P. v. Jones

Filed 7/31/15 P. v. Jones CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
DARNELL JONES et al.,
Defendants and Appellants.
B254370
(Los Angeles County
Super. Ct. No. TA119584)
APPEAL from a judgment of the Superior Court of Los Angeles County. Eleanor
J. Hunter, Judge. Judgment affirmed as to Torres. Conviction affirmed as to Jones and
remanded for resentencing.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and
Appellant Darnell Jones.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for
Defendant and Appellant Luis Torres.
Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II,
Steven E. Mercer, and Alene M. Games, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________________________

-- 1 of 18 --

2
A jury found gang members Darnell Jones and Luis Torres guilty of first degree
murder. The jury also found true the firearm and gang enhancement allegations. Jones,
a minor at the time of the murder, was sentenced to 50 years to life. Torres, an adult, was
sentenced to 75 years to life. We affirm the judgment as to Torres. We affirm Jones‘s
conviction of murder, reverse his sentence and remand the matter to the trial court for
resentencing after considering factors discussed in recent decisions by the United States
and California Supreme Courts.
FACTS AND PROCEEDINGS BELOW
Michael Owens, not a gang member, lived in the gang territory of the West Side
Piru Bloods who were feuding with the Carver Park Crips. As Owens walked home from
school one afternoon, two cars started following him down the street. Two men jumped
out of the first car and ran up to Owens. Each man fired his gun at Owens. Four of the
shots struck Owens in his back and front shoulder. The shooters got back in the car and
both cars drove away.
An autopsy showed that two .22 caliber bullets struck Owens‘s body and lodged
there. One of these bullets pierced Owens‘s left lung and spine and caused his death.
Owens suffered nonfatal gunshot wounds from the other .22 caliber bullet and from two
―small caliber‖ bullets that were not recovered.
A forensic examination of the .22 caliber bullets recovered from Owens‘s body
showed that they were fired from the same gun. The police recovered seven .22 caliber
cartridge cases from the scene. A forensic examination could not determine whether
any of the cartridges came from the bullets that struck Owens. No cartridges from a
.38 revolver were found but a forensic expert testified that cartridges from a revolver
would not normally be found unless the shooter opens up the cylinder and removes the
empty casings.
A. Testimony Of Witnesses To The Murder
There were numerous witnesses to the shooting. The witnesses gave fairly
consistent descriptions of the two cars as a Monte Carlo and a Buick. All but one witness

-- 2 of 18 --

3
agreed that the shooters exited and returned to the Buick. (One witness testified a shooter
got out of the Monte Carlo.) None of the witnesses identified Jones or Torres as one of
the shooters in photo lineups or at trial. One witness testified that he told police the
picture of Torres in a photographic lineup ―kinda, kinda, kinda favors [Torres].‖ Another
witness testified, however, that Torres is ―way shorter‖ than the shooter he saw.
B. Testimony Of Accomplice Ronald Armstrong
The prosecution‘s chief witness was Ronald Armstrong, the driver of the Monte
Carlo. In a plea bargain, Armstrong pleaded guilty to voluntary manslaughter, assault
with great bodily injury and a gun use enhancement and received a determinate sentence
of 15 years in exchange for his testimony against Jones and Torres.
Armstrong gave the following account of the murder.
He, Jones and Torres were members of the Crips, but belonged to different ―sets.‖
On the afternoon of the murder, Armstrong drove his Monte Carlo to Torres‘s home. He
was armed with a .22 caliber pistol. Jones and another Crip, Phillip Clark, were already
there. A short time later, another member of the gang, Toryian Green (referred to as
Turk) arrived driving a Buick. Turk was armed with a .38 revolver. The previous day
members of the Bloods had shot and wounded Jones and murdered another Carver Crips
member. The five men decided to retaliate. Turk told Armstrong they were going to use
his car. When Armstrong objected Turk told him he needed to be ―putting in work in the
hood‖ and ―‗[y]ou either going to do this or get put off the hood.‘‖ Asked what it meant
to get ―‗put off the hood,‘‖ Armstrong answered it could mean getting beat up by
members of the gang and then ―kicked out of the gang, or it could lead to . . . something
more harmful.‖ Turk gave his .38 revolver to Jones and handed the .22 pistol to Torres.
The group headed out to Piru territory. Clark drove Jones and Torres in the Buick
and Turk and Armstrong followed in the Monte Carlo. On 132nd Street in Piru territory
the gang members saw Owens walking on the sidewalk listening to his IPod. Both cars
stopped and Jones and Torres jumped out of the Buick.

-- 3 of 18 --

4
Jones ran up behind Owens and shot him once with Turk‘s .38 revolver. Owens
fell to the ground. Jones fired his gun three or four times more ―but the shots were
missing.‖ As Owens lay on the ground, Torres fired seven or eight shots at him with the
.22 caliber pistol. While the shooting was going on, Turk and Armstrong remained in the
Monte Carlo. After the shooting Jones and Torres got back into the Buick and the group
drove back to Torres‘s home where they dispersed.
A year and a half after Owens‘s murder the police recorded a telephone
conversation between Armstrong and another member of the Carver Park set in which
Armstrong stated that ―Louie‖ felt ―[n]o remorse for what he did my nigga like.‖ Later,
in a recorded jailhouse conversation, Armstrong admitted to Jones that he told the police
―some shit like [Torres] had no remorse for what he did.‖ The CD recordings and
transcripts of these conversations were admitted into evidence without objection.
Armstrong testified that when he agreed to talk to the police about the Owens
murder he believed he would be charged with the murder and would be facing a sentence
of life without possibility of parole.
C. Corroborating Evidence
Two years after Owens‘s murder the police recorded a telephone conversation
between Jones and a friend, Lond Bass. Only snatches of the conversation were
recorded but it appears from Bass‘s testimony and the transcript that Bass was searching
for information about the Owens murder on the internet and checking it with Jones. In
the conversation, Jones told Bass: ―But that‘s not. . . . He didn‘t look like that Cuz. . . .
[¶] . . . [¶] Nigga didn‘t have no glasses on and motha fucka didn‘t notice nothing.‖
When Bass said the Buick was a Regal, Jones corrected him saying: ―Ay, and it wasn‘t
that either.‖ Near the end of the conversation Jones told Bass, ―Ay, I‘m innocent man.‖
The CD recording and transcript of this conversation were admitted into evidence without
objection.
The People also introduced a CD recording and transcript of a conversation
between Christopher Hicks, a detective investigating the murder, and David Johnson,

-- 4 of 18 --

5
a Crip member serving time in prison for an unrelated crime. To stimulate the
conversation, Hicks falsely told Johnson that Jones had confessed to killing Owens.
When the prosecution sought to introduce the recording of Hicks‘s and Johnson‘s
conversation, Jones objected to the portion in which Hicks told Johnson that Jones had
confessed to the murder. In response to that objection, the parties and the court agreed
that the prosecution could play Hicks‘s statement about Jones‘s confession after the court
admonished the jury that Hicks‘s statement was a ruse to get Johnson talking about the
crime and the jury could not consider Hicks‘s statement as evidence of Jones‘s guilt.
In their conversation, Johnson told Hicks that Jones admitted to him his
involvement in Owens‘s murder. Hicks asked Johnson what Jones said he ―actually did.‖
Johnson responded: ―Um, like, he ran up on the dude and shot him.‖ Johnson also told
Hicks that Jones said ―after he got out and shot the dude, another dude came and shot the
dude.‖ Asked the name of the other dude, Johnson answered: ―The Louie guy.‖ The
People introduced this portion of the conversation without objection from the defense.
On cross-examination, Johnson testified that Hicks told him that if he ―helped‖ his
investigation of the Owens murder, Hicks would help Johnson get a reduced sentence on
the unrelated crime. Seeing an opportunity to get out of prison earlier, Johnson lied to
Hicks. Specifically, Johnson testified that he lied when he said Jones told him that he ran
up on Owens and shot him.
D. Verdicts, Sentences and Appeals
The jury convicted Jones and Torres of first degree murder and found true the
firearm and gang enhancements. The court sentenced Jones, age 17 at the time of the
murder, to a prison term of 50 years to life, consisting of 25 years to life for the murder
and a consecutive sentence of 25 years to life for the firearm enhancement under
section 12022.53, subdivisions (d) and (e)(1).1 Torres was sentenced to a term of
75 years to life consisting of 25 years to life for the murder, doubled under the
1 Statutory references are to the Penal Code.

-- 5 of 18 --

6
Three Strikes law, plus a consecutive term of 25 years to life under the same firearm
enhancement statute.
Defendants filed timely appeals, each joining in the other‘s arguments so far as
beneficial.
DISCUSSION
I. ARMSTRONG’S TESTIMONY WAS SUFFICIENTLY
CORROBORATED.
Jones and Torres argue that the testimony of Armstrong, an accomplice, and
Johnson, a snitch seeking a reduced sentence, ―is so lacking in credibility that it cannot be
relied upon as evidence of guilt beyond a reasonable doubt.‖ We disagree.
Defendants point out that Armstrong had a motive to lie because he received only
a 15-year sentence for his part in the crime in return for his testimony against them.
Armstrong‘s testimony, however, was corroborated by Johnson who told Detective Hicks
that Jones admitted he ―ran up on the dude and shot him‖ and by Jones‘s statements to
Bass in which he corrected the Internet descriptions of the murder in a way that suggested
he was present at the scene instead of home in bed as his mother testified.
Johnson was not an accomplice and his testimony did not require corroboration.
The jury heard evidence that Johnson expected to be rewarded for his cooperation with a
reduced sentence on an unrelated crime. It was up to the jurors to decide whether, in
light of that expectation, Johnson‘s testimony was credible.
II. THE COURT’S ADMONITION TO THE JURY CURED ANY
PREJUDICE TO JONES FROM DETECTIVE HICKS’S FALSE
CLAIM THAT JONES CONFESSED TO THE MURDER.
As we noted above, Detective Hicks falsely told Johnson that Jones had confessed
to the murder and Jones‘s counsel objected to the introduction of that portion of the
conversation only. In response to that objection, the prosecutor and Jones‘s counsel
stipulated that Hicks‘s statement was a ruse designed to induce Johnson to tell what he
knew about the crime. Following the parties‘ stipulation the court admonished the jury:
―Ladies and Gentlemen, sometimes during interviews or whatnot, sometimes officers

-- 6 of 18 --

7
throw out things that aren‘t based on fact. And in this case, as counsel have just
stipulated, the statement was made that apparently Mr. Jones had confessed to the officer
about the crime. That was not the case. So you cannot use that as evidence, thinking,
‗Oh, well, we heard detective Hicks say that he confessed,‘ but that is not the situation
here. You just have to take it as—into consideration in conjunction of the effect on the
listener, meaning Mr. Johnson in that regard. So when you‘re back there, deliberating,
that is not a piece of evidence that you can consider.‖
We need not decide whether Hicks‘s statement was relevant and admissible for the
nonhearsay purpose of showing its effect on Johnson. (Cf. People v. Jablonski (2006)
37 Cal.4th 774, 820.) The trial court‘s admonition to the jury was prompt, unambiguous
and left no doubt in the minds of the jurors that they could not consider Jones‘s
―confession‖ as evidence of his guilt.
III. THE COURT DID NOT ERR IN EXCLUDING EVIDENCE OF
THIRD PARTY CULPABILITY.
Defendants maintain that the court erred in excluding evidence that Robert
Thomas and Phillip Clark were the two men who shot Owens.2 The record does not
support this claim.
Prior to trial, Jones filed an ―Offer of Proof of Third-Party Culpability‖ in which
his attorney declared that Thomas‘s fingerprints were found inside the Buick, that
Thomas matches the description of one of the shooters and that the day after the murder a
witness heard Thomas bragging ―that he killed someone.‖
The court did not expressly rule whether third-party culpability evidence could
be admitted at the trial but defendants argue that the court impliedly excluded such
evidence ―because it repeatedly sustained objections to questions designed to raise the
defense.‖
2 An amended information charged Thomas with the murder. Prior to trial, the
People dismissed the case against Thomas. No charges were filed against Clark.

-- 7 of 18 --

8
Defendants cite no instance in which they attempted to introduce evidence that
Thomas or Clark was one of the shooters. The only evidence that the court excluded
that was even remotely relevant to third-party culpability was Jones‘s attempt to
show that neither Green nor Clark had been arrested in connection with the murder. The
court properly excluded this evidence as irrelevant.
IV. THE FAILURE TO SUBPOENA CLARK TO TESTIFY AT TRIAL
WAS HARMLESS ERROR AND LOCATING HIM LATER DID
NOT ENTITLE DEFENDANTS TO A NEW TRIAL.
Torres and Jones moved for a new trial based on allegedly newly discovered
evidence from Phillip Clark who, they asserted, would impeach Armstrong‘s
testimony that Clark drove defendants to the location where Owens was killed.
The court correctly denied the defendants‘ motion. It was not Clark‘s evidence
that was newly discovered, just his whereabouts; the impeachment would have only
affected some collateral issues, not the critical issue of who fired the shot that killed
Owens; and the defendants did not submit an affidavit from Clark with their motion.
In support of the new trial motion, Torres‘s attorney filed his own declaration
stating that he learned from Brady3 material that Clark told police Armstrong was lying
when he accused Clark of being involved in the murder. In March 2013, two months
before the start of trial, Torres‘s attorney and his investigator interviewed Clark at the
California Rehabilitation Center in Corona. Clark told the investigator, ―‗If Armstrong
stated that I was driving a green Buick Skylark or if I was at the scene of a murder, he is
lying and I will go to court and testify to that.‘‖
Torres‘s attorney did not subpoena Clark to testify at the trial and Clark did not
keep his promise to come to court on his own. After being released from prison, Clark
disappeared and Torres‘s investigator could not find him before the trial ended in
June 2013. In July 2013, the investigator learned that Clark was again in custody in a
California prison. The investigator obtained a written statement from Clark in which he
3 See Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215].

-- 8 of 18 --

9
said that if there was a new trial, ―I will testify to statements of Ronald Armstrong and
the fact that he is lying about the murder in this case.‖ Torres included Clark‘s statement
in the motion for a new trial.
Section 1181, subdivision 8, states that a new trial may be granted: ―When new
evidence is discovered material to the defendant, and which he could not, with reasonable
diligence, have discovered and produced at the trial. When a motion for a new trial is
made upon the ground of newly discovered evidence, the defendant must produce at the
hearing, in support thereof, the affidavits of the witnesses by whom such evidence is
expected to be given, and if time is required by the defendant to procure such affidavits,
the court may postpone the hearing of the motion for such length of time as, under all
circumstances of the case, may seem reasonable.‖
The impeachment evidence that Torres expected Clark to provide was not new.
Torres was aware two months prior to trial that Clark denied he was the driver of the
Buick and denied that he was at the scene of the murder. Furthermore, it is highly
doubtful that Clark‘s testimony impeaching Armstrong‘s assertion about who was driving
the Buick would lead to the defendants‘ acquittal of the murder charges. Clark could not
impeach Armstrong‘s testimony that Jones and Torres shot Owens because Clark claimed
he wasn‘t there. Finally, Clark‘s written statement submitted in support of the motion
was not in the form of an affidavit (or declaration) as required by section 1181,
subdivision 8.
Torres argues in the alternative that his counsel provided ineffective assistance
because he failed to subpoena Clark in March 2013 when he had the chance. Torres‘s
counsel admitted at the new trial hearing that he made a mistake. ―I should have put a
subpoena on him,‖ he said.
We conclude, however, that counsel‘s mistake was harmless. As the trial court
observed, ―Mr. Clark had some serious Fifth Amendment issues [and] I would be greatly
surprised if he had [testified].‖ Moreover, as we explained above, it is not reasonably

-- 9 of 18 --

10
probable that Clark‘s impeaching testimony would have gained Torres a more favorable
result.
V. THE PEOPLE PLEADED AND PROVED 25 YEARS TO LIFE GUN
ENHANCEMENTS AS TO TORRES AND JONES.
Defendants argue that the court erred in imposing gun use enhancements of
25 years to life under section 12022.53, subdivisions (d) and (e)(1) because
the People did not satisfy the pleading and proof requirements of section 12022.53,
subdivisions (e)(1) and (j). We disagree.
A. Statutory Background.
Section 12022.53 imposes progressive sentence enhancements for gun use in
the commission of serious felonies including murder (subdivision (a)(1)).
A person who uses a firearm in the commission of a felony listed in
subdivision (a) ―shall be punished by an additional and consecutive term of imprisonment
in the state prison for 10 years.‖ (§ 12022.53, subd. (b).) A person who personally and
intentionally discharges a firearm in the commission of a felony listed in subdivision (a)
―shall be punished by an additional and consecutive term of imprisonment in the state
prison for 20 years.‖ (§ 12022.53, subd. (c).) And, a person who personally and
intentionally discharges a firearm in the commission of a felony listed in subdivision (a)
and ―proximately causes great bodily injury . . . or death, to any person other than an
accomplice, shall be punished by an additional and consecutive term of imprisonment in
the state prison for 25 years to life.‖ (§ 12022.53, subd. (d).)
Subdivision (e)(1) of section 12022.53 is a gang-related firearm provision.
It applies to any person who is a principal in a crime listed in subdivision (a) if it is
―pled and proved‖ that the person committed the crime for the benefit of a gang under
section 186.22, subdivision (b) and that ―[a]ny principal in the offense committed any
act specified in subdivision (b), (c), or (d) [of section 12022.53].‖ Accordingly, the
enhancement applies to a person who is the direct perpetrator of the crime as well as
one who aids and abets another in the commission of the crime. (People v. Yang (2010)
189 Cal.App.4th 148, 154.)

-- 10 of 18 --

11
Finally, subdivision (j) of the statute states: ―For the penalties in this section to
apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged
in the accusatory pleading and either admitted by the defendant in open court or found to
be true by the trier of fact.‖
B. Procedural Background
The information originally alleged a gang enhancement as to both defendants and
a gun enhancement under section 12022.53, subdivision (d) as to Torres only. The first
paragraph of the gun enhancement allegation read: ―It is further alleged that said
defendant(s) Luis Torres personally and intentionally discharged a firearm, a handgun,
which caused great bodily injury and death to Michael Owens within the meaning of . . .
[s]ection 12022.53(d).‖ The second paragraph read: ―It is further alleged that a principal
personally and intentionally discharged a firearm, a handgun, which proximately
caused great bodily injury and death to Michael Owens within the meaning of . . .
section 12022.53(d) and (e)(1).‖ The fifth paragraph alleged that the murder ―was
committed for the benefit of, at the direction of, and in association with a criminal street
gang with the specific intent to promote, further and assist in criminal conduct by gang
members.‖
Prior to the commencement of trial the prosecutor announced that the People
would be proceeding under section 12022.53, subdivision (e)(1), the gang-related
gun enhancement, ―as to both defendants and will not be proceeding under
[section] 12022.53(d) as to Mr. Torres.‖ Accordingly, the trial court amended the
information by striking the allegation in the second paragraph that Torres ―personally and
intentionally‖ discharged a firearm causing death within the meaning of subdivision (d)
of section 12022.53. As amended, the allegation read in relevant part: ―It is further
alleged that said defendant(s) Luis Torres‘s personally and intentionally principal
discharged a firearm, a handgun, which caused great bodily injury and death to Michael
Owens within the meaning of . . . [s]ection 12022.53(d) (e)(1).‖ (Indicated deletions in
original and block capitals omitted.) The court struck the second paragraph of the gun

-- 11 of 18 --

12
enhancement allegation entirely. The gang enhancement allegation under section 186.22,
subdivision (b) remained in the information as originally pleaded.
The court instructed the jury that in order to prove the defendants guilty of murder
―the People must prove that: [¶] 1. The defendant committed an act that caused the death
of another person; and [¶] 2. When the defendant acted, he had a state of mind called
malice aforethought.‖ (Block capitals omitted.) It also instructed that a person may be
guilty of a crime either by directly committing it or aiding and abetting the perpetrator.
In addition, the court instructed the jury on the elements of a gang enhancement under
section 186.22, subdivision (b). As to the firearm enhancement, the court instructed the
jury: ―If you find the defendant guilty of the crime charged and you find that the
defendant committed that crime for the benefit of [a criminal street gang] you must then
decide whether the People have proved the additional allegation that one of the principals
personally and intentionally discharged a firearm during that crime and caused death.
[¶] To prove this allegation, the People must prove that: [¶] 1. Someone who was a
principal in the crime personally discharged a firearm during the commission of the
crime; [¶] 2. That person intended to discharge the firearm; and [¶] 3. That person‘s act
caused the death of another person. [¶] A person is a principal in a crime if he directly
commits the crime or if he aids and abets someone else who commits the crime.‖ (Block
capitals omitted.)
The jury found each defendant guilty of first degree murder. It also found true the
allegation that ―a principal discharged a firearm, a handgun, which caused death to
Michael Owens‖ and that this crime ―was committed for the benefit of . . . a criminal
street gang.‖ (Block capitals omitted.)
C. The Evidence Is Sufficient To Support A Gun Enhancement
Under Section 12022.53, Subdivision (e)(1) As To Both
Defendants.
The People‘s evidence established that Owens‘s murder was committed for the
benefit of the Carver Park Crips. The defendants do not challenge that finding. The
evidence was also sufficient to establish that Torres personally and intentionally

-- 12 of 18 --

13
discharged a firearm proximately causing the death of Owens and that Jones was an
aider and abettor in that murder. The defendants do not dispute the sufficiency of that
evidence either. Thus, the People proved the two elements of a gun enhancement under
section 12022.53, subdivisions (d) and (e)(1): Jones and Torres committed the murder
for the benefit of their gang under subdivision (b) of section 186.22 and a principal,
Torres, personally and intentionally discharged a firearm proximately causing death as
provided in section 12022.53, subdivision (d).
Defendants contend, however, that the gun use enhancement should be reversed
because, regardless of the proof, the amended information failed to plead that the offense
was committed for the benefit of a criminal street gang (subdivision (e)(1)(A)) and that a
―principal in the offense committed [an] act specified in subdivision (b), (c), or (d)‖
(subdivision (e)(1)(B)). They maintain that where, as here, a statute requires that an
enhancement be pleaded it must be specifically pleaded in the information or the
enhancement cannot be imposed even though the evidence supports it. Reversal, they
argue, is automatic citing People v. Mancebo (2002) 27 Cal.4th 735, 743; People v.
Botello (2010) 183 Cal.App.4th 1014, 1028-1029; and People v. Arias (2010)
182 Cal.App.4th 1009, 1016.)4
The circumstances in this case are significantly different from the circumstances
faced by the defendants in the cases cited above. In each of the cited cases the
enhancements were sprung on the defendants after their trials were over and the verdicts
were in. (People v. Mancebo, supra, 27 Cal.4th at p. 743 [at sentencing]; People v.
Botello, supra, 183 Cal.App.4th at p. 1022 [on appeal]; People v. Arias, supra,
182 Cal.App.4th at p. 1017 [at sentencing].) Thus, the defendants in those cases had no
4 The court in People v. Mancebo, supra, did not hold that reversal is automatic in
every case in which the prosecution fails to meet the precise statutory pleading
requirements for an enhancement. The court limited its holding to the situation in which
the People seek to impose the enhancement for the first time at sentencing. (27 Cal.4th
at p. 745 & fn. 5.) In any event, we need not decide the standard of prejudice in this case
because, as we explain, the court did not err in imposing the enhancements.

-- 13 of 18 --

14
opportunity to prepare a defense to the enhancement or engage in an informed plea
bargain. (People v. Mancebo, supra, 27 Cal.4th at pp. 750, 752.)
In contrast, this case did not involve a post-conviction attempt to apply an
unpleaded sentence enhancement. Defendants were on notice prior to trial that the
prosecution was seeking a 25-years-to-life gun enhancement under section 12022.53,
subdivisions (d) and (e)(1). The amended information alleged in one paragraph that
Torres and Jones murdered Owens, alleged in another paragraph that the defendants
committed the offense for the benefit of a criminal street gang, and alleged in a third
paragraph that a principal discharged a firearm causing the death of Michael Owens
―within the meaning of . . . section 12022.53(e)(1).‖ It is true that the gun enhancement
allegation did not repeat the language of the separate gang allegation nor did it
specifically refer to subdivision (d) or allege that a principal ―personally and
intentionally‖ discharged the firearm that caused Owens‘s death. Nevertheless,
defendants could easily connect the dots and understand that if the People proved the
separately pleaded gang enhancement and proved that either Torres or Jones used a gun
in murdering Owens (implying personal and intentional use) they would be liable for the
25-years-to-life gun enhancement under section 12022.53, subdivisions (d) and (e)(1).
Defendants further maintain that the enhancements must be reversed because
the verdict form does not contain the findings necessary under section 12022.53,
subdivision (d) and (e)(1). It does not contain a finding that the crime was committed
for the benefit of a criminal street gang and it does not contain a finding that a principal
―personally and intentionally‖ discharged a firearm which ―proximately‖ caused Owens‘s
death.
These shortcomings did not deprive defendants of a fair trial, however. In its
instructions the court informed the jury that if it found the defendants guilty of murder
and if it found the murder was for the benefit of a criminal street gang then it had to
decide ―whether the People have proved the additional allegation that one of the
principals personally and intentionally discharged a firearm during that crime and

-- 14 of 18 --

15
caused death.‖ The court further instructed that the prosecution had to prove
―(1) Someone who was a principal in the crime personally discharged a firearm during
the commission of the crime; [¶] (2) That person intended to discharge the firearm; and
[¶] (3) That person‘s act caused the death of another person.‖ (Block capitals omitted.)
There is no evidence in the record suggesting that the jury was confused by any perceived
discrepancy between the instructions and the verdict form and we assume that the jury
understood the instructions and followed them. (People v. Chavez (2000) 84 Cal.App.4th
25, 31.)
VI. THE TRIAL COURT MUST RECONSIDER JONES’S
50-YEARS-TO-LIFE SENTENCE.
Jones, who at most was guilty of murder as an aider and abettor, was sentenced to
a term of 50 years to life for a crime he committed when he was 17 years old. Under the
sentence imposed, Jones would be 71 years old before becoming eligible for parole.
Jones argues his sentence constitutes cruel or unusual punishment or both in violation of
the California and Unites States constitutions. For the reasons we explain below, we
conclude Jones‘s sentence must be reversed and his case remanded for resentencing
consistent with recent high court decisions.
In response to decisions of the United States and California Supreme Courts
concerning sentences of extreme length imposed on youthful offenders,5 the California
Legislature enacted Senate Bill No. 260 (2013–2014 Reg. Sess.), creating a mechanism
that allows minors sentenced to lengthy determinate terms or an indeterminate life term
to secure their release on parole after serving a prescribed term of confinement if they can
demonstrate ―growth and maturity.‖ (Stats. 2013, ch. 312, § 1.) As relevant to Jones,
section 3051, subdivision (b)(3) provides: ―A person who was convicted of a controlling
offense that was committed before the person had attained 18 years of age and for which
the sentence is a life term of 25 years to life shall be eligible for release on parole by the
5 See Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2011]; Miller v. Alabama
(2012) 567 U.S. ___ [132 S.Ct. 2455]; People v. Gutierrez (2014) 58 Cal.4th 1354.

-- 15 of 18 --

16
board during his or her 25th year of incarceration at a youth offender parole hearing . . . .‖
(§ 3051, subd. (b)(3).)
The Attorney General argues that the enactment of section 3051, which will afford
Jones a parole hearing when he is age 46, cures any constitutional issue concerning his
50-years-to-life sentence. Jones responds that a different Legislature could repeal
section 3051 before it is his turn for a parole hearing in 2039 and, in any event, providing
him with a release mechanism after he serves 25 years in prison begs the question
whether, given his age, he should have been sentenced to a term of 50 years to life in the
first place. Our high court‘s decision in People v. Gutierrez, supports Jones‘s argument.
(58 Cal.4th at pp. 1386-1387.)
Relying on Miller v. Alabama, supra, the court in Gutierrez observed:
―Miller repeatedly made clear that the sentencing authority must . . . consider[ ] how
children are different and how those differences counsel against a sentence of life without
parole ‗before imposing a particular penalty.‘‖ (People v. Gutierrez, supra, 58 Cal.4th
at p. 1387, quoting Miller v. Alabama, supra, 567 U.S. at p. ___.) Accordingly, the court
directed sentencing judges, in exercising their discretion, to consider at the outset of the
hearing, ―all relevant evidence bearing on the ‗distinctive attributes of youth‘ discussed
in Miller and how those attributes ‗diminish the penological justifications for imposing
the harshest sentences on juvenile offenders‘‖ before imposing a life without parole
sentence. (Id. at p. 1390.) Relevant evidence, the court held, may include (1) ―a juvenile
offender‘s ‗chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences;‘‖ (2) ―any evidence or
other information in the record regarding ‗the family and home environment that
surrounds [the juvenile]—and from which he cannot usually extricate himself—no matter
how brutal or dysfunctional;‘‖ (3) ―any evidence or other information in the record
regarding ‗the circumstances of the homicide offense, including the extent of [the
juvenile defendant‘s] participation in the conduct and the way familial and peer pressures
may have affected him;‘‖ (4) ―any evidence or other information in the record as to

-- 16 of 18 --

17
whether the offender ‗might have been charged and convicted of a lesser offense if not
for incompetencies associated with youth;‘‖ and (5) ―any evidence or other information
in the record bearing on ‗the possibility of rehabilitation.‘‖ (Id. at p. 1388-1389.)
We believe the same rationale applies to cases such as Jones‘s that fall within the
ambit of 50 years to life.6 Under Miller and Gutierrez it is the responsibility of the
sentencing court to consider the differences between juveniles and adults at the time of
imposing a sentence that is the functional equivalent of life without parole. The
opportunity for a parole hearing 25 years later based on the inmate‘s conduct during an
extended period of incarceration should not relieve the trial court of its constitutional
obligation to consider the factors of youth and maturity when pronouncing judgment.
(Gutierrez, supra, 58 Cal.4th at pp. 1386-1387.) Indeed, as Jones points out, because the
Legislature is free to repeal section 3051, there is no guarantee the promise of a parole
hearing will be fulfilled when Jones will be eligible to try to benefit from it.
At the sentencing hearing, the court remarked that it was imposing the 50 years to
life sentence on Jones ―even though he‘s young.‖ Nothing in the record shows that the
court considered any of the factors described in Miller and Gutierrez. Thus, while we do
not hold that Jones‘s sentence of 50 years to life is categorically unconstitutional, we
believe that the proper course is to reverse the sentence and remand the case to the trial
court for resentencing after weighing the factors in Miller and Gutierrez discussed above.
6 We note that a study of how inmates age once they are behind bars shows
that ―[t]he combination of physical and mental declines makes aging inmates, on
the average, 10 to 11.5 years older physiologically than their nonincarcerated age peers.
(Doughty, 1999; Southern Legislative Conference, 1998). This is why most recent
studies consider either age 50 to 55 as the onset of old age for inmates. [Citations.]
For our purposes, then, an elderly male inmate is defined as age 50+.‖ (Rikard &
Rosenberg, Aging Inmates: A Convergence of Trends in the American Criminal
Justice System (July 2007) Journal of Correctional Health Care, 13(3):150-162
[http://jcx.sagepub.com/content/13/3/150].)‖

-- 17 of 18 --

18
DISPOSITION
The judgment as to Torres is affirmed. As to Jones, the conviction of murder is
affirmed and the matter is remanded for resentencing in accordance with law.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
JOHNSON, J.

-- 18 of 18 --