P. v. Gallardo

Filed 11/17/16 P. v. Gallardo CA2/1
Prior opinion vacated
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
GIOVANNI GALLARDO et al.,
Defendants and Appellants.
B254090
(Los Angeles County
Super. Ct. No. TA120456)
In re GIOVANNI GALLARDO,
On Habeas Corpus.
B261395
(Los Angeles County
Super. Ct. No. TA120456)
In re CYNTHIA ALVAREZ,
On Habeas Corpus.
B261448
(Los Angeles County
Super. Ct. No. TA120456)
APPEALS from judgments of the Superior Court of Los Angeles County. Richard
R. Ocampo, Judge. Affirmed as modified.
ORIGINAL PROCEEDINGS; petitions for writ of habeas corpus. Richard R.
Ocampo, Judge. Petitions denied.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant,
Appellant and Petitioner Giovanni Gallardo.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant,
Appellant and Petitioner Cynthia Alvarez.

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Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and David
E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
________________________________
Juries in separate trials convicted Cynthia Alvarez and Giovanni Gallardo of
two counts of first degree murder with special circumstances and found true allegations
that each personally used a deadly weapon. (Pen. Code, §§ 187, subd. (a), 190.2,
subd. (a)(3) & (15), 12022, subd. (b)(1).)1 The court sentenced Gallardo to life without
the possibility of parole. The court sentenced Alvarez to two consecutive terms of
25 years to life, plus one consecutive year for the weapon enhancement for a total term
of 51 years to life. They each appealed.
Alvarez and Gallardo each also filed a petition for a writ of habeas corpus,
asserting that they were deprived of the effective assistance of counsel. We issued an
order to show cause as to each petition.
On March 29, 2016, we issued an opinion, which we modified on April 27, 2016,
disposing of the appeals and the habeas corpus petitions. We rejected Alvarez’s and
Gallardo’s arguments that their sentences constituted cruel and unusual punishments
under the Eighth Amendment, but observed that issues concerning lengthy sentences
imposed on juveniles were pending before the California Supreme Court. We agreed
with Alvarez that the special circumstances allegations were improper in her case, and
struck the true findings thereon. We agreed with Gallardo that the imposition of a parole
revocation fine was unauthorized and struck that portion of the judgment. In all other
respects, we affirmed the judgments. We denied the writ petitions.
1 All subsequent statutory references are to the Penal Code unless otherwise
indicated.

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On July 27, 2016, the California Supreme Court granted Alvarez’s and Gallardo’s
petitions for review and transferred the matters to us for reconsideration of Alvarez’s
case in light of People v. Franklin (2016) 63 Cal.4th 261 (Franklin), and reconsideration
of Gallardo’s case in light of People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez).
Alvarez and the Attorney General thereafter filed supplemental briefs pursuant to
rule 8.200(b) of the California Rules of Court, which we have considered.2
We now vacate our prior opinion and, in light of Franklin, direct the trial court
to determine whether Alvarez was afforded sufficient opportunity to make a record of
information relevant to an eventual youth offender parole hearing to be held under
section 3051. (See Franklin, supra, 63 Cal.4th at p. 284.) If the trial court determines
that the defendant did not have that opportunity, the court shall hold a hearing for that
purpose, as provided in Franklin. We have reconsidered Gallardo’s case in light of
Gutierrez, and conclude that Gutierrez does not require reversal or a further sentencing
hearing.
FACTUAL SUMMARY
A. Background
In early October 2011, Alvarez, age 15, lived in Compton with her mother,
Gloria Villalta, and her stepfather, Jose Lara. Gallardo was her 16-year-old boyfriend.
On Friday, October 14, 2011, Lara’s employer, Blanca Serrano, was concerned
because Lara failed to call regarding the weekend work schedule. Worried because
she had not heard from him, on Monday, October 17, 2011, Serrano drove to Lara’s
home. When no one answered his door, Serrano inquired of Lara’s neighbors. One
neighbor told Serrano that Alvarez had told him Villalta was in the hospital and that Lara
was with Villalta. The neighbor also told Serrano that she had seen Alvarez throwing
2 On September 6, 2016, Alvarez filed a second petition for writ of habeas corpus,
which we assigned case No. B277361. We deny that petition by separate order.

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pictures and tools in the garbage. Another neighbor told Serrano that he had seen Lara’s
truck behind a Home Depot.
When Serrano found Lara’s truck at a nearby Home Depot with the windows open
she called the police. Serrano also called Villalta’s oldest daughter, Dayana Villalta, but
she had no information about her mother and Lara’s whereabouts.
On Tuesday, October 18, a Los Angeles County deputy sheriff met Dayana at
Alvarez’s residence. The house appeared to have been ransacked, although there was
no sign of forced entry. Clothes were strewn about, and the home smelled of rotting
food. Neighbors reported that they had not seen Villalta or Lara for several days.
The deputy found a notebook in the living room with the following phrases written
on separate pages in handwriting large enough to be visible from across a room: “I am
to[o] scared[.] I cannot do it. Me what?” “[D]o you think you can kill her in bed?”
“What about [i]f she going to her bed can you kill her?” “She is setting down.” “You do
it.” The deputy also found a permit dated October 17, 2011, authorizing Gallardo to
leave school early for medical reasons.
Meanwhile, on October 15, other deputies found a female body partially-buried
in the yard of an abandoned house in Norwalk. The woman’s face was covered with a
towel secured by duct tape. Her legs were bound above her ankles by duct tape and her
wrists were bound by a bungee cord and masking tape. Nearby, deputies found a pair
of gardening gloves. An autopsy revealed signs of strangulation and blunt force trauma.
The body was eventually identified as Villalta’s.
On Wednesday, October 19, 2011, sheriff’s deputies interviewed Alvarez and
Gallardo.

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B. Alvarez’s Police Interview3
Alvarez initially told the deputies a story that she later admitted Gallardo and
she had fabricated together a day earlier. She said that on the preceding Wednesday
(October 12), Lara told her that Villalta went to the hospital for eye surgery and did not
want any visitors. On the following Saturday or Sunday, Lara pulled a gun on Alvarez
and Gallardo and forced them to throw out Villalta’s possessions, including her clothes
and pictures. Alvarez said she last saw Lara on Monday, October 10. She told the
deputies that she was worried about her mother and wanted to find out what happened
to her.
After giving Alvarez the Miranda4 warnings, the deputies showed her the
notebook found at her home and pointed out the pages with the phrases, “I am to[o]
scared[.] I cannot do it. Me what?” and “[D]o you think you can kill her in bed?”
Alvarez admitted that the notebook was hers, and then told the deputies the following
information.
In the two weeks before the murders, Alvarez and Gallardo had talked about
killing Villalta and Lara. Gallardo first raised the idea after Alvarez told him that Lara
had raped her. Alvarez said she “liked the idea” of killing them, “but at the same time,
[she] didn’t.”
On the day of the murders, Villalta was cooking in the kitchen when Gallardo
arrived at the house. Gallardo said that they should kill Villalta and Lara, but Alvarez
said, “no.” At around 7:30 or 7:45 in the evening, Alvarez went outside while Gallardo
killed Villalta “using alcohol.” When Gallardo called Alvarez back inside, she saw
Villalta’s body on the floor in a bedroom. Gallardo then tied the body with duct tape.
3 Alvarez’s statements to deputies were admitted at Alvarez’s trial only. And
an audio-video recording of the interview was played for the jury.
4 Miranda v. Arizona (1966) 384 U.S. 436.

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When Lara arrived home between 8:00 and 8:30 that evening, he came in the
house, but then walked outside to talk to a neighbor. Gallardo hid behind a door. When
Lara came back inside, Gallardo hit him twice in the head with a baseball bat. While
Lara was unconscious, Alvarez hit him seven times on his legs with the bat. Gallardo
told Alvarez to get the alcohol, which Gallardo put in Lara’s mouth and nose. When Lara
appeared to regain consciousness, Gallardo pulled a knife from his pocket and stabbed
Lara repeatedly, killing Lara. Gallardo then dragged Lara’s body next to Villalta’s and
wrapped it in a blanket.
That night, Alvarez and Gallardo “drag[ged] the bodies” into Villalta’s Jeep. They
drove to a vacant lot about four blocks away, dug a hole, dragged Lara’s body into it,
and covered it with dirt. They could not fit Villalta’s body into the same hole. Sometime
later, they buried Villalta’s body in the yard of an abandoned house.
Alvarez and Gallardo stripped Lara’s truck of some parts, sold the parts, and then
left the truck at a Home Depot. Gallardo got rid of the bat and the knife. Later, they
abandoned Villalta’s Jeep.
Near the end of the interview, the following colloquy took place:
“[Deputy] Bernstein: [Gallardo] brings it up, he says this guy’s hurt you, I love
you, and I wanna fuck this guy up that hurt somebody I love.
“Alvarez: Yeah.
“[Deputy] Bernstein: And I wanna kill this person.
“Alvarez: Yeah.
“[Deputy] Bernstein: And at some point you said, ‘Yeah, let’s do it.’
“Alvarez: Uh-huh.
“[Deputy] Bernstein: And you had all these weeks to think about it, right?
“Alvarez: Yeah.
“[Deputy] Bernstein: And you had all these weeks to tell somebody or to run
away from him or change—
“Alvarez: No, he would still find me.” (Capitalization omitted.)

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C. Gallardo’s Police Interview5
After waiving his Miranda rights, Gallardo told the deputies that Lara had taken
Villalta to the hospital and later threatened Gallardo with a gun. A deputy interrupted
Gallardo and told him they initially heard the same story from Alvarez, but then “got the
real story” and that deputies had “found the spot” where Gallardo buried Lara. Gallardo
said, “Oh damn.” He then told the deputies the following.
Gallardo was angry at Villalta and Lara. Lara had raped Alvarez, disrespected
Gallardo’s family, threatened him, and called “the cops” on him. Villalta had yelled at
Gallardo’s father and treated Alvarez poorly. So Gallardo “got revenge” and “killed
them both.”
Alvarez and Gallardo had talked about killing Villalta and Lara for a couple of
weeks. On the day of the murders, Gallardo arrived at Alvarez’s home at about 4:30
in the afternoon. He brought a backpack containing a bottle of rubbing alcohol, a towel,
an aluminum baseball bat, and a Halloween mask. Villalta was cleaning and making
food. When Villalta went to the restroom, Alvarez told him, “ ‘Oh, go, go quick.’ ”
Gallardo soaked the towel with the rubbing alcohol, walked up behind Villalta, and put
the towel over her mouth. Villalta fell to the ground and Gallardo choked her with his
hands until she was dead.
Gallardo bound Villalta’s arms and legs with duct tape. He and Alvarez
then dragged Villalta’s body to Lara’s room. At some point, Gallardo taped the
alcohol-soaked towel to Villalta’s face and took a gold bracelet from her arm. They
looked for and found Alvarez’s iPod, which Villalta had previously taken from Alvarez.
While Alvarez and Gallardo waited for Lara to come home, they watched
television and talked.
5 Gallardo’s statements to deputies were admitted at Gallardo’s trial only.
An audio-video recording of the interview was played for the jury.

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When Lara arrived home around 9:00 p.m., Gallardo was waiting in Lara’s room
with a knife and the baseball bat in his hands. Alvarez was lying on the couch in the
living room. When Lara walked in, Gallardo hit Lara in the face twice with the bat.
He then stomped on Lara’s face and choked him. After he knocked him unconscious,
Gallardo “wrapped him up with tape.”
Lara regained consciousness and struggled with Gallardo. Alvarez then hit Lara
with the bat. Gallardo asked Alvarez to give him a knife that was on a table in the living
room. Alvarez got the knife and handed it to Gallardo. He then stabbed Lara in the back
and chest three or four times. After Lara died, Alvarez and Gallardo wrapped his body in
a blanket.
At around 1:00 a.m., Alvarez and Gallardo put both bodies and a shovel in the
back of Villalta’s Jeep and drove to a field. They dug a hole and buried Lara. They
returned to Alvarez’s home and slept. Villalta’s body remained in the Jeep parked on a
nearby street.
The next evening, Alvarez and Gallardo drove to an abandoned house where they
buried Villalta’s body in the yard.
Two days later, they drove Lara’s truck to a location away from the home and
removed two batteries and the alternator. They sold the items for $36, which they used to
buy gas for the Jeep.
Alvarez and Gallardo found gold jewelry at Alvarez’s home, which they sold for
$440. They spent the money to buy food and other items for a Halloween party they
planned for their friends.
At some point, Lara’s employer came to Alvarez’s house and knocked on the door
while they were inside. Later, Gallardo threw the baseball bat into the yard and put the
knife in a trash can. They drove the Jeep to a nearby street and abandoned it. As they
walked away, they threw the keys over a fence into the backyard of a residence.

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D. Additional Prosecution Evidence
After the interviews, Gallardo directed deputies to places associated with the
murders. He showed them: The spot where he threw away the shovel he used to dig the
graves (no shovel was recovered); Villalta’s Jeep, which was still parked where they
abandoned it; the fence over which they had thrown the Jeep’s keys (the keys were
retrieved from the property’s owner); Alvarez’s home, where the murders took place; the
spot where they had parked the Jeep with Villalta’s body inside; the area where Gallardo
discarded the baseball bat (deputies recovered the bat from that spot); the Home Depot
location where they abandoned Lara’s truck (by then, deputies had impounded the truck);
the field where they buried Lara; and the yard of the abandoned house where they had
buried Villalta.
While Alvarez and Gallardo were at the Norwalk site, they met with the detective
who had been overseeing the investigation there. Gallardo told the detective that he and
Alvarez left a blanket in a shed on the property.6 They had used the blanket to keep the
victims’ blood from staining the Jeep. The detective found and recovered the blanket
from the shed. The blanket matched a set that was in Villalta’s bedroom. The detective
asked Gallardo about the gloves found near the body. Gallardo said he used a pair of
gloves and discarded them at the scene.
On the day Alvarez and Gallardo were interviewed, homicide detectives searched
Alvarez’s house. They found blood stains on the floor, on a couch, and on a mop.
In a nearby field they found a baseball bat with blood on it. They also found a backpack,
empty jewelry boxes, a Halloween mask, and Halloween party supplies.
Detectives examined Lara’s truck and found that the battery and alternator had
been removed. They also found sales receipts for two batteries and an alternator.
6 Although a deputy testified at each defendant’s trial about the car ride with
Gallardo, including the places they went and the evidence they found, Gallardo’s
statements during the ride and at the Norwalk site were not introduced at Alvarez’s trial.

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E. Alvarez’s Defense Evidence
1. Alvarez’s testimony
Alvarez testified at trial as follows. Prior to the murders, Gallardo had talked
about killing Villalta and Lara, but Alvarez did not think “he was that type of person.”
On the day of the murders, Gallardo arrived at Alvarez’s house wearing a black mask and
a backpack. She met him outside while taking out the trash and brought him a beer.
Gallardo told Alvarez he “was coming to kill [Alvarez’s] parents.” She told him, “no,”
and went back inside. Gallardo stayed outside for some time. While Villalta was in her
bedroom, Alvarez invited Gallardo to come in.
Gallardo hid in a storage room, adjacent to the living room, when Villalta returned
to the kitchen. Alvarez sat on a couch, where she could see Gallardo and write the notes
the Sheriff’s deputies later found. Gallardo made motions and hand gestures to her,
which she understood meant that he was going to kill Villalta. Alvarez wrote her notes
to communicate with Gallardo without Villalta hearing them.
Alvarez wrote, “She is setting down” to tell Gallardo that Villalta was sitting down
in the kitchen. She wrote, “I am to[o] scared[.] I cannot do it. Me what?” because she
was scared of Gallardo. When she wrote, “If she going to her bed can you kill her,” she
meant, “I’m not going to do it, because I didn’t want to see what he was going to do to
her” and “I didn’t want to see it in front of my face because I might have flashbacks.”
On direct examination, Alvarez testified that she wrote, “[D]o you think you can kill her
in bed,” for the same reason. On cross-examination, she agreed with the prosecutor’s
suggestion that she wrote it because she thought it would be easier to kill Villalta while
Villalta was sleeping.
Alvarez wrote, “You do it” in response to Gallardo’s gestures indicating that she
should “do it.” She meant, “I’m not gonna be involved in anything.”7
7 The notebook also included a handwritten note stating: “Live or Die,” in
writing much smaller than the notes used to communicate with Gallardo. Alvarez

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When Villalta went to the bathroom, Alvarez made a gesture with her hand to
signal Gallardo “to go.” While Gallardo walked down the hall toward Villalta, she left
the house.
Gallardo called Alvarez back inside where she saw Villalta’s body on the floor.
He wrapped Villalta’s face in a towel and taped her hands and feet. Alvarez did not
touch Villalta or “take any action to kill her.”
When Lara arrived home, he used the restroom, and then walked outside to talk
to neighbors. Alvarez told Gallardo, “I just can’t do it.” Gallardo told her to go to the
couch; she did, and pretended to sleep. When Lara returned, Gallardo hit him twice
in the head with a bat. Lara fell to the floor, and Gallardo got on top of him. When
Gallardo called Alvarez for help, she used the bat to hit Lara on his lower body about
seven times. To prevent Lara from defending himself, Alvarez kicked away from Lara a
folding knife that had fallen out of Lara’s pocket.
Gallardo told Alvarez to get a knife. She retrieved a knife from the kitchen and
gave it to Gallardo. Alvarez did not know what he was going to do with it. Gallardo
stabbed Lara with the knife at least seven, and possibly as many as eleven, times.
After Lara died, Gallardo bound Lara’s arms behind his back, wrapped the body
in a blanket, and put both bodies in the Jeep. With Alvarez in the passenger seat,
Gallardo drove to the spot where they buried Lara. Gallardo dug the hole and lifted and
dragged Lara’s body to the grave; Alvarez merely put dirt on top of the body. They
drove back to Alvarez’s house, where they left Villalta’s body in the Jeep overnight.
They then cleaned and mopped the house.
The next day, Alvarez and Gallardo went to school, but did not attend classes.
That night, they drove the Jeep looking for a place to bury Villalta. They went to a park,
but the ground was too hard and they returned to Alvarez’s home. The next day, they
testified that she wrote this note “[a] long time ago,” when she was thinking about killing
herself.

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again went to school without attending classes. In the evening, Alvarez and Gallardo
drove to an abandoned house in Norwalk and dug a hole in the yard where they dumped
Villalta’s body. Alvarez helped cover Villalta’s body with dirt, but it was too dark to see
whether they covered it completely. At Gallardo’s request, Alvarez removed a blanket
from the Jeep and left it inside a shed on the property.
The next day, Alvarez threw away items that had blood on them, and Gallardo
threw away Villalta’s clothes and pictures. She told a neighbor that Villalta was in the
hospital.
Alvarez testified that she acted out of fear of Gallardo based on his history of
aggression and violence toward her. Gallardo, she said, would hit her, choke her, pull
her hair, and call her names. About a month before the killings, Gallardo put a knife to
Alvarez’s throat during an argument. On another occasion, Gallardo brought a gun to
school and put it to her head. Gallardo once made Alvarez swallow some pills, which
made her feel “weird”; he then had sex with her and, because of the drugs, she “couldn’t
do anything about it.”
Alvarez also testified about how she had been abused by Villalta and Lara.
Villalta hit and yelled at her, and rarely let her be with friends. Lara touched her where
she “shouldn’t be touch[ed]” on more than 30 occasions and, in 2007 or 2008, raped her.
Alvarez either failed to report the sexual abuse to authorities or, when she did, she
obeyed Villalta’s demand that she deny the incidents. She ran away from home several
times, but each time Lara would find her.
Alvarez testified that despite the conduct of her parents, she did not want them
killed, did not want Gallardo to kill them, and did not want to help or encourage Gallardo
to kill them.
2. Other Alvarez Defense Evidence
Alvarez presented numerous witnesses who testified as to her character for being
quiet, nice, polite, and shy, corroborated her testimony about Villalta’s and Lara’s
physical and sexual abuse, and testified about Gallardo’s history of aggression and

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violence. As we discuss below, the court also limited and excluded certain character
evidence.
Dr. Nancy Kaser-Boyd, a forensic psychologist, had interviewed Alvarez and
reviewed school records, police reports, and the records of social services agencies
pertaining to Alvarez. Dr. Kaser-Boyd administered a variety of tests to Alvarez,
including I.Q., Rorschach (ink blot) tests, and a personality assessment inventory.
Alvarez had a verbal I.Q. score of 86, placing her in the lowest 14th percentile of persons
her age. This was consistent with Alvarez’s school records that showed she performed
“well below average” in verbal reasoning. Alvarez’s perceptual reasoning and overall
I.Q. scores were in the “average range.” Rorschach and personality tests indicated
that Alvarez had suffered child abuse, was depressed, and viewed herself as damaged.
Dr. Kaser-Boyd explained that abused children often feel worthless, helpless, and
vulnerable, which can lead to domination and revictimization by new abusers. Alvarez
showed no signs of aggression or antisocial personality.
F. Gallardo’s Defense Evidence
Gallardo presented two defense witnesses: Dr. Deborah Miora, a forensic
neuropsychologist, and Gary Steiner, a retired police officer. Dr. Miora testified
that Gallardo had been in special education classes since the third grade and had
developmental disabilities. Gallardo’s I.Q. score was 57, which indicates an “extremely
low range of intellectual ability consistent with those who have mild to moderate mental
retardation.” Dr. Miora had not, however, made a formal diagnosis of mental retardation.
On other tests, Gallardo scored in the average range.
Steiner testified about police interview tactics and concerns he had regarding
Gallardo’s police interview. He testified that leading questions can be “problematic,” and
the use of two detectives, as in Gallardo’s case, is naturally coercive. Juveniles, such as
Alvarez and Gallardo, may not understand their rights and the implications of discussing
their crimes, and may admit to acts they did not do.

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DISCUSSION
I. Alvarez’s Appeal
A. Special Circumstances Findings
In connection with each murder count, the jury found true allegations of special
circumstances. (§ 190.2, subds. (a)(3) [multiple murders] & (a)(15) [lying in wait].)
Alvarez contends that the charge and convictions of special circumstances were error.
The People concede the error, but contend that it had no effect. We agree.
Generally, when a defendant is guilty of murder in the first degree and the jury
finds any “special circumstances,” the defendant is punished by death or life in prison
without the possibility of parole (LWOP) (§ 190.2, subd. (a)); in the absence of a special
circumstance, the sentence is imprisonment for 25 years to life (§ 190, subd. (a)). When
the defendant is 14 or 15 years old, however, an LWOP sentence may not be imposed
and the only authorized sentence is a term of 25 years to life with the possibility of
parole. (People v. Demirdjian (2006) 144 Cal.App.4th 10, 17; § 190.5.) Alvarez was
15 years old at the time of the crime, and the court correctly sentenced her on each count
to 25 years to life with the possibility of parole.
Because a true finding on the special circumstances allegations could not effect
Alvarez’s punishment and the allegations had no other lawful purpose, they should not
have been charged. (See People v. Spears (1983) 33 Cal.3d 279, 283 [juvenile could
not be charged with special circumstances when statutory scheme did not permit death
or LWOP for juveniles].) The trial court acknowledged that because Alvarez was
15 years old at the time she committed the crimes, the maximum sentence he could
impose on each count was 25 years to life, and the court so sentenced her. The minute
order, however, states that the court stayed the lying in wait special circumstance.
Because the allegation and the finding thereon were unauthorized, we will strike this
portion of the judgment. The abstract of judgment correctly describes Alvarez’s sentence

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and makes no mention of the special circumstances findings; therefore, no other
modification is required.8
B. Denial of Motion to Continue Trial
On February 26, 2013, Alvarez moved to continue the trial until June or July 2013
on the ground that Nancy Piña, a speech and language therapist who had been working
with Alvarez to help her to testify at trial, was having knee replacement surgery on
March 27, 2013, and would be unavailable for three months thereafter. Alvarez’s counsel
explained that Piña had been retained to get Alvarez “in a position where she can
articulate well enough to testify.” Counsel said she may also have Piña testify to rebut
any prosecution evidence that Alvarez “was perfectly articulate” during her police
interview. Counsel explained that Alvarez has difficulty expressing herself and, as a
result, she did not “lay out her whole history” in the police interview. The court asked
counsel to attempt to locate a replacement for Piña.
The court and counsel took up the matter again the next day. Counsel stated that
she could not find an expert to replace Piña. The court then ruled, “based on the offer of
proof,” that there was good cause to continue the trial to April 15, 2013, but found that a
continuance to June or July was “too long a time for the court to delay” the trial. Trial
commenced on April 22.
Alvarez contends that the denial of a continuance constituted an abuse of
discretion and a violation of her right to due process. We disagree.
A trial court may continue a trial only upon a showing of good cause. (§ 1050,
subd. (e); People v. Doolin (2009) 45 Cal.4th 390, 450.) “When a continuance is sought
to secure the attendance of a witness, the defendant must establish ‘[s]he had exercised
8 Under a separate heading, Alvarez argues that the court erred by failing to give
CALCRIM No. 702, which instructs the jury that in order to find true the multiple murder
special circumstance allegation, the jury must find that the defendant acted with the intent
to kill. Because we conclude that it was error to charge the special circumstances and the
true findings thereon are stricken, this argument is moot.

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due diligence to secure the witness’s attendance, that the witness’s expected testimony
was material and not cumulative, that the testimony could be obtained within a
reasonable time, and that the facts to which the witness would testify could not otherwise
be proven.’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The court
has broad discretion to determine whether good cause exists, and such discretion
“ ‘is abused only when the court exceeds the bounds of reason, all circumstances being
considered.’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 650, quoting People v. Beames
(2007) 40 Cal.4th 907, 920.)
On review, we consider the circumstances of the case and the reasons presented
for the request to determine whether the denial of a request for continuance was so
unreasonable as to deny due process. (People v. Doolin, supra, 45 Cal.4th at p. 450.)
Here, it appears that Piña had two roles: First, to help Alvarez prepare to testify at trial;
and second, to possibly testify herself to explain why Alvarez at the police interview
had difficulty articulating her story. Regarding the first role, as the court explained, Piña
could continue to work with Alvarez until her surgery on March 27, 2013. Regarding
the second role, the court reasonably concluded that counsel could, with due diligence,
obtain a substitute expert in the six weeks that remained before the new trial date and, in
any case, the evidence Piña was expected to provide was not material. Indeed, it appears
from counsel’s argument at the hearing that Piña was expected to testify, if at all, only
about the difficulty Alvarez had expressing herself during the police interview. The court
could have reasonably concluded that the recording of Alvarez’s interview was sufficient
to demonstrate to the jury her ability to articulate her thoughts. The court did not abuse
its discretion.
C. Exclusion of Post-Murder Character Evidence
Before trial, the prosecution moved to exclude testimony regarding Alvarez’s
character from witnesses who came to know her after the murders—i.e., while she was
detained in juvenile hall. Alvarez asserts that these witnesses would have testified to her
“character for nonviolence and honesty” to support her theory that the killing of her

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parents was “out of character” for her, and to add credibility to her testimony that she
lacked the intent to aid Gallardo. The court initially indicated that evidence of Alvarez’s
character before the incident and up to “a few days after” the incident was relevant,
but testimony from a witness who knew Alvarez one month after the incident was not
relevant. Alvarez’s counsel responded by stating that she planned to call witnesses who
have had recent daily or weekly contact with Alvarez and have formed opinions about her
character. The court then ruled that character evidence elicited from people who knew
Alvarez before the incident and “right after the incident” was relevant and would be
admitted, but evidence of her character thereafter, such as testimony from people in
juvenile hall, was not relevant and would not be admitted. The court also indicated that it
would reconsider its ruling if counsel provided authority for her position. Counsel did
not come forward with any authority or further argument.
Relevant evidence is evidence that has a “tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of the action.” (Evid. Code,
§ 210.) Trial courts have broad discretion to determine the relevance of evidence, and we
will not disturb the court’s exercise of that discretion unless the court acted unreasonably.
(People v. Jones (2013) 57 Cal.4th 899, 947.) Here, the court could reasonably conclude
that evidence of Alvarez’s nonviolent and honest character while in detention after the
murders had no tendency to prove or disprove her mental state or conduct at the time of
the murders. The court’s ruling was not an abuse of discretion.
Even if the court erred in excluding post-incident evidence of Alvarez’s character,
Alvarez has not established that the trial was fundamentally unfair or that she would have
obtained a more favorable result if the evidence had not been excluded. (See People v.
Watson (1956) 46 Cal.2d 818, 836; People v. Partida (2005) 37 Cal.4th 428, 439 [absent
fundamental unfairness, state law error in ruling on evidence is subject to Watson
standard].) Undisputed or compelling evidence establishes that Alvarez was aware
of and shared Gallardo’s intent to kill her parents, and that she acted to aid and abet
Gallardo in killing Villalta and participated in the killing of Lara. Alvarez and Gallardo

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had previously discussed killing them. On the evening of the murders, Alvarez let
Gallardo into the house after he informed her that he was there to kill them. She allowed
Gallardo to hide in a room out of Villalta’s view as she and Gallardo communicated
about killing Villalta via gestures and Alvarez’s notes. When Villalta walked down the
hall, Alvarez indicated to Gallardo “to go,” i.e., to go kill Villalta, while Alvarez went
outside to avoid seeing the murder take place. After Gallardo killed Villalta, Alvarez
helped Gallardo kill Lara by hitting Lara with a baseball bat and either kicking a knife
away from Lara’s reach or handing a knife to Gallardo, or both. In light of the strength of
the evidence and the inferences drawn therefrom, it is not likely that evidence of
Alvarez’s character from those who knew her only after the murders would have
produced a more favorable result. Therefore, even if the court’s ruling was erroneous,
reversal is not required.
D. Exclusion of Evidence of Gallardo’s Character and Culpability
Alvarez contends that the court erred by excluding evidence of other violent
incidents by Gallardo and Gallardo’s “character for violence, jealousy, and
possessiveness toward” Alvarez. In particular, she points to evidence she proffered of:
(1) testimony from the dean of students at Alvarez’s and Gallardo’s high school
regarding Gallardo’s character; (2) Alvarez’s statement that she had told Gallardo that
her parents tied her up after she ran away from home; and (3) testimony from one of
Gallardo’s former friends about Gallardo’s character for jealousy and violence, and of
a fight Gallardo and Lara had during Alvarez’s Quinceanera party. In addition, when
Dayana (Alvarez’s sister) was asked whether she had ever heard Gallardo threaten
Alvarez, she responded that Gallardo had threatened her (i.e., Dayana). The court struck
the answer as nonresponsive, and Dayana was not permitted to say more about the threat
to her.
Alvarez contends that the excluded evidence was relevant and “crucial” to her
defense that she lacked the intent to aid Gallardo’s murders. She further asserts that the
exclusion of the evidence deprived her of the ability to present a defense and her right

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to due process. We review the court’s evidentiary rulings for an abuse of discretion.
(People v. Gonzales (2012) 54 Cal.4th 1234, 1256-1257; People v. Robinson (2005)
37 Cal.4th 592, 625.)
None of the challenged rulings were an abuse of discretion or deprived Alvarez of
a defense. The court reasonably concluded that Evidence Code section 352 barred these
topics because they were more time consuming than probative. In any case, if error, the
rulings were harmless for the reasons discussed in the preceding section—it is not likely
that Alvarez would have obtained a more favorable result if the proffered evidence was
introduced. Moreover, Alvarez was permitted to introduce numerous incidents of
Gallardo’s violence toward her to support her defense that she acted out of fear of
Gallardo. Alvarez testified, for example, that Gallardo hit her, choked her, pulled her
hair, put a knife to her throat, brought a gun to school and put it to Alvarez’s head, and
made her take pills to have sex with her against her will. The challenged rulings did not
deprive Alvarez of a defense.
E. Exclusion of Evidence of Villalta’s and Lara’s Abuse
Alvarez was permitted to introduce evidence that Lara had sexually abused her
and evidence that Villalta had physically and verbally abused her. The court, however,
ultimately limited such evidence and excluded other evidence bearing upon the character
of the victims. For example, regarding testimony from Dayana about Alvarez’s
statements to her concerning sexual abuse, the court stated that it would allow Dayana to
testify generally as to what Alvarez told her, but not “the gory details of what she said.”
Alvarez points to several examples of excluded evidence, including the following. After
Alvarez testified that Villalta abused her, she was not permitted to answer the questions:
“What kind of abuse?” and “Did she hit you?” Alvarez was not permitted to introduce
evidence that Villalta had lit a newspaper on fire and burned Alvarez’s nose and face or
that Lara had danced with Alvarez at her Quinceanera party in June 2011. Dayana was
not permitted to testify that when Alvarez was five years old she saw Lara behaving
inappropriately with Alvarez in bed or whether she had ever seen Lara do anything

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sexually inappropriate to Alvarez. Dayana was also not permitted to testify that Lara
has sexually propositioned her or to testify generally as to Lara’s character. In each
instance, the court ruled that the proffered evidence was irrelevant or inadmissible under
Evidence Code section 352.
In response to defense counsel’s argument that the “whole history of sexual abuse”
was relevant to Alvarez’s state of mind at the time of the murder, the court stated that the
evidence was not offered “to prove a defense” or to “reduce[] her conduct for murder.”
Moreover, by the time Dayana’s testimony was offered, the jury had already “heard about
[Alvarez’s] belief that she was molested multiple times and physically abused by her
mother.”
Alvarez contends that the evidence of the victims’ abusive character was relevant
because it supported her defense that she lacked the intent to aid by showing that
Gallardo had a motive to commit the killings “on his own.” This argument is
unsupported by authority and is without merit. Even if Gallardo had “his own” motive
for killing Alvarez’s parents, that fact does not diminish Alvarez’s culpability for
Gallardo’s murders.
Alvarez further contends the evidence was relevant to show that she acted in the
heat of passion, which would have reduced the offense to manslaughter. We disagree.
A murder may be reduced to manslaughter based upon the heat of passion when, at the
time of the killing, the defendant’s reason was obscured or disturbed by passion, induced
by provocation, “to such an extent as would cause the ordinarily reasonable person of
average disposition to act rashly and without deliberation and reflection, and from such
passion rather than from judgment.” (People v. Barton (1995) 12 Cal.4th 186, 201.)
The defendant must have killed “while under ‘the actual influence of a strong passion’
induced by such provocation.” (People v. Moye (2009) 47 Cal.4th 537, 550.) Thus,
even when there is evidence of sufficient provocation, a homicide is not manslaughter
“ ‘ “if sufficient time has elapsed between the provocation and the fatal blow for passion
to subside and reason to return . . . .” [Citation.]’ [Citation.]” (Ibid.)

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Here, no evidence proffered or introduced even suggested that any of the physical
or sexual abuse Alvarez suffered was recent, let alone proximate, to the killings or that
Alvarez participated in the crimes while under the actual influence of passion induced by
any provocation. Indeed, the evidence is undisputed that Villalta was cooking soup in the
kitchen in the moments before she was killed, and Lara had merely arrived home from
work and had no recent contact with Alvarez prior to his murder. Alvarez’s argument on
this point is without merit.9
F. Erroneous Instruction on Natural and Probable Consequences
The court instructed Alvarez’s jury with CALCRIM No. 400 as follows:
“A person may be guilty of a crime in two ways. One, he or she may have directly
committed the crime. I will call that person the perpetrator. Two, he or she may have
aided and abetted a perpetrator, who directly committed the crime.
“A person is guilty of a crime whether he or she committed it personally or aided
and abetted the perpetrator.
“Under some specific circumstances, if the evidence establishes aiding and
abetting of one crime, a person may also be found guilty of other crimes that occurred
during the commission of the first crime.”
As Alvarez points out, the last sentence in the instruction refers to the natural
and probable consequences doctrine by which an aider and abettor may be liable for
unintended, but reasonably foreseeable offenses committed by the person she aids and
abets. (See People v. McCoy (2001) 25 Cal.4th 1111, 1117; People v. Rivas (2013)
214 Cal.App.4th 1410, 1432 (Rivas).) According to the bench notes for the instruction,
this language should be given to the jury only if “[t]he prosecution is also relying on the
natural and probable consequences doctrine.” (Judicial Council of Cal. Crim. Jury Instns.
(2014) Bench Notes to CALCRIM No. 400, p. 155.) In that situation, the court should
9 Under a separate heading, Alvarez argues that the court erred in denying her
request for jury instructions on voluntary manslaughter. Because there was no substantial
evidence to support such an instruction, the court did not err in denying the request.

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further instruct with CALCRIM No. 402 or No. 403. (Rivas, supra, 214 Cal.App.4th
at p. 1432.) Here, as the Attorney General concedes, the prosecution did not rely on the
natural probable consequences doctrine and the court did not further instruct as to that
doctrine. Instructing with the last sentence when the prosecution did not rely on the
natural and probable consequences doctrine and the jury was not further instructed on
the doctrine was error. (Id. at p. 1433.) The error, however, was harmless.
A similar error was found harmless in Rivas, supra, 214 Cal.App.4th 1410. In
that case, as here, the prosecution did not rely on the natural and probable consequences
doctrine to prove the defendant’s guilt. (Id. at p. 1434.) The last sentence of CALCRIM
No. 400 was, therefore, “superfluous and, without clarification through CALCRIM
No. 403, meaningless.” (Rivas, supra, at p. 1433.) Giving the superfluous instruction
was, however, harmless “ ‘because there [was] no reasonable likelihood the jury
misunderstood or misapplied the law.’ ” (Id. at p. 1434.)
The Rivas court relied on People v. Letner and Tobin (2010) 50 Cal.4th 99
(Letner). In Letner, the trial court gave the jury an instruction regarding the natural
and probable consequences doctrine without identifying the “target” offenses.
(Id. at p. 183.) As such, the instructions were incomplete, ambiguous, and erroneous.
(Id. at pp. 183-184.) The defendant argued that the instruction could have led the
jury to indulge in unguided speculation concerning the unspecified target offenses.
(Id. at p. 184.) The issue, however, was not what the jury could have done, but whether
there was “a reasonable likelihood that the jury did so.” (Ibid.) The court concluded that
there was no such likelihood and that the error was therefore harmless. (Ibid.)
The reasoning in Rivas and Letner applies equally here. As in those cases, the
prosecution did not rely on the natural and probable consequences doctrine. (See Letner,
supra, 50 Cal.4th at p. 184; Rivas, supra, 214 Cal.App.4th at p. 1434.) Although the
inclusion of the last sentence of CALCRIM No. 400 was superfluous and, therefore,
should not have been given, it is not reasonably likely that the jury misunderstood or
misapplied the law. Any error was therefore harmless.

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G. Aiding and Abetting and Implied Malice Instructions
The Alvarez jury was instructed on aiding and abetting with CALCRIM No. 401
as follows:
“To prove that the defendant is guilty of a crime based on aiding and abetting that
crime, the People must prove that:
“1. The perpetrator committed the crime;
“2. The defendant knew that the perpetrator intended to commit the crime;
“3. Before or during the commission of the crime, the defendant intended to aid
and abet the perpetrator in committing the crime;
“AND
“4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s
commission of the crime.”
The court also instructed the jury on murder and malice aforethought with
CALCRIM No. 520 as follows:
“There are two kinds of malice aforethought, express malice and implied malice.
Proof of either is sufficient to establish the state of mind required for murder.
“The defendant acted with express malice if (he/she) unlawfully intended to kill.
“The defendant acted with implied malice if:
“1. She intentionally committed an act;
“2. The natural and probable consequences of the act were dangerous to human
life;
“3. At the time she acted, she knew her act was dangerous to human life;
“AND
“4. She deliberately acted with conscious disregard for (human/[or] fetal) life.
“Malice aforethought does not require hatred or ill will toward the victim. It is a
mental state that must be formed before the act that causes death is committed. It does
not require deliberation or the passage of any particular period of time.”

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Although each instruction is legally correct, Alvarez contends that, read together,
the instructions could have misled the jury to believe that Alvarez could be liable for
murder as an aider and abettor without having the intent to kill. The jury could have
found, Alvarez argues, that she was liable as an aider and abettor even if she had only
the intent and knowledge required for implied malice; that is, the intent to commit an act
she knew was dangerous to human life. In that case, she contends, she would not have
“share[d] the murderous intent of the actual perpetrator,” as required for aiding and
abetting liability for murder in the absence of the natural and probable consequences
doctrine. (See People v. McCoy, supra, 25 Cal.4th at p. 1118.)
The problem with Alvarez’s argument is that she was not, as she asserts, “charged
with directly aiding-and-abetting” murder; she was charged with murder “with malice
aforethought.” Murder may, of course, be committed directly, as well as by aiding and
abetting another; and malice aforethought may be express or implied. Significantly,
the prosecution in this case relied not only on the theory that Alvarez aided and abetted
Gallardo’s perpetration of the murders (and shared his intent to kill), but also that
Alvarez’s acts proximately caused her parents’ deaths and that she committed such acts
with express or implied malice.
Regarding Villalta’s murder, the prosecutor argued that Alvarez caused Villalta’s
death by inviting Gallardo into the house knowing that he planned to kill her parents,
writing the incriminating notes to Gallardo, and gesturing to him “to go” kill Villalta.
In doing so, the prosecutor explained that Alvarez acted with implied malice because
“the natural consequences of her actions . . . were dangerous to human life . . . [a]nd
she knew that it was dangerous to human life, and she deliberately acted with conscious
disregard for human life.” Regarding Lara’s murder, the prosecutor argued that Gallardo
“needs a knife, and [Alvarez] goes and gets a knife. She gets a knife to let [Gallardo]
finish him off. . . . Those are the actions of this defendant.” In short, although it was
Gallardo’s hands that choked Villalta and stabbed Lara, Alvarez directed Gallardo down
the hall at the right time to kill Villalta and handed Gallardo the knife used to kill Lara.

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These actions are sufficient to constitute a “proximate cause” of the victims’ deaths as an
alternative to the theory of aiding and abetting. (See People v. Roberts (1992) 2 Cal.4th
271, 315-322; CALCRIM No. 240.) Thus, even if an implied malice instruction would
have been inappropriate if aiding and abetting was the prosecution’s exclusive theory of
liability, it was not error to include the instruction in light of the evidence and the theories
in this case.
H. Cumulative Effect
Alvarez argues that if any of the “numerous constitutional errors” were not
prejudicial in isolation, the cumulative effect of the errors requires reversal. We disagree.
To the extent any errors occurred, they are harmless individually and cumulatively.
I. Cruel and Unusual Punishment
The court sentenced Alvarez to two consecutive terms of 25 years to life plus
one year for the weapon enhancement, with the possibility of parole. Alvarez contends
that her sentence is the functional equivalent of LWOP, and the court erred by sentencing
her without considering the factors identified in Miller v. Alabama (2012) 567 U.S. __
[132 S.Ct. 2455, 183 L.Ed. 407] (Miller). In Miller, the United States Supreme Court
held that the Eighth Amendment prohibits the imposition of a mandatory LWOP sentence
for a juvenile who commits murder. (Id. at p. 2469.) A court may, however, impose an
LWOP sentence for a juvenile who commits murder when the sentence is discretionary
and the court “take[s] into account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.” (Ibid., fn. omitted.)
The Court identified five relevant factors: (1) the juvenile offender’s “chronological
age and its hallmark features—among them, immaturity, impetuosity, and failure to
appreciate risks and consequences”; (2) “the family and home environment that
surrounds [the juvenile]—and from which he cannot usually extricate himself—no matter
how brutal or dysfunctional”; (3) “the circumstances of the homicide offense, including
the extent of [the juvenile’s] participation in the conduct and the way familial and peer
pressures may have affected him,” including whether substance abuse influenced the

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juvenile’s criminal conduct; (4) whether the juvenile “might have been charged and
convicted of a lesser offense if not for incompetencies associated with youth—for
example, his inability to deal with police officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own attorneys”; and (5) whether there is a
possibility of rehabilitation, for which the absence or existence of a criminal history is
relevant. (Id. at pp. 2468–2469.) Miller does not address whether the rules it announced
applied to lengthy sentences that are functionally equivalent to LWOP.
In response to Miller and other decisions of the United States and California
Supreme Courts, the California Legislature enacted Senate Bill No. 260 (2013–2014
Reg. Sess.), adding section 3051 and section 4801, subdivision (c). Section 3051
provides in pertinent part that (subject to exceptions that are not applicable here) “[a]
person who was convicted of a controlling offense that was committed before the person
had attained 23 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 [Board of Parole Hearings (Board)] during
his or her 25th year of incarceration at a youth offender parole hearing.” 10 (§ 3051,
subds. (b)(3) & (h).) The youth offender parole hearing “shall provide for a meaningful
opportunity to obtain release.” (§ 3051, subd. (e).) In assessing the inmate’s “growth and
increased maturity,” the Board shall “take into consideration” and “give great weight to
the diminished culpability of juveniles as compared to adults, the hallmark features of
youth, and any subsequent growth and increased maturity of the prisoner in accordance
with relevant case law.” (§§ 3051, subd. (f)(1); 4801, subd. (c).)
In Franklin, supra, 63 Cal.4th 261, a juvenile convicted of murder and sentenced
to a mandatory term of 50 years to life asserted that his sentence was the functional
10 A “[c]ontrolling offense” is defined as “the offense or enhancement for
which any sentencing court imposed the longest term of imprisonment.” (§ 3051,
subd. (a)(2)(B).)

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equivalent of LWOP and unconstitutional under Miller. Our Supreme Court granted
review to determine whether section 3051 mooted his constitutional challenge and, if not,
whether his sentence violated Miller’s prohibition against mandatory LWOP sentences
for juveniles. (Franklin, supra, 63 Cal.4th at p. 268.) Although the Court stated that “a
juvenile may not be sentenced to the functional equivalent of LWOP for a homicide
offense without the protections outlined in Miller,” it held that section 3051 did moot the
defendant’s constitutional argument. (Id. at pp. 268, 276-277.) Section 3051, the Court
explained, “effectively reforms the parole eligibility date of a juvenile offender’s original
sentence so that the longest possible term of incarceration before parole eligibility is
25 years.” (Id. at p. 281.) The statute “thus superseded the statutorily mandated
sentences of inmates who . . . committed their controlling offense before the age of 18.”11
(Id. at p. 278.) Because such inmates are, “by operation of law, . . . entitled to a parole
hearing and possible release after 25 years of incarceration,” they are “not serving
an LWOP sentence or its functional equivalent.” (Id. at pp. 281-282.)
Alvarez contends that Franklin’s mootness holding does not apply here because
Alvarez’s functional LWOP sentence was the result of the trial court’s exercise of
judicial discretion, whereas in Franklin the defendant’s functional LWOP sentence
of 50 years to life was mandatory.12 We disagree. Nothing in section 3051 or Franklin
11 Section 3051 originally applied to persons who committed a controlling offense
before the person was 18 years old. (Former section 3051; Stats. 2013, ch. 312, § 4.)
The Legislature amended the statute in 2015 to include persons under 23 years of age.
(Stats. 2015, ch. 471, § 1.)
12 Alvarez’s 51 years to life sentence is the sum of two 25 years-to-life sentences
for two counts of murder (§§ 190, 190.5; People v. Spears (1983) 33 Cal.3d 279, 283)
plus a one-year sentence for her personal use of a deadly or dangerous weapon (§ 12022,
subd. (b)(1)). Whether to run the sentences for the murder convictions consecutively or
concurrently was a matter of discretion for the trial court. (§ 669; People v. Leon (2016)
243 Cal.App.4th 1003, 1025.) The sentence in Franklin, by contrast, was the sum of
a 25-years-to life sentence for one murder plus a 25-years-to-life enhancement for
personally discharging a firearm and causing death in the commission of the crime.

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suggests that the statute would affect discretionary sentences any differently than
mandatory sentences. Regardless of whether a juvenile’s lengthy sentence was the
result of judicial discretion or legislative mandate, the inmate will be entitled to a youth
offender parole hearing in his or her 25th year of incarceration and, therefore, will not
serve LWOP or its functional equivalent and “no Miller claim arises.” (Franklin, supra,
63 Cal.4th at p. 280; see People v. Cornejo (2016) 3 Cal.App.5th 36, 68 [Franklin applies
to sentence, “a portion of which was mandatory and the remainder discretionary”].)
Alvarez further argues that Franklin addressed the issue of cruel and unusual
punishment under the Eighth Amendment to the United States Constitution, but not
California’s constitutional prohibition against cruel or unusual punishment. (See Cal.
Const., art. I, § 17.) Although Alvarez is correct that courts have construed our state
constitutional provision separately from the Eighth Amendment (see People v. Carmony
(2005) 127 Cal.App.4th 1066, 1085), she offers no persuasive argument for limiting
Franklin’s analysis to the federal constitution.13 Indeed, because the Legislature has,
in effect, “reform[ed]” Alvarez’s sentence to provide her with a parole eligibility in her
25th year of incarceration (Franklin, supra, 63 Cal.4th at p. 281), her sentence for two
murders is not “grossly disproportionate” to her offenses. (People v. Dillon (1983)
34 Cal.3d 441, 478.) It does not, therefore, violate the California Constitution.
Although Franklin resolves issues concerning the constitutionality of Alvarez’s
sentence, Franklin raises another question—whether the trial court should hold a
(12022.53, subd. (d).) Unlike the sentence for a second murder, the enhancement “shall”
run consecutive to the sentence for the murder. (Ibid.)
13 Alvarez also contends that “Franklin was wrongly decided,” (boldface omitted)
and that the “after-the-fact corrective by the legislature should not render moot a claim
that the sentencing court failed to impose sentence in a constitutional manner.” She
acknowledges, however, that we might consider ourselves “bound to follow Franklin
on this point,” but that she “nevertheless raises this issue here to preserve the issue for
review” in the state Supreme Court and federal courts. We are, of course, so bound.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

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so-called “baseline hearing” (Franklin, supra, 63 Cal.4th at p. 287 (conc. & dis. opn.
of Werdegar, J.)) to permit Alvarez to make a record of evidence relevant to a
youth offender parole hearing. In Franklin, the court explained that section 3051
and section 4801 “contemplate that information regarding the juvenile offender’s
characteristics and circumstances at the time of the offense will be available at a
youth offender parole hearing to facilitate the Board’s consideration. For example,
section 3051, subdivision (f)(2) provides that “ ‘[f]amily members, friends, school
personnel, faith leaders, and representatives from community-based organizations
with knowledge about the individual before the crime . . . may submit statements for
review by the [B]oard.’ ” (Id. at p. 283.) Assembling that information, the Court
observed, “is typically a task more easily done at or near the time of the juvenile’s
offense rather than decades later when memories have faded, records may have been lost
or destroyed, or family or community members may have relocated or passed away.”
(Id. at pp. 283-284.)
The Franklin court stated it could not determine whether the defendant had a
sufficient opportunity to put such information on the record. (Franklin, supra, 63 Cal.4th
at p. 284) The Court then remanded the matter for the limited purpose of determining
“whether [the defendant] was afforded sufficient opportunity to make a record of
information relevant to his eventual youth offender parole hearing.” (Id. at p. 284.) If
the trial court determines that the defendant “did not have sufficient opportunity, then the
court may receive submissions and, if appropriate, testimony pursuant to procedures set
forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the
rules of evidence. [The defendant] may place on the record any documents, evaluations,
or testimony (subject to cross-examination) that may be relevant at his eventual youth
offender parole hearing, and the prosecution likewise may put on the record any evidence
that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise
bears on the influence of youth-related factors.” (Franklin, supra, 63 Cal.4th at p. 284.)

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The Attorney General argues that remand is unnecessary because Alvarez had a
sufficient opportunity to make, and did make, a record of information relevant to her
eventual youth offender parole hearing. The Attorney General finds support in our
prior opinion, in which we stated that the record indicates that the court considered the
pertinent Miller factors in selecting the sentence. Nevertheless, the fact that the court
considered the Miller factors does not necessarily mean that Alvarez had an opportunity
to place on the record evidence that would be relevant at her youth offender parole
hearing. As Alvarez observes, at the time of the sentencing hearing, Franklin had not
been decided “and the defense had little, if any, relevant authority to guide their handling
of the hearing with respect to the hearing’s related purpose of establishing a record
that could be used at [her] youth offender parole hearing.” As in Franklin, we believe
the appropriate course is to remand the matter for the purpose of determining whether
Alvarez was afforded the opportunity the Franklin court established and, if not, to hold
the baseline hearing described in that case.
II. Alvarez’s Habeas Petition
In Alvarez’s habeas petition, she contends that her trial attorney was
constitutionally and prejudicially deficient in four ways: (1) counsel failed to move to
suppress Alvarez’s confession on the grounds that it was obtained in violation of her
constitutional rights under Miranda; (2) counsel turned over to the prosecution an
unredacted, privileged report from defense psychologist, Dr. Kaser-Boyd; (3) counsel
failed to object to the prosecutor’s statements in closing argument that aiders and abettors
are “equally guilty”; and (4) counsel failed to object to the prosecutor’s statements in
closing argument that this case was “indefensible” and Alvarez’s defense was a “fiction
developed for you.” We reject those contentions.
“Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel. [Citations.] The ultimate purpose of this right is to protect
the defendant’s fundamental right to a trial that is both fair in its conduct and reliable

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in its result. [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 215, citing
Strickland v. Washington (1984) 466 U.S. 668, 684-687; People v. Pope (1979) 23 Cal.3d
412, 422-425.) To establish Alvarez’s claim of ineffective assistance, she must show that
her counsel’s performance “fell below an objective standard of reasonableness” evaluated
“under prevailing professional norms.” (Strickland v. Washington, supra, 466 U.S.
at p. 688; accord, People v. Ledesma, supra, 43 Cal.3d at p. 216.) If Alvarez establishes
that counsel’s performance was deficient, she is entitled to relief only if she also
establishes that she was prejudiced by counsel’s dereliction. (Strickland v. Washington,
supra, at pp. 691–692; accord, People v. Ledesma, supra, at p. 217.) In order to show
prejudice, “[t]he defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland v. Washington, supra, at p. 694.) The defendant bears the burden
of proof on these issues by a preponderance of the evidence. (People v. Ledesma, supra,
at p. 218.)
A. Failure to Move to Suppress Alvarez’s Statements to Police
Alvarez contends that her trial counsel was constitutionally deficient because
counsel failed to move to suppress evidence of her statements to the deputies on the
ground that they were made in violation of her Miranda and due process rights. We
disagree.
A waiver of Miranda rights must be knowing, intelligent, and voluntary under
the totality of the circumstances of the interrogation. (People v. Sauceda-Contreras
(2012) 55 Cal.4th 203, 217.) A waiver is voluntary when it is “ ‘the product of a free
and deliberate choice rather than intimidation, coercion, or deception’ [citation], and
knowing in the sense that it was ‘made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to abandon it.’ [Citation.]”
(Id. at p. 219.) The prosecution bears the burden of proving these elements by a
preponderance of the evidence. (People v. Linton (2013) 56 Cal.4th 1146, 1171.)

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In a letter from Alvarez’s trial counsel, Carole Telfer, to Alvarez’s habeas counsel,
Telfer states that she reviewed the transcripts and videotapes of Alvarez’s confession
several times and did not find any legal basis for suppressing the statements. For the
reasons that follow, Telfer’s decision not to file a motion to suppress the statements did
not fall below the requisite standard of reasonableness and, if it did, Alvarez has failed to
establish any resulting prejudice.
Had counsel so moved and had the trial court refused to suppress Alvarez’s
statements, we would have affirmed. Even if we assume that Alvarez was in custody for
purposes of Miranda at the time of the interview, nothing in the record suggests that her
waiver of her right to remain silent was anything other than knowing, intelligent, and
voluntary.
After Alvarez told the deputies the false story about her parents’ disappearance
and before the deputies confronted her with the notebook found at her house, the
following colloquy took place:
“[Deputy] Bergner: Help us out, find your mom, and the best way we can, uh,
you can help us out is being as truthful and truthful and honest as possible. So, you know
that obviously, you don’t have to sit here and talk to us, but you are because you wanna
help us out [and] find mom, right?
“Alvarez: Yeah.
“[Deputy] Bergner: Okay. You read and write English, right?
“Alvarez: Yeah.
“ [Deputy] Bergner: Okay. So what I want you to do is read through this real
quick because we got a couple things we wanna show you, okay?
“Alvarez: Uh-huh
“ [Deputy] Bergner: And we wanna confirm all the information and try to get all
that stuff so we can get your mom tracked down, okay?
“Alvarez: Yeah.

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“ [Deputy] Bergner: Okay. You have the right to remain silent; do you
understand that?
“Alvarez: Yes.
“ [Deputy] Bergner: Okay. Now just put a circle mark next to the ones, or, circle
next to the one if you understand. You understand, right?
“Alvarez: Yeah.
“ [Deputy] Bergner: Okay. Anything you say may be used against you in court;
do you understand that?
“Alvarez: Yes.
“ [Deputy] Bergner: You have the right to an attorney during questioning; do you
understand?
“Alvarez: No.
“ [Deputy] Bergner: Okay, you have the right to have an attorney with you when
we talk to you.
“Alvarez: Attorney what? Oh—
“ [Deputy] Bernstein: A lawyer.
“ [Deputy] Bergner: Yeah.
“ [Deputy] Bernstein: [A lawyer.] Abogado.
“Alvarez: Yeah.
“ [Deputy] Bergner: And if you cannot afford an attorney, a lawyer, one will be
appointed to you before questioning; do you understand that?
“Alvarez: Yeah.
“ [Deputy] Bergner: And do you wanna talk to us about finding your mom?
“Alvarez: Yeah.
“[Deputy] Bergner: Okay. And then right down here, just sign right there by
that X. Okay. Okay, I’m just gonna sign this myself.” (Capitalization omitted.)
In addition to the transcription of the interview, the appellate record includes the
audio-video recording of the interview. As each admonition was read, Alvarez marked

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a form next to the admonition to indicate she understood it. Contrary to Alvarez’s
characterization that the deputy read the admonition “quickly,” the pace of the interaction
appears to be no quicker than ordinary conversation and consistent with the interview
generally.
One aspect of this interaction is particularly relevant. When Deputy Bergner
asked Alvarez if she understood that she has a right to an attorney during questioning,
Alvarez initially responded, “No.” When the deputy repeated the admonition, she looked
back at him questioningly and asked, “Attorney what?” Deputy Bernstein responded,
“A lawyer. Abogado.”14 Alvarez then indicated she understood and marked the form.
Rather than indicate a lack of understanding about her rights, this interaction reveals that
Alvarez was listening carefully to the deputy’s words and was willing to speak up and
admit her lack of understanding when she did not understand.
Alvarez’s initial lack of understanding regarding the right to have an attorney
present during questioning does not indicate that she did not have the capacity to, or
did not, understand the Miranda admonitions. Once the deputies explained that the
word “attorney” meant lawyer, or abogado (lawyer in Spanish), she indicated her
understanding and marked the form. Other than this initial lack of understanding
regarding the English word for attorney, there is nothing in the interview to suggest that
Alvarez had any difficulty with understanding spoken or written English.
We have reviewed the transcript and audio-video recording of the interview and
there is nothing to suggest that Alvarez did not understand the rights explained to her or
was unwilling to talk to the deputies. Based on the totality of the circumstances, Alvarez
voluntarily, knowingly, and intelligently waived those rights. Alvarez has therefore
failed to establish that her trial counsel was ineffective for failing to move to suppress
Alvarez’s statements to the deputies on that ground.
14 The transcription of the interview included in the clerk’s transcript reports this
line as “(Inaudible). Abogado.” In the audio-video recording of the interview, however,
the “[i]naudible” phrase is clearly, “A lawyer.”

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Alvarez further contends that her counsel was deficient by failing to move to
suppress her confession on the ground it was involuntary. We disagree because nothing
in the record would have supported such a motion.
B. Turning Over Dr. Kaser-Boyd’s Report to the Prosecution
Prior to trial, Dr. Kaser-Boyd, an appointed defense psychologist, interviewed
Alvarez to evaluate her mental state at the time of the murders. Dr. Kaser-Boyd’s report
included incriminating statements that Alvarez had not made to the police. First, in
describing the moments just before Villalta was killed, Alvarez said: “ ‘My mom went[,]
“Oh, the food is ready,” and went outside and then I told [Gallardo] to go. I moved my
hand, like[,] “Go.” Then it all happened.’ ” Second, in describing Lara’s struggle with
Gallardo, Alvarez said: “ ‘He (Lara) had the knife in his hand, and I kicked it away from
him.’ ” Third, Alvarez said that Gallardo “ ‘told me to get a black knife from the kitchen
table. I think when he was unconscious he was hitting him, and he stabbed him.’ ” As
Alvarez correctly points out, she had not told the interviewing deputies about her hand
gesture to Gallardo, that she had kicked a knife away from Lara, or that she had retrieved
a knife for Gallardo.
Dr. Kaser-Boyd’s report is dated March 31, 2013. In a letter to Alvarez’s habeas
counsel, Telfer stated that she received the report on the morning of April 2, 2013, the
date set for the defense to make its discovery disclosures. (See § 1054.3.) Regarding the
report, Telfer explained: “I did not have much time, if any, to actually absorb all of the
information I had received on this case and ‘ponder’ or think about tactics as to what
should be given and not given to the [District Attorney]. Because it had been made clear
by me, to the court and counsel, that I intended to put my client on the stand, and
because I was hoping that [Dr.] Kaser-Boyd’s report would lead the [District Attorney]
to possibly offer a negotiated settlement, I gave the report, as is, to the prosecutor. Also,
I did not know at that time, that I would be forced to call my client to the stand before
being allowed to bring in other evidence of her abuse by the victims. [¶] With respect to
any impact [Alvarez’s] statements to Dr. Kaser-Boyd in the report made, I believe one

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of her statements made a big impact. When . . . Alvarez was being cross-examined
by Deputy D.A. Trutanich, Ms. Trutanich asked her about giving a hand signal to the
co-defendant that said it was okay to go ahead with the act of killing her mom, and
Ms. Alvarez admitted that she did give him a hand signal, like ‘go.’ . . . Also, in the
report she had told [Dr. Kaser-Boyd] that victim Lara had a knife in his hand, and
she kicked it away from him. . . . Ms. Trutanich asked her about that as well in her
cross-examination. It appeared to have made an impact on the jury, as I heard an
audible gasp. Both of these statements seemed to make her out to be more of an active
participant, than just present at the crime.”
Alvarez and the Attorney General agree that Dr. Kaser-Boyd’s report was,
at least initially, protected from disclosure by the physician-patient privilege and the
attorney-client privilege. (See Evid. Code, §§ 951-954, 1014, 1017; People v. Ledesma
(2006) 39 Cal.4th 641, 690.) Although the physician-patient privilege would have been
waived once Alvarez put her mental state in issue, the report could have remained
protected from disclosure under the attorney-client privilege until Dr. Kaser-Boyd
testified at trial, even after identifying Dr. Kaser-Boyd as a potential witness in the
defense’s disclosures. (§ 1054.6; Rodriguez v. Superior Court (1993) 14 Cal.App.4th
1260, 1269; Andrade v. Superior Court (1996) 46 Cal.App.4th 1609, 1614.)
The only reason Telfer gave for turning over the privileged report approximately
three weeks before trial is that she “was hoping that [it] would lead the [District
Attorney] to possibly offer a negotiated settlement.” Telfer admits, however, that she
had not had time “to actually absorb all of the information [she] had received on this
case” or to consider tactics in disclosing information to the prosecution. The comment
indicates that Telfer did not carefully read or fully understand the significance of
Dr. Kaser-Boyd’s report before producing it to the prosecution. Even if we assume
that turning over Dr. Kaser-Boyd’s report in order to evoke a settlement offer might be
a valid tactical decision once counsel understood its contents, there appears to be no
legitimate reason for doing so before then. The production of the privileged document

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without such an understanding, we conclude, fell below an objective standard of
reasonableness. (See People v. Ledesma, supra, 43 Cal.3d at p. 215 [a defendant can
“reasonably expect that before counsel undertakes to act at all he will make a rational and
informed decision on strategy and tactics founded on adequate investigation and
preparation”].)
Alvarez has not, however, established that the early production of the document
was prejudicial. Because the defense called Dr. Kaser-Boyd to testify at trial, the defense
would have been required to turn over the report eventually. (See People v. Coleman
(1989) 48 Cal.3d 112, 152; People v. Whitmore (1967) 251 Cal.App.2d 359, 366.) There
is no reason to believe that the prosecution’s premature access to the report produced a
different result at trial.
Alvarez argues that if counsel had not turned the report over to the prosecution
when she did, she might have elected not to call Dr. Kaser-Boyd at all, and thereby
avoided the disclosure of Alvarez’s incriminating statements to the psychologist. Even
if we assume that Alvarez’s counsel would have made that tactical decision, Alvarez
has not established a reasonable probability that the result of the trial would have been
different. Excluding the admissions in Dr. Kaser-Boyd’s report, the evidence of
Alvarez’s guilt is overwhelming, and Telfer, in her letter to habeas counsel, does
not indicate she would have made such an election, implying that she would have
called Dr. Kaser-Boyd regardless of the inculpatory statements in the report.
The reasonableness of that decision would depend upon whether the benefits of
Dr. Kaser-Boyd’s testimony outweighed the harm to the defense case as a result of the
statements. The extent of the harm depends upon the strength of the evidence against
Alvarez in the absence of the additional statements. That evidence includes the
following. According to Alvarez, she and Gallardo had talked about killing her parents in
the weeks before the murders and, as she stated in her police interview, agreed to “do it.”
On the day of the murders, she invited Gallardo into her house after Gallardo said he was
there to kill her parents. Alvarez let Gallardo hide inside the house, out of Villalta’s

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sight. In response to Gallardo’s gestures indicating he was going to kill Villalta, Alvarez
wrote notes to him, asking, for example, whether it might be better to kill Villalta after
she went to bed. Although Alvarez indicated to Gallardo that she did not want to kill her
mother because she was afraid she would have flashbacks, she told him, “You do it.”
Thus, even without the statement to Dr. Kaser-Boyd that Alvarez made the gesture to
Gallardo “to go,” the evidence that she aided and abetted Gallardo’s murder of Villalta is
compelling. The evidence of Alvarez’s participation in the murder of Lara is also strong
even in the absence of her statements to Dr. Kaser-Boyd. After seeing Villalta’s dead
body on the floor and knowing Gallardo’s plan to kill Lara, Alvarez waited silently on
her couch as Gallardo hid behind a door with a baseball bat. As Gallardo struggled with
Lara, Alvarez came to his aid and hit Lara with the baseball bat. Thus, while some
statements in Dr. Kaser-Boyd’s report were harmful to the defense, in light of the
strength of the case against her even without that report, Alvarez has failed to establish
prejudice.
C. Failure to Object to the Prosecutor’s “Equally Guilty” Comment
During closing argument, the prosecutor stated: “Aiding and abetting tells you
that a person may be guilty of a crime in two ways: She directly commit[ted] the crime,
or she aided and abetted someone else, the perpetrator, Giovanni Gallardo, . . . who
committed the crime. A person is equally guilty, equally guilty of the crime whether she
committed it personally or whether she aided and abetted the perpetrator who committed
it.” The prosecutor also referred to a PowerPoint-style slide with the statement: “A
person is equally guilty of the crime whether she committed it personally or aided and
abetted the perpetrator who committed it.” (Underlining in original.)
Alvarez contends that her trial counsel was constitutionally deficient by failing
to object to the prosecutor’s “equally guilty” language as an incorrect statement of law.
The statement is incorrect, she asserts, because aiders and abettors may be more or less
culpable than the direct perpetrator, depending upon their respective mental states;

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they are not necessarily equally guilty. (See People v. Nero (2010) 181 Cal.App.4th
504, 518-519; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164-1165.)
Telfer explained in her letter to habeas counsel that she “pondered whether or
not to object” to this comment, but decided to “let it go” because the “statement was
generally ‘correct.’ ”
Although a former version of CALCRIM No. 400 used the phrase “equally
guilty,” the jury was properly instructed with a version of CALCRIM No. 400 that
omits that phrase and states that a “person is guilty of a crime whether he or she
committed it personally or aided and abetted the perpetrator.” (See People v. Nero,
supra, 181 Cal.App.4th at p. 517 [former version of CALCRIM No. 400].) The jurors
were further instructed that they “must follow the law as [the court] explain[s] it to you”
and “[i]f you believe that the attorneys’ comments on the law conflict with [the court’s]
instructions, you must follow [the court’s] instructions.” We presume the jury followed
these instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) Therefore, even if we
assume that the prosecutor’s statement was legally incorrect and Telfer’s failure to object
to the prosecutor’s statement fell below the requisite standard of care, Alvarez has failed
to establish “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” (Strickland v. Washington, supra,
466 U.S. at p. 694.) We therefore reject Alvarez’s argument.
Moreover, Telfer’s decision not to object because the “equally guilty” statement
is “generally correct” is also a valid tactical decision. In People v. Samaniego, supra,
172 Cal.App.4th 1148, which held that the “equally guilty” language in former
CALCRIM No. 400 was misleading, the court acknowledged that it is nevertheless
“generally correct in all but the most exceptional circumstances.” (Id. at p. 1165,
italics added; see also People v. Smith (2014) 60 Cal.4th 603, 613 [“ ‘those who
aid and abet and those who actually perpetrate the offense are principals and equally
culpable’ ”].) Such “exceptional circumstances” would exist when, for example, one
defendant intends to aid and abet another in the commission of an assault and the direct

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perpetrator assaulted the victim then intentionally killed another. If the killing was not
a natural and probable consequence of the assault, the aider and abettor would be less
culpable than the direct perpetrator. (People v. Woods (1992) 8 Cal.App.4th 1570, 1593.)
Here, however, there is no evidence that Alvarez, in aiding and abetting Gallardo,
intended anything less than Villalta’s and Lara’s deaths. Thus, even if counsel objected
to the prosecutor’s statement and the court made an appropriate admonishment, it is not
reasonably probable that the objection would have had any effect upon the jury or the
result. (See People v. Johnson (2016) 62 Cal.4th 600, 640-641.) Alvarez was not,
therefore, deprived of the effective assistance of counsel on this basis.
D. Failure to Object to Other Statements in the Prosecutor’s Closing
Argument
In the prosecutor’s rebuttal argument, she made the following statements: “When
I was first assigned this case and I read the facts of it, I thought to myself, ‘how do you
defend a crime that is truly indefensible?’ And we just listened to the defense summary
in this case. And it’s blame everyone else and paint a picture of a sad, submissive,
abused girl.” Later, the prosecutor showed the jury the video recording of Alvarez
and Gallardo while they were alone together at the sheriff’s station, and commented on
Alvarez’s behavior: “This is not a girl who is meek in the corner and sitting there scared
of . . . Gallardo. That’s not her personality. That was all fiction that was developed for
you.” Telfer did not object to these statements.15
Alvarez contends that these statements constitute prosecutorial misconduct and
that Telfer was constitutionally ineffective for failing to object. We disagree. We have
15 In Telfer’s letter to habeas counsel, she stated that she did not hear the
prosecutor make the challenged statement. Telfer explained, “I had a[n] emotional
breakdown after my closing argument, and was not very focused on anything thereafter.”
She also refers to the declaration that she made in support of Alvarez’s motion for new
trial, in which she states, “When I was making my closing argument . . . , I started having
trouble with labored breathing while arguing. After the trial, I broke down mentally and
cried for a long time (outside [the] presence of the jury).”

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considered the challenged statements in their context and conclude that they do not
constitute prosecutorial misconduct, and the failure to object, therefore, did not fall below
the standard of care for constitutionally effective counsel.
E. Cumulative Effect of Errors
Alvarez contends that even if the alleged errors of her counsel did not constitute
ineffective assistance when viewed separately, the cumulative effect does. As discussed
above, the only acts that were potentially below the applicable standard of care were the
premature disclosure of Dr. Kaser-Boyd’s report and the failure to object to counsel’s
reference to the equal guilt of aiders and abettors. Whether such conduct is considered
individually or cumulatively, Alvarez has failed to establish that they were prejudicial.
For all the foregoing reasons, we deny Alvarez’s petition for a writ of habeas
corpus.
III. Gallardo’s Appeal
A. Gallardo’s Waiver of Miranda Rights
Prior to trial, Gallardo moved to exclude the statements he made in his police
interview on the ground that he did not validly waive his Miranda rights. Following
an evidentiary hearing, the court concluded that Gallardo was not in custody during the
police interview and, if he was, he made a knowing and intelligent waiver of his rights.
Gallardo contends that the ruling was erroneous for two reasons. First, Gallardo was
in custody when he was interrogated; and second, his waiver of his Miranda rights was
neither knowing nor intelligent. We reject the second contention and, therefore, do not
address the first.
The standards pertaining to our review of alleged Miranda violations are set
forth in our discussion of Alvarez’s habeas petition above. In short, the waiver must
be knowing, intelligent, and voluntary under the totality of the circumstances of
the interrogation. (People v. Sauceda-Contreras, supra, 55 Cal.4th at p. 217.) We
“ ‘must accept the trial court’s resolution of disputed facts and inferences, as well as its
evaluation of the credibility of witnesses where supported by substantial evidence.

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[Citations.]’ ” (Ibid.) We then independently determine from the undisputed facts and
those found by the trial court whether the challenged statement was lawfully obtained.
(People v. Johnson (1993) 6 Cal.4th 1, 25.)
Gallardo’s police interview lasted about an hour and 45 minutes. Near the outset
of the interview, the following colloquy took place:
“[Deputy] Bergner: Okay. You read and write English, right?
“Gallardo: No, I can’t write and I can’t read.
“[Deputy] Bergner: You can’t read?
“Gallardo: No.
“[Deputy] Bergner: Okay. Can you—so you don’t read English at all?
“Gallardo: Huh-uh.
“[Deputy] Bergner: Okay, well let me explain this to you then.
“[Deputy] Bernstein: Yeah, but you speak, as your primary language, in
English, correct?
“Gallardo: In English, yeah. I can speak it right, but I can’t write or
read it.
“[Deputy] Bernstein: Okay. But you[’re] comfortable with us speaking to
you in English?
“Gallardo: Uh-huh. Yeah.
“[Deputy] Bernstein: Okay.
“[Deputy] Bergner: Okay, well I’m gonna explain this to you then, and if
at any time you don’t understand me, you can tell me, okay? You have the right to
remain silent. You don’t have to talk to us; do you understand?
“Gallardo: Uh-huh.
“[Deputy] Bergner: Is it yes?
“Gallardo: Yes.
“[Deputy] Bergner: Okay. Anything you say may be used against you in
court; do you understand?

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“Gallardo: Uh-huh. Yes.
“[Deputy] Bergner: You have the right to an attorney during questioning;
do you understand?
“Gallardo: Uh-huh. Yes.
“[Deputy] Bergner: If you can’t afford an attorney, one will be appointed
for you before questioning; do you understand?
“Gallardo: Yes, I do.
“[Deputy] Bergner: Do you wanna talk to us about what happened?
“Gallardo: Yes.
“[Deputy] Bergner: Okay. We’re gonna set everything straight?
“Gallardo: Uh-huh.
“[Deputy] Bergner: Okay. You understand everything I just told you?
“Gallardo: Yes.
“[Deputy] Bergner: Are you confused at any points?
“Gallardo: No, I’m not confused.
“[Deputy] Bergner: And what I just read to you were these one, two, three,
four, five pieces, okay? And as I read them to you, you indicated that you
understood each one of them, correct?
“Gallardo: Yes.
“[Deputy] Bergner: Okay. If you can, can you sign right here?
“[Deputy] Bernstein: You’re in tenth grade, so you—you can write a little
bit. You didn’t get to tenth grade without writing and reading.
“Gallardo: Well, I’m in special classes pretty much.
“[Deputy] Bernstein: Okay.
“Gallardo: And they . . . understand how I am.
“[Deputy] Bergner: Oh, I understand that. I’m just saying you know how
to read and write a little bit.
“Gallardo: (Inaudible).

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“[Deputy] Bergner: Do you speak Spanish?
“Gallardo: Yeah.
“[Deputy] Bergner: Yeah? What do you speak at home mostly? Spanish
or English?
“Gallardo: Spanish.
“[Deputy] Bergner: Spanish? But, again, there’s no questions? You
understood everything that I explained to you?
“Gallardo: Yeah, everything’s okay. Yeah. I understand everything.”
(Capitalization omitted.)
At the hearing on Gallardo’s motion, Deputy Bergner testified that Gallardo’s
mother brought Gallardo to the Compton sheriff’s station without being asked to do so.
Bergner and another deputy escorted Gallardo to a conference room and, later, after they
interviewed Alvarez, to an interview room. Deputies Bergner and Bernstein were in
the interview room with Gallardo. The deputies did not take out their firearms and there
were no restraints placed on Gallardo. The deputies spoke English, and Gallardo seemed
to understand. Gallardo never indicated that he would have been more comfortable
speaking in another language. About four and a half minutes into the interview, Deputy
Bergner advised Gallardo of his Miranda rights, in English. Gallardo assented to each
advisement and “circl[ed] each line as [the deputy] read them to him. At no point did
Gallardo ask to leave the room or request an attorney.
The court ruled that Gallardo was not in custody for purposes of Miranda, and,
if he was, he knowingly and intelligently waived his Miranda rights. The court expressly
considered Gallardo’s young age, the evidence that he had an I.Q. score of 57, and that
he was not able to read or write English. Gallardo, the court stated, did not have an
“extreme impediment that would prevent him from understanding.”
On appeal, Gallardo concedes that his waiver of rights was voluntary; he contends,
however, that it was not made knowingly and intelligently. Gallardo points to the
following factors: (1) his understanding of English was limited; (2) his lack of familiarity

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with the Miranda advisements (there was no evidence he had previously been arrested or
advised of his Miranda rights); (3) his young age (16 years); and (4) his low I.Q. (57).
We disagree.
The record supports the trial court’s determination. Although Gallardo stated that
he did not read or write English fluently, he showed no difficulty in understanding the
language and nothing in his responses suggested that he did not understand his rights
as Deputy Bergner read them. Although, as the trial court recognized, Gallardo’s youth
and low I.Q. are relevant factors in considering whether the waiver was knowing and
voluntary (see, e.g., In re John S. (1988) 199 Cal.App.3d 441, 445), neither Gallardo’s
age nor his low I.Q. score preclude a valid waiver. (See In re Norman H. (1976)
64 Cal.App.3d 997, 1002-1003 [15-year-old with an I.Q. of 47 could validly waive
Miranda rights].) Finally, Gallardo’s alleged lack of familiarity with Miranda does not
render his waiver, under the totality of the circumstance, invalid.
B. Failure to Give Accomplice Instruction
During Gallardo’s police interview, Deputy Bergner informed Gallardo that
Alvarez had been “honest” and “pretty truthful” with them and, as a result, they “got
the real story” and knew “exactly what happened.” Although the deputies did not quote
Alvarez verbatim, Gallardo contends that “the gist of what Alvarez told the detectives
was clear—she implicated both herself and Gallardo in the murders.” Gallardo contends
that because this colloquy implied that Alvarez, an undisputed accomplice, had
implicated Gallardo, the court had a sua sponte duty to instruct the jury that Alvarez
was an accomplice whose out-of-court statements must be viewed with caution and
corroborated.16
16 Specifically, Gallardo argues that the court should have given
CALCRIM No. 335, which provides in part: “You may not convict the defendant
of <insert crime[s]> based on the (statement/[or] testimony) of an accomplice alone.
You may use the (statement/[or] testimony) of an accomplice to convict the defendant
only if: [¶] 1. The accomplice’s (statement/[or] testimony) is supported by other

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Under section 1111, a “conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect
the defendant with the commission of the offense.” The “testimony” of an accomplice
for purposes of section 1111 includes out-of-court statements “ ‘made under suspect
circumstances,’ ” such as “ ‘when the accomplice has been arrested or is questioned by
the police.’ ” (People v. Williams (1997) 16 Cal.4th 153, 245, quoting People v. Jeffery
(1995) 37 Cal.App.4th 209, 218, italics added.) The Attorney General does not dispute
that Deputy Bergner’s statements about Alvarez’s “testimony” implicate the need for
corroborating evidence under section 1111.
A trial court’s failure to instruct on accomplice liability is harmless if there is
sufficient corroborating evidence in the record. (People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 303.) The corroborating evidence may be slight and is ‘ “sufficient if it
tends to connect the defendant with the crime in such a way as to satisfy the jury that the
accomplice is telling the truth.’ [Citation.]” (Ibid.) Here, the corroborating evidence of
Gallardo’s guilt is overwhelming. Gallardo gave a detailed confession of the murders,
and guided deputies to locations where the bodies were buried and other physical
evidence was found. His confession was itself corroborated by, among other things, his
accurately locating the blanket Lara was wrapped in, another blanket used to dispose of
Villalta’s body, and the blood-stained baseball bat used to bludgeon Lara. Any error in
failing to give an accomplice instruction was therefore harmless.
C. Gallardo’s Sentence is not Cruel or Unusual Punishment
The trial court sentenced Gallardo to two terms of life without the possibility of
parole pursuant to section 190.5, subdivision (b).17 He contends that the trial court failed
evidence that you believe; [¶] 2. That supporting evidence is independent of the
accomplice’s (statement/[or] testimony); [¶] AND [¶] 3. That supporting evidence tends
to connect the defendant to the commission of the crime[s].”
17 Section 190.5, subdivision (b) provides: “The penalty for a defendant
found guilty of murder in the first degree, in any case in which one or more special

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to consider the factors set forth in Miller, supra, 132 S.Ct. at p. 2455, discussed ante, and,
therefore, his sentence violates the federal and state constitutional prohibitions against
cruel and unusual punishment. We disagree.
In sentencing Gallardo, the court acknowledged its discretion under section 190.5,
and stated that it had considered and weighed the Miller standards. In particular,
the court noted Gallardo’s age (16 years old at the time of the crimes), his mental and
developmental disabilities, and the absence of any prior criminal or juvenile delinquency
record. The court stated that it had read Gallardo’s sentencing memorandum, which
identifies the Miller factors and emphasizes Gallardo’s developmental disabilities.
The court also considered “the circumstances of the homicide offense” (Miller, supra,
132 S.Ct. at p. 2468, noting, in particular, that “the crime involved great violence with a
high degree of cruelty[,] viciousness, and callousness,” that Gallardo was armed and
used a weapon, that the victims were “particularly vulnerable” and “unsuspecting in their
home,” and that the “manner in which the crime was committed showed planning and
criminal sophistication.”
The record demonstrates that the court considered the Miller factors and acted
within its discretion in pronouncing an LWOP sentence.18
As we noted at the outset, our Supreme Court has directed us to reconsider
Gallardo’s appeal in light of Gutierrez, supra, 58 Cal.4th 1354. In Gutierrez, the
Supreme Court construed section 190.5, subdivision (b), as “confer[ring] discretion on
circumstances enumerated in Section 190.2 or 190.25 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.”
18 Gallardo’s abstract of judgment indicates that the court imposed a $300 parole
revocation fine pursuant to section 1202.45. He contends that the fine is unauthorized
because it may be imposed only when the sentence includes a period of parole. (See
§ 1202.45; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) The Attorney
General does not dispute the point, and we agree. We strike the fine.

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the sentencing court to impose either life without parole or a term of 25 years to life
on a 16- or 17-year-old juvenile convicted of special circumstance murder, with no
presumption in favor of life without parole.” (Gutierrez, supra, 58 Cal.4th at p. 1387,
italics added.) In doing so, the court expressly disapproved of the “prevailing authority”
that had construed section 190.5, subdivision (b), as establishing a presumption in favor
of LWOP. (Gutierrez, supra, 58 Cal.4th at pp. 1387, 1390 [disapproving of People v.
Guinn (1994) 28 Cal.App.4th 1130].) Because the trial courts in the two cases under
review in Gutierrez “dutifully applied the law as it stood at the time,” and the record did
not clearly indicate that the trial courts would have reached the same conclusion “had
they been aware of the full scope of their discretion,” the court remanded the cases for
resentencing. (Id. at pp. 1390-1391.)
The trial court in this case addressed the issue whether section 190.5,
subdivision (b) included a presumption of LWOP, and stated that “the court has some
discretion in the sentence, and . . . that the presumption is that the sentence should be life
without the possibility of parole.” Under Gutierrez, this statement is error and, if the
court had stopped there, resentencing would be required. The court, however, explained
further: “Even if there is no presumption though, the court does not find any just cause or
reason for the court to deviate from the sentence that the court will impose. The court
considered the mitigating factors versus the aggravating factors, as well as any factors
encouraged by [Gallardo’s counsel],” as well as the factors “in the Miller case.” “[E]ven
after weighing such factors,” the court concluded, Gallardo “still warrants . . . the
sentence of life with a minimum parole eligibility of 25 years” on each count. In light
of these statements, the record “ ‘clearly indicate[d]’ that the trial court would have
reached the same conclusion” even if the court did not interpret the statute as establishing
a presumption of LWOP. (Gutierrez, supra, 58 Cal.4th at p. 1391.) Therefore,
resentencing is not required.

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IV. Gallardo’s Habeas Petition
Gallardo contends that he was deprived of the effective assistance of counsel
because his attorney failed to request that the jury be instructed that it could consider
his mental impairment in determining whether he had the specific intent to kill. (See
CALCRIM No. 3428.) The standards concerning ineffective assistance are set forth
above in our discussion of Alvarez’s habeas petition and we incorporate them here.
CALCRIM No. 3428 provides in part: “You have heard evidence that the
defendant may have suffered from a mental [disease, defect, or disorder]. You may
consider this evidence only for the limited purpose of deciding whether, at the time of
the charged crime, the defendant acted [or failed to act] with the intent or mental state
required for that crime.”
Scott Johnson represented Gallardo at trial. In a declaration supporting Gallardo’s
habeas petition, Johnson stated that he considered requesting the instruction, but “for
tactical reasons based on the state of the evidence [he] concentrated [his] arguments on
the false confession/accessory after the fact and chose not to ask for that instruction.”
Gallardo’s habeas petition fails for two reasons. First, even if Johnson requested
the instruction, the evidence was insufficient to support the instruction. Substantial
evidence in this context is “evidence sufficient to ‘deserve consideration by the jury,’
not ‘whenever any evidence is presented, no matter how weak.’ ” (People v. Williams
(1992) 4 Cal.4th 354, 361.) Here, Gallardo did not present any substantial evidence
that he had a mental disease, defect, or disorder. Dr. Miora testified that Gallardo had
an I.Q. score of 57, which placed him “in the extremely low range of intellectual ability
consistent with those who have mild to moderate mental retardation.” Dr. Miora stated,
however, that “other criteria . . . would need to be met before a formal diagnosis
[of mental retardation] would be made.” On other tests, Gallardo performed well or
scored in the average range. Gallardo has not cited to any authority indicating that a
low I.Q. score or intellectual disability, without more, constitutes a mental disease,
defect, or disorder. He argues that People v. Larsen (2012) 205 Cal.App.4th 810

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is comparable. In Larsen, there was expert testimony that the defendant had Asperger’s
Syndrome, which the court described as “a recognized mental diagnosis that warrants a
mental disorder instruction.” (Id. at p. 825.) Here, by contrast, Dr. Miora made no
diagnosis of any mental disorder. The strongest opinion she could make is that his
extremely low I.Q. was consistent with mild or moderate mental retardation; she did not
opine that Gallardo had a mental disease, defect, or disorder. The evidence, therefore,
was insufficient to support giving CALCRIM No. 3428.
Second, even if the evidence was sufficient to support the instruction, Gallardo’s
trial counsel’s decision not to request the instruction was a reasonable tactical decision.
Gallardo’s primary defense was that Alvarez committed the murders and Gallardo falsely
confessed to protect Alvarez. Gallardo, his counsel argued, merely “help[ed] clean up
the mess after [Alvarez] and/or someone else killed her parents.” CALCRIM No. 3428 is
used in connection with a defense that the accused did not have the requisite mental state
when he or she committed the actus reus of the crime. It is not relevant to a defense
that someone else committed the crime. Gallardo’s trial counsel could have reasonably
determined that relying on CALCRIM No. 3428 as an alternative to his false confession
defense would reflect negatively on Gallardo and his credibility. The tactical decision to
focus on the false confession defense and forego the mental state defense, therefore, does
not constitute ineffective assistance.

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DISPOSITION
Our opinion filed March 29, 2016, and amended April 27, 2016 is vacated.
As to Alvarez, the portion of the judgment imposing and staying the true
findings on the lying-in-wait and multiple murder special circumstance allegations
under section 190.2, subdivision (a)(3) and (15) are stricken. The judgment is otherwise
affirmed. The matter is remanded to the trial court for the limited purpose of determining
whether Alvarez has been afforded an adequate opportunity to make a record of
information that will be relevant to the Board of Parole Hearings as it fulfills its statutory
duties in accordance with Penal Code sections 3051 and 4801 and, if not, to allow
Alvarez and the People an adequate opportunity to make such a record.
The judgment against Gallardo is affirmed with the exception of the parole
revocation fine, which is stricken.
Alvarez’s and Gallardo’s petitions for writ of habeas corpus are denied.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
JOHNSON, J.
LUI, J.

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