth Amendment grounds at trial, he has forfeited
any challenge on appeal. (People v. Williams (1997) 16 Cal.4th 153, 250 [constitutional
objections not properly raised at trial are forfeited on appeal].)
Even if we were to ignore defendant‟s forfeiture and assume the underlying
reports were testimonial (a big assumption as there are significant differences between
autopsy reports and DNA/drug testing reports completed for the express purpose of
testing whether a defendant can be linked to a crime), we would find no error.

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An expert witness generally may opine based on his or her review of
admissible or inadmissible material (so long as the material “is of a type that reasonably
may be relied upon by an expert in forming an opinion upon the subject to which his
testimony relates”). (Evid. Code, § 801, subd. (b).) Here, such material would logically
include the autopsy reports, autopsy photos, and other evidence pertaining to the
circumstances of this case. (See Bullcoming, supra, 131 S.Ct. at p. 2722 (conc. opn. of
Sotomayor, J.) [“[T]his is not a case in which an expert witness was asked for his
independent opinion about underlying testimonial reports that were not themselves
admitted into evidence”].)4 It is clear from our review of the record that the witness was
providing, for the most part, his own opinions rather than simply parroting conclusions in
the autopsy reports. Thus, it did not violate the confrontation clause for the coroner to
testify as an expert witness while utilizing autopsy materials not prepared by him.
We also note it may be acceptable for a supervisor who has taken part in the
testing process at issue to testify regarding written results recorded by subordinates. (See
Bullcoming, supra, 131 S.Ct. at p. 2722 (conc. opn. of Sotomayor, J.) [“It would be a
different case if, for example, a supervisor who observed an analyst conducting a test
testified about the results or a report about such results”].) The testifying coroner was the
supervisor of the two examining pathologists and was very familiar with their work.
Although the coroner did not directly participate in the autopsies at issue, he testified to
the protocols followed by his subordinates in performing autopsies, which include taking
photos and detailed notes.
4 In this respect, although its testimonial analysis conflicts with subsequent
United States Supreme Court cases, the result reached in Geier, supra, 41 Cal.4th 555,
may have been correct. The California Supreme Court has granted review in numerous
cases to consider Melendez-Diaz‟s effect on Geier. (See, e.g., People v. Rutterschmidt,
review granted Dec. 2, 2009, S176213.)

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Parole Revocation Fine
Finally, defendant contends, and the People agree, that a parole revocation
fine of $5,000 was improperly imposed on defendant pursuant to section 1202.45. This
fine was imposed in a minute order and the abstract of judgment, not by the court on the
record at the pronouncement of judgment. We agree with the parties‟ view of the issue.
Because defendant was sentenced to life in prison without parole on both counts, section
1202.45 is inapplicable to his sentence. (People v. Oganesyan (1999) 70
Cal.App.4th 1178, 1181-1186.)
DISPOSITION
The judgment is modified to strike the parole revocation fine imposed upon
defendant. The trial court is instructed to prepare an amended abstract of judgment and
to forward a certified copy to the Department of Corrections and Rehabilitation. As
modified, the judgment is affirmed.
IKOLA, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
O‟LEARY, J.

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