P. v. Fernandez

Filed 3/18/15 P. v. Fernandez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW ARCADO FERNANDEZ,
Defendant and Appellant.
B254191
(Los Angeles County
Super. Ct. No. TA123646)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Eleanor J. Hunter, Judge. Reversed in part and remanded for resentencing; otherwise
affirmed.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Michael
Katz, Deputy Attorneys General, for Plaintiff and Respondent.

-- 1 of 23 --

2
INTRODUCTION
A jury found defendant and appellant Matthew Arcado Fernandez guilty of first
degree murder and found true personal gun use and gang allegations. On appeal,
defendant contends that his pre-arrest detention violated the Fourth Amendment to the
United States Constitution; that the trial court improperly excluded evidence relevant to
self-defense; and that his 50-years-to-life sentence constitutes cruel and unusual
punishment because he was a juvenile when he committed the crime. We agree that
remand is necessary so the trial court can reconsider defendant’s sentence under the
Eighth Amendment, but we reject defendant’s remaining contentions.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.1
A. June 15, 2012: the murder of Benjamin Juarez.
On June 15, 2012, defendant shot and killed Benjamin Juarez. Juarez was found
on the ground in an alley near a white car having no license plate. No weapons were in
the car or on Juarez. Anthony Leon was with Juarez, but Leon did not witness the
shooting. Juarez had four gunshot wounds. Blood and casings indicated that Juarez was
shot while inside the car.
On the evening Juarez was killed, Lorena Toro was at home on South Washington
Avenue in Compton. Hermenegildo Rojas lived across the street from Toro, and Toro
knew Rojas, as well as defendant, Joseph Hodge, and Rigoberto Haro. Toro heard five
gunshots sometime before 8:00 p.m. Looking outside, Toro saw defendant and Haro
running to Rojas’s house at 15521 South Washington Avenue. Rojas was walking behind
defendant and Haro. Hodge was at Rojas’s gate. Haro said, “ ‘We got him. We got
him.’ ” Although Toro did not see a weapon, Haro “had something” “like holding
down.”
1 We do not discuss in depth, for example, DNA and other forensic evidence linking
defendant and his codefendants to the crime, because defendant conceded he shot the
victim, albeit in self-defense, and because they are not necessary to a resolution of the
issues on appeal.

-- 2 of 23 --

3
Around this time, Deputy Miguel Fuentes responded to a call of an “assault with a
deadly weapon, gunshot victim at the scene.” After being directed to the 15500 block of
South White Avenue (the area behind Rojas’s house), a woman made eye contact with
the deputy and pointed west. Based on information the woman gave the deputy, he
looked for three male Hispanics. The deputy then saw three male Hispanics—defendant,
Haro, and Hodge—arguing with a woman. She appeared to be telling the men to leave
her property. The men, however, turned toward the rear of the property, and then
defendant and Haro sat on a bench in front of the house. The deputy detained the men.
Although no weapons were found on any of the men, including defendant, the gun
used to kill Juarez was recovered from Rojas’s backyard.
B. Defendant’s and codefendants’ statements.
After they were arrested, defendant and his codefendants were in a patrol car,
where their conversations were surreptitiously recorded. They made numerous
incriminating statements about, for example, hiding the gun and defendant shooting
Juarez. Hodge told Haro, for example, that “I think [defendant] Spooky shot in the
head[,] dawg. . . . First shots were like in the head, pow, pow.”
Defendant admitted he was the shooter:
“That nigga from CG that nigga was tatted fool on his hand like in his face, on top
of his eyebrows he has ‘Chicano Ganga.’ That’s why when I pulled up, fool I looked and
I’m like he looked like a rocker fool and I was like, hey fool, ‘Where you from?’ He’s
like, ‘What?’ And that fool tried to get off the car and fuck you nigga.” “I just started
poppin’ that nigga and I don’t––and I ran dude fuck that.”
“Yeah. The fuckin’ driver got off. I guess he went to the house. When I looked
I’m like what the fuck and he kept lookin’ back fool like that. That’s when I pulled up on
him and with my hoodie on, I was like, ‘Where you from?’ And then he goes like, he
looked at me like dogging me fool and I looked at his eyes like, ‘Chicano ganga,’ and I
was like, that fool tried to get off the car, maybe try to face me, ‘What?’ And I was like
hey nigga. Fuck you!”

-- 3 of 23 --

4
“Hey, I think I shot that nigga in the nuts fool.” “I, I only aimed for his dome fool
like, when I saw him turn around this way, I just started shooting him like (inaudible). I
know I shot him right here. I know I got him right here (inaudible).” “I don’t know if he
was dead (inaudible) four shots from up close.”
C. Gang evidence.
Detective Joseph Sumner of the Los Angeles County Sheriff’s Department
testified as a percipient witness (he assisted in arresting defendant, Hodge, Haro, and
Rojas) and as a gang expert for the People. Compton Varrio Setentas (CV-70) is a
Hispanic gang in Compton, and its members include defendant (Spooky), Haro (Indio),
Hodge (Beast), and Rojas (Rage).2 Rojas’s house on South Washington Avenue is a CV-
70 hangout. CV-70 claims the area Juarez was killed in. Juarez (Whisper) was an active
member of Chicano Gang, a rival of CV-70. The territories claimed by the two gangs
overlap.
Based on a hypothetical modeled on the facts of the case, it was the detective’s
opinion that the crime was committed for the benefit of, in association with, or at the
direction of a criminal street gang.
D. Defense case.
Between 4:00 p.m. and 5:00 p.m. on the day Juarez was murdered, three men went
to Rojas’s house and argued with Rojas. The men left but said they would be back.
Defendant testified that, on June 15, 2012, he received a phone call telling him to
watch out for rivals in the area. Defendant went to Rojas’s house, where he learned that
three gang members had told Rojas there would be consequences if Rojas left the house.
While at Rojas’s house, defendant saw a white car with no license plate go by three
times. People inside the car threw gang signs.
Defendant waited for the car to leave before leaving Rojas’s house with Haro and
Hodge. While on their way to a friend’s house, they took a shortcut through an alley,
trying to avoid the people in the car. Defendant, however, was startled by a voice calling
2 Defendant testified that he is a CV-70 gang member.

-- 4 of 23 --

5
from a parked car, “ ‘Fuck the ho’s,’ ” which was a disrespectful way to refer to CV-70.3
Defendant, who could see “CVCG” tattooed on Juarez’s face, asked Juarez where he was
from. Juarez said, “ ‘What?’ ” With one hand Juarez tried to open the car door, and he
held a gun in the other. Defendant’s friend said, “ ‘gun.’ ” Scared he would be shot,
defendant, who had been shot the year before, pulled out his gun and pulled the trigger.4
Defendant had never “run into” Juarez before, but he knew of him, specifically,
that his moniker was Whisper and that Juarez “[p]retty much got out of prison, was trying
to make his presence into the neighborhood again.” Juarez was known to be a “[v]iolent
guy.”
II. Procedural background.
Defendant, Haro, Hodge, and Rojas were jointly tried by one jury. On
September 16, 2013, the jury found defendant guilty of first degree murder (Pen. Code,
§ 187, subd. (a))5 and found true personal gun use (§ 12022.53, subd. (d)) and gang
(§ 186.22, subd. (b)(1)(C)) allegations. The jury hung as to Haro, Hodge, and Rojas, and
the trial court declared a mistrial as to them.
On February 5, 2014, after denying defendant’s request to have a “full-blown”
sentencing hearing under the Eighth Amendment, the trial court sentenced defendant to
50 years to life (25 years to life for the murder plus 25 years to life for the gun
enhancement). The court also sentenced defendant to a concurrent 15 years to life for the
gang enhancement.
3 According to Haro, he replied to Juarez by saying, “ ‘Fuck chi-chi’s.’ ” Haro saw
a gun in the car and ran.
4 Defendant began to carry a gun after he was shot.
5 All further undesignated statutory references are to the Penal Code.

-- 5 of 23 --

6
DISCUSSION
I. The motion to suppress.
Before trial, defendant moved to suppress evidence,6 under section 1538.5, on the
ground his detention violated the Fourth Amendment.7 We find that the trial court
properly denied the suppression motion.
A. Testimony at the suppression hearing.
Deputy Fuentes testified at the suppression hearing in conformity with his later
trial testimony. On June 15, 2012, at approximately 7:52 p.m., the deputy, who was in a
marked police car and wearing a uniform, responded to a call of assault with a deadly
weapon and a gunshot victim. “It might have been broadcasted” that the suspects were
multiple male Hispanics. The deputy was initially directed to South Washington Avenue
and East Myrrh Avenue, but he was redirected to the 15500 block of South White
Avenue, which was behind 15521 South Washington Avenue, a location of interest.
Within five to six minutes of the dispatch call, a woman on the street told the deputy that
three male Hispanics ran “ ‘that way,’ ” toward South Butler Avenue.8
The deputy proceeded to South Butler Avenue, where he saw three male Hispanics
(defendant, Hodge, and Haro) standing near the rear of a house, arguing with a Black
woman. The woman was “agitated,” and she asked the men to leave her property. She
aggressively pointed to the street. The men “appeared to be nervous. They couldn’t
stand still.” Defendant and Haro sat on a bench to give, thought the deputy, the
appearance they were visitors.
Deputy Fuentes got out of his patrol car, and the woman continued to direct the
men to the street. It appeared to the deputy that the men did not want to walk toward
6 Defendant moved to suppress his conversations with codefendants, his statements
to the police, statements made by witnesses at the field lineup, the results of any GSR
testing, the gun, and any other evidence that was the “fruit” of defendant’s detention.
7 Defendant raised this issue in a motion for new trial, which was denied.
8 At the preliminary hearing, Deputy Fuentes testified that the woman made eye
contact with him and pointed in a westbound direction from the property.

-- 6 of 23 --

7
him. Defendant and Haro walked toward the deputy, but Hodge continued to talk to the
woman. The deputy, believing that the men might be involved in the assault, told them to
come to him and to lie down.
Based on this testimony, the trial court found that there was a “crime broadcast”
involving a gun. When the deputy was directed to the location, a woman told him three
male Hispanics ran towards Butler, where the deputy saw three male Hispanics engaged
in a heated “discussion” with a woman who was angrily pointing to the street. The men
were “nervous” and “looking in different directions.” The court concluded: “That
certainly, under the circumstances, taken in totality of what happened, factors in. At that
point I do believe there was a reasonable suspicion that these individuals might have been
involved. [¶] On top of that, you look at how the defendants were acting, that the officer
described them as being nervous, that they were looking in different directions. At one
point they even faced the opposite way, like they were––you know, towards going back
the way they came. One of the individuals didn’t come out right away; it was––I think
Mr. Hodge didn’t come out right away when the officer commanded him to come out.
[¶] So based on the totality of the circumstances, the suspicious behavior of the
individuals, them matching up the general description of the people involved, the court is
going to find there was [a] reasonable suspicion of criminal activity and the officer was
justified in detaining them and doing further investigation.”
B. The detention did not violate the Fourth Amendment.
The Fourth Amendment guarantees the right to be free of unreasonable searches
and seizures, including brief investigatory stops, by law enforcement personnel. (U.S.
Const., 4th Amend.; People v. Souza (1994) 9 Cal.4th 224, 229.) A detention, however,
will not violate the Fourth Amendment “when the detaining officer can point to specific
articulable facts that, considered in light of the totality of the circumstances, provide
some objective manifestation that the person detained may be involved in criminal
activity.” (Souza, at p. 231; see also Terry v. Ohio (1968) 392 U.S. 1, 21-22; In re Tony
C. (1978) 21 Cal.3d 888, 893.) An “investigative stop or detention predicated on mere

-- 7 of 23 --

8
curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete
good faith. [Citation.]” (Tony C., at p. 893.)
We evaluate challenges to the admissibility of a search or seizure solely under the
Fourth Amendment. (People v. Carter (2005) 36 Cal.4th 1114, 1141; People v. Robinson
(2010) 47 Cal.4th 1104, 1119; People v. Souza, supra, 9 Cal.4th at p. 233.) When
reviewing the denial of a suppression motion, we defer to the trial court’s express or
implied factual findings if supported by substantial evidence, but exercise our
independent judgment to determine whether, on the facts found, the search or seizure was
reasonable under the Fourth Amendment. (People v. Lomax (2010) 49 Cal.4th 530, 563;
People v. Redd (2010) 48 Cal.4th 691, 719.)
The facts found by the trial court here support defendant’s detention under the
Fourth Amendment. Specifically, Deputy Fuentes received a call of an assault involving
a gun. That call might have described the suspects as three male Hispanics. Near the
crime scene, a woman told the deputy that three male Hispanics ran toward Butler. On
Butler, the deputy saw three male Hispanics, including defendant, arguing with a woman
who was telling them to get off her property. The men looked “nervous” and appeared to
want to avoid the deputy. (See, e.g., Illinois v. Wardlow (2000) 528 U.S. 119, 124
[nervous, evasive behavior is a pertinent factor in determining reasonable suspicion].)
The totality of these circumstances objectively support a conclusion that the men had
trespassed on woman’s property to hide, because they were involved in the recent
shooting.
Defendant, however, analyzes the evidence in isolation, instead of viewing the
totality of the circumstances. (People v. Souza, supra, 9 Cal.4th at p. 227 [lawfulness of
a temporary detention “depends not on any one circumstance viewed in isolation, but
upon the totality of the circumstances”].) He therefore points out, for example, that a
person’s “presence in an area of expected criminal activity, standing alone, is not enough
to support a reasonable, particularized suspicion that the person is committing a crime.”
(Illinois v. Wardlow, supra, 528 U.S. at p. 124; see also Souza, at pp. 240-241.) But
defendant was not in an area of “expected criminal activity”; he was in an area where a

-- 8 of 23 --

9
serious crime involving a gun had very recently occurred. Defendant also argues that the
description of the suspects—three male Hispanics—was too vague to justify his
detention. (In re Tony C., supra, 21 Cal.3d at p. 898 [description of burglary suspects as
“ ‘three male [B]lacks’ ” was too vague to support detention of two Black minors].) But
the description of the suspects here was possibly in the crime broadcast and the woman
on the street told Deputy Fuentes that three male Hispanics went “that way.” Following
the woman’s direction, the deputy saw three male Hispanics behaving suspiciously. The
description of the suspects was therefore accompanied by information about the suspects’
location. In any event, the detention was not based solely on the suspects’ description. It
was based on defendant’s presence in an area where a serious crime had just occurred; his
nervous, evasive behavior; and defendant and his companions were being told to leave a
woman’s property. (See, e.g., Illinois, at pp. 124-125 [the defendant’s presence in a high
crime area coupled with his flight upon seeing police officers gave rise to a reasonable
suspicion he was involved in criminal activity].)
Defendant also analogizes this case to Florida v. J. L. (2000) 529 U.S. 266. In
Florida, the police received an anonymous phone call that a young Black man wearing a
plaid shirt at a specific bus stop had a gun. (Id. at p. 268.) At the bus stop, officers saw
three Black males, one of whom wore a plaid shirt, “ ‘just hanging out.’ ” (Ibid.) Based
on the anonymous tip alone, the officers detained and frisked the men and found a gun on
J. L., who wore the plaid shirt. Because the anonymous tip was unaccompanied by any
“indicia of reliability,” Florida found that the stop and frisk of J. L. violated the Fourth
Amendment. (Id. at p. 274.)
Florida is distinguishable. The detention here was not based on an anonymous
tip. The woman who told Deputy Fuentes which way “three male Hispanics” went was
“anonymous” only in the sense that the deputy did not get her name. But even if we
assumed that the woman provided an “anonymous tip,” it had sufficient indicia of
reliability. The deputy had just received a broadcast that an assault with a gun had
occurred in the area, and that broadcast might have said that the suspects were three male
Hispanics. Immediately after the “anonymous” woman told the deputy that three male

-- 9 of 23 --

10
Hispanics went “that way,” the deputy saw three male Hispanics. Unlike the defendant in
Florida who was not acting suspiciously, defendant here was “nervous” and arguing with
a woman and refusing to leave a woman’s property. (See also People v. Dolly (2007) 40
Cal.4th 458 [anonymous 911 tip contemporaneously reporting an assault with a firearm
and accurately describing the perpetrator, his vehicle, and its location was sufficient to
justify investigatory detention].) Any anonymous tip was therefore corroborated and
bore indicia of reliability.
We therefore conclude that defendant’s detention was reasonable under the Fourth
Amendment.
II. Exclusion of evidence concerning the victim’s reputation.
Defendant contends that the trial court restricted his ability to introduce evidence
of Juarez’s reputation for violence, thereby depriving defendant of his constitutional
rights to confront and cross-examine witness, to due process of law, and to a fair trial.
(U.S. Const., 6th & 14th Amends; Cal. Const., art. I, § 15.) We disagree.
A. Additional background.
Before trial, defendant moved to introduce evidence of Juarez’s prior arrest for
gun possession. Defense counsel represented that Juarez had a reputation for carrying
guns, and, on the day Juarez was killed, Juarez went to Rojas’s house looking for CV-70
gang members. Later the same day, Juarez returned to the area. Defendant went to see
what Juarez was up to, and, at that point, defendant saw a gun and, fearing for his life,
shot Juarez. Defense counsel argued that Juarez’s prior arrest for gun possession was
therefore relevant to defendant’s state of mind and to self-defense. The trial court
sustained the prosecutor’s objection to the evidence for the purposes of opening statement
but took the issue under submission to see how the evidence “unfold[ed].”
Defense counsel raised the issue again, during Detective Sumner’s expert gang
testimony for the prosecution. The defense wanted to ask the detective about Juarez’s
“arrest history,” because it went to defendant’s “state of mind and his hypervigilance
during this two-year feud which the detective indicates in his report existed between”
Chicano Gang (Juarez’s gang) and CV-70 (defendant’s gang). The trial court sustained

-- 10 of 23 --

11
an objection “with regard to the victim’s criminal history.” But when defense counsel
said that defendant would testify, the court agreed defendant could testify about what was
going on in the neighborhood and how he feared people.
During cross-examination, Detective Sumner testified that Juarez was an “active
member,” although not an “O.G.” of Chicano Gang. Juarez was “doing work.” When
defense counsel asked what “areas of activity” Juarez’s gang “engages in,” the trial court
sustained a relevance objection to the question, as well as to the question, “What kind of
work would he be putting in?” Detective Sumner then agreed that gangs have guns that
they pass to each other, but when defense counsel asked if Chicano Gang operates the
same way, the trial court sustained a relevance objection (although the court did not strike
the detective’s answer: “Yes”).
Defendant thereafter testified he did not know Juarez, but he had heard Juarez
was a “violent guy.” The defense then informed the trial court it would call Detective
Sumner and ask what work Juarez put in for the gang; what was Juarez’s reputation
(including prior arrests and convictions); whether, hypothetically, fellow gang members
will remove guns; and whether a gang member recently out of prison will put in work to
reestablish his good standing in the gang. This evidence, the defense argued,
corroborated defendant’s testimony that Juarez had a reputation for carrying concealed
weapons.
The prosecution objected to the evidence and pointed out that Detective Sumner
was not Juarez’s arresting officer. Although defense counsel argued that the detective, as
an expert, could rely on hearsay, the trial court found it was improper to introduce
Juarez’s rap sheet through Detective Sumner: “[T]hat’s kind of twisting with regard to
how an expert can use hearsay. In fact, it’s really not offered for its truth; it’s just to
formulate the basis of their opinion with regard to, you know, a disease or gangs, . . . [¶]
But here you are just asking him to read off, and then you will argue, ‘He’s a guy that
has’––you know, ‘has a bunch of convictions for guns.’ That’s basically why you’re
using it. So I don’t think that’s appropriate.” The court also said it was “aware of
[Evidence Code section] 1103,” but it was simply “saying the vehicle in which you

-- 11 of 23 --

12
present it has to be the appropriate vehicle.” The court recognized that “evidence of that
nature does come in, but it has to be the proper vehicle . . . .” So long as a proper
foundation was made, the court agreed that the detective could be asked about Juarez.
Detective Sumner then testified that he had five to ten contacts with Juarez, who
was in the company of other gang members. Because the detective did not handle
Juarez’s cases, the detective could not speak to Juarez’s specific gang activities. But
Juarez’s gang engaged in the same criminal activities as CV-70, including burglaries,
robberies, weapon and narcotics sales, and assaults. In the detective’s expert opinion,
Juarez was engaged in those activities.
B. Defendant’s constitutional rights were not violated by any exclusion of
evidence concerning Juarez’s criminal history.
“ ‘Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity
to present a complete defense.” ’ ” (Holmes v. South Carolina (2006) 547 U.S. 319, 324;
see also Crane v. Kentucky (1986) 476 U.S. 683, 690; Chambers v. Mississippi (1973)
410 U.S. 284, 294.) Although this right can be abridged by evidence rules that infringe
on the weighty interest of the accused and are arbitrary or disproportionate to the
purposes they are designed to serve (Holmes, at p. 324), the ordinary rules of evidence
generally do not impermissibly infringe on the accused’s right to present a defense (id. at
pp. 326-327; People v. Lucas (2014) 60 Cal.4th 153, 270; People v. Cornwell (2005) 37
Cal.4th 50, 82, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22).
Here, we disagree with defendant’s premise that the trial court limited his ability
to cross-examine Detective Sumner about, for example, Chicano Gang’s activities, the
work Juarez put in for his gang, and Juarez’s reputation. The court ruled that defense
counsel could ask Detective Sumner about Juarez’s gang and Juarez’s reputation, if a
proper foundation was established. And, although the court initially sustained objections
to defense questions about Juarez’s gang and what Juarez did in the gang, the defense

-- 12 of 23 --

13
was later permitted to ask these questions. Detective Sumner thus testified he didn’t
know what Juarez specifically did for the gang, but he believed that Juarez engaged in
burglaries, robberies, weapons and narcotics sales, and assaults.9 The detective said that
Juarez, also known as “Whisper,” was an “active” member of the Chicano Gang, a rival
of CV-70. The detective also testified on direct examination that a “hood gun” was a gun
passed around by gang members, “depending on who needs it.” He agreed that gang
members “back” each other up by getting rid of gun evidence. Defense counsel therefore
was not precluded from asking about the activities of Juarez’s gang, the work Juarez put
in for the gang, and whether Chicano Gang passed guns around like other gangs.
We also disagree that defendant was not allowed to introduce Juarez’s arrest
history, which included arrests or convictions on gun-related charges.10 The court ruled
that Detective Sumner—who did not arrest Juarez—could not testify about Juarez’s “rap
sheet.” The court did not rule that those arrests or Juarez’s criminal history were
inadmissible. Instead, the court agreed that Juarez’s reputation was relevant but was
concerned with how defense counsel intended to get evidence about reputation from
Detective Sumner: “That’s why I asked what the personal knowledge of Detective
Sumner was. That’s what my issue was. I just need an offer of proof of how you get
there, as opposed to just reading off a rap sheet. That’s not going to happen. [¶] So I
have no dispute about the end result, that, yes, I recognize that evidence of that nature
does come in, but it has to be the proper vehicle . . . .” The court therefore said that
Juarez’s criminal history and reputation could come in; defendant was simply not allowed
9 The detective’s testimony is vague, but it can be interpreted to include a statement
that Juarez’s gang also engaged in weapon possession.
10 The record is unclear, but it appears that Juarez had a 2004 conviction for shooting
at an inhabited building or car, a 2005 conviction for having a concealed weapon, and a
2006 conviction for being a felon in possession of a firearm.

-- 13 of 23 --

14
to have the detective, who had no personal knowledge of that history, read Juarez’s rap
sheet into evidence.11
Defendant, however, argues that Detective Sumner “could review the rap sheet in
forming an expert opinion as to Juarez’s reputation for gun possession.” (See generally
People v. Gardeley (1996) 14 Cal.4th 605, 618 [expert testimony may be premised on
material not admitted into evidence if “it is material of a type that is reasonably relied
upon by experts in the particular field in forming their opinions” and the expert “can,
when testifying, describe the material that forms the basis of the opinion”]; Evid. Code,
§§ 801, 802.) The detective could have relied on Juarez’s criminal history to support an
opinion, for example, that Juarez was a gang member. But that is different than asking
the detective to extrapolate a specific reputation in the community for gun possession
from Juarez’s arrests, in the absence of the detective’s personal knowledge about Juarez’s
reputation in the community.
In any event, Juarez’s prior gun-related arrests or convictions had limited
probative value. They did not, for example, go to defendant’s state of mind. Defendant
did not testify he knew that Juarez had prior arrests or convictions for gun possession. In
fact, it is not clear that defendant personally knew Juarez. (See, e.g., People v. Tafoya
(2007) 42 Cal.4th147, 164-165 [evidence that witness was dangerous was relevant to
defendant’s claim of self-defense only if defendant knew of witness’s reputation for
11 Indeed, it is not clear that defense counsel wanted to introduce Juarez’s rap sheet.
Defense counsel said he was not planning to ask Detective Sumner “to read off the rap
sheet. I’m just going to ask him, ‘Is he a gang member?’ ‘Is he an active gang member?’
‘Did you have contacts with him?’ ‘In your expert opinion, when you say’ . . . ‘that he’s
active, putting in work, and in your expert opinion, what do you mean by that?’ ” The
trial court had no problem with these questions: “I don’t believe it’s objectionable with
regard to having Detective Sumner––especially since he is a detective that has been
around a long time, and he certainly is familiar with CV-70’s, but he also indicated on
cross-examination he was familiar with the victim’s gang, and I think that he can––a
proper foundation certainly can be made with regard to his––maybe knowing about . . .
the victim . . . and with regard to what [defense counsel] had just indicated. [¶] So I have
no problem with that. I had more of an issue with him just reading the rap sheet.”
(Italics added.)

-- 14 of 23 --

15
dangerousness and was afraid of him].) Rather, defendant testified he had never “run
into” Juarez but had merely heard of Juarez’s “violent” character. Defendant also did not
testify that he recognized Juarez as the person he had heard about before shooting him.
Juarez’s alleged penchant for carrying guns was therefore irrelevant to defendant’s state
of mind.12
Evidence of Juarez’s criminal history might have buttressed defendant’s testimony
he shot Juarez because Juarez had a gun.13 But this issue, at its core, was one about the
nature of gangs. Detective Sumner adequately addressed that issue. He testified, for
example, about the importance of reputation in a gang and about different gang concepts,
such as putting in work. He also specifically testified about the rivalry between Juarez’s
and defendant’s gangs; that Juarez’s gang was involved in criminal activities; that Juarez
was a member of Chicano Gang with gang tattoos on his face; and that Leon, Juarez’s
companion near the time of his death, was also a member of Chicano Gang. Detective
Sumner testified to his belief that Juarez was an active member of Chicano Gang and was
involved in, among other things, sales of weapons. The detective’s testimony therefore
buttressed defendant’s testimony that Juarez was a “violent guy” who had “got out of
prison [and] was trying to make his presence into the neighborhood again.”14
12 We note that the jury was instructed to consider, when deciding whether
defendant’s beliefs were reasonable, “ ‘all the circumstances as they were known to and
appeared to the defendant and consider what a reasonable person in a similar situation
with similar knowledge would have believed. If the defendant’s beliefs were reasonable,
the danger does not need to have actually existed.’ ” The jury was also instructed: “If
you find that defendant knew that the victim had threatened others in the past, you may
consider that information in deciding whether the defendant’s conduct and beliefs were
reasonable.”
13 Defendant’s testimony that he saw Juarez with a gun was corroborated by Haro,
who saw a gun in Juarez’s car.
14 Evidence Code section 1103, subdivision (a)(1), permits a defendant to “offer[]
evidence regarding the character or trait of a victim ‘to prove conduct of the victim in
conformity with the character or trait of character.’ ” (People v. Gutierrez (2009) 45
Cal.4th 789, 827.)

-- 15 of 23 --

16
Therefore, to the extent defendant wanted to establish that Juarez and Juarez’s
gang had a reputation for violence, defendant had that opportunity. Defendant was not
deprived of his constitutional rights to, for example, a fair trial and to present a defense.
(See generally People v. Gonzales (2012) 54 Cal.4th 1234, 1258-1259 [exclusion of
evidence that the defendant’s wife had a family history of child abuse did not violate the
defendant’s right to present a defense]; People v. Ayala (2000) 23 Cal.4th 225, 269 [the
defendant did not have either a constitutional or a state law right to present exculpatory
but unreliable hearsay evidence inadmissible under any statutory exception to the hearsay
rule]). And even if we did agree that Juarez’s rap sheet should have been introduced into
evidence, this would still not be one of those rare cases where evidentiary error under
state law violates due process by rendering the trial “fundamentally unfair,” given that
Juarez’s gang’s criminal activities were before the jury. (People v. Partida (2005) 37
Cal.4th 428, 436 [absent fundamental unfairness, state law error in admitting evidence is
subject to the test in People v. Watson (1956) 46 Cal.2d 818; namely, whether it is
reasonably probable the verdict would have been more favorable to the defendant absent
the error].)
III. Cruel and unusual punishment.
Defendant was 17 years old when he killed Juarez. For his crime, defendant was
sentenced to 50 years to life. (See generally § 190, subd. (a) [every person guilty of first
degree murder shall be punished by death, life without possibility of parole (LWOP) or a
term of 25 years to life]; § 12022.53, subd. (d) [any person who personally discharges a
firearm proximately causing great bodily injury shall be punished by a consecutive term
in prison of 25 years to life].) Defendant contends that his sentence is cruel and unusual
under the Eighth Amendment.15 Because the trial court failed to consider this issue, we
find that remand is proper.
15 Defendant filed a sentencing memorandum that argued he could not be sentenced
to more than 25 years to life under the Eighth Amendment.

-- 16 of 23 --

17
In recent years, the United States Supreme Court and our California Supreme
Court have limited the punishment available for juvenile offenders: namely, the death
penalty may not be imposed on juvenile offenders (Roper v. Simmons (2005) 543 U.S.
551); LWOP may not be imposed on juveniles who commit nonhomicide offenses
(Graham v. Florida (2010) 560 U.S. 48); mandatory LWOP may not be imposed on a
juvenile offender (Miller v. Alabama (2012) __ U.S. __ [132 S.Ct. 2455] (Miller)); and a
de facto LWOP sentence may not be imposed on a juvenile nonhomicide offender
(People v. Caballero (2012) 55 Cal.4th 262 (Caballero)).
The People argue that defendant falls outside Roper and its progeny, because he
committed a homicide and was not technically sentenced to LWOP. Miller, however,
forbids a mandatory LWOP sentence for any juvenile offender, not just nonhomicide
offenders, in the absence of the sentencing court’s consideration of certain factors:
“Mandatory life without parole for a juvenile precludes consideration of his
chronological age and its hallmark features—among them, immaturity, impetuosity, and
failure to appreciate risks and consequences. It prevents taking into account the family
and home environment that surrounds him—and from which he cannot usually extricate
himself—no matter how brutal or dysfunctional. It neglects the circumstances of the
homicide offense, including the extent of his participation in the conduct and the way
familial and peer pressures may have affected him. Indeed, it ignores that he might have
been charged and convicted of a lesser offense if not for [the] incompetencies associated
with youth—for example, his inability to deal with police officers or prosecutors
(including on a plea agreement) or his incapacity to assist his own attorneys. [Citations.]
And finally, this mandatory punishment disregards the possibility of rehabilitation even
when the circumstances most suggest it.” (Miller, supra, __ U.S. at p. __ [132 S.Ct. at
p. 2468]; see also id. at p. 2469.)
True, defendant’s 50-years-to-life sentence is not technically a LWOP sentence.
But Caballero extended Miller’s reasoning and found that a juvenile nonhomicide
offender’s 110-years-to-life sentence, although not technically LWOP, was its functional
equivalent, and therefore unconstitutional. “Although the state is by no means required

-- 17 of 23 --

18
to guarantee eventual freedom to a juvenile convicted of a nonhomicide offense, Graham
holds that the Eighth Amendment requires the state to afford the juvenile offender a
‘meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation,’ and that ‘[a] life without parole sentence improperly denies the juvenile
offender a chance to demonstrate growth and maturity.’ [Citation.]” (Caballero, supra,
55 Cal.4th at p. 266.)
Miller and Caballero may be read to prohibit imposition of a mandatory LWOP
sentence or its functional equivalent on any juvenile homicide or nonhomicide offender,
without first considering the factors Miller found relevant to punishment. (See, e.g.,
People v. Lewis (2013) 222 Cal.App.4th 108, 119 [115 years to life is a de facto LWOP
sentence]; People v. Thomas (2012) 211 Cal.App.4th 987, 1013-1016 [196-years-to-life
sentence imposed on juvenile was reversed and remanded for the trial court to exercise its
discretion in light of Miller]; People v. Argeta (2012) 210 Cal.App.4th 1478, 1480-1482
[remanding for resentencing in a manner consistent with Caballero and Miller, where
juvenile was convicted of a homicide offense and sentenced to 100 years]; People v.
Mendez (2010) 188 Cal.App.4th 47, 62-68 [84-years-to-life sentence is a de facto LWOP
sentence].)
Defendant’s 50-years-to-life sentence is certainly less than the 110 years to life
that the juvenile was sentenced to in Caballero. And, according to the People’s
calculations, defendant will be eligible for parole when he is approximately 67 years old,
before his life expectancy of 71.7 or 76 years. (See, e.g., People v. Mendez, supra, 188
Cal.App.4th at pp. 62-63.) That defendant might be eligible for parole some years before
his life expectancy, however, does not give him a meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation (Graham v. Florida, supra,
560 U.S. at pp. 73-75), and his 50-years-to-life sentence “disregards the possibility of
rehabilitation even when the circumstances most suggest it” (Miller, supra, __ U.S. at
p. __ [132 S.Ct. at p. 2468]). Under Miller and Caballero, defendant’s sentence may
therefore be the functional equivalent of LWOP.

-- 18 of 23 --

19
The People respond that section 3051 fixes any Eighth Amendment problem.
With certain exceptions inapplicable here, the law, which became effective on January 1,
2014, guarantees juvenile offenders the right to a “youth offender parole hearing.”
(§ 3051, subd. (a)(1).) The date of the parole hearing depends on the length of the
juvenile’s sentence. Juveniles, like defendant, sentenced to an indeterminate base term of
25 years to life are entitled to a parole hearing during the 25th year of their incarceration.
(§ 3051, subd. (b)(3).)
Courts disagree whether section 3051 addresses Miller’s concerns. (People v.
Solis (2014) 224 Cal.App.4th 727, review granted June 11, 2014, S218757 [modifying
the juvenile defendant’s 50-years-to-life sentence to include a minimum parole eligibility
date of 25 years]; In re Heard (2014) 223 Cal.App.4th 115, review granted Apr. 30,
2014, S216772 [section 3051 does not alleviate the constitutional concerns about a
juvenile offender’s sentence]; People v. Garrett (2014) 227 Cal.App.4th 675, review
granted Sept. 24, 2014, S220271 [same]; People v. Hernandez (2014) 232 Cal.App.4th
278 [same]; In re Wilson (2015) 233 Cal.App.4th 544 [same]; but see People v. Gonzalez
(2014) 225 Cal.App.4th 1296, 1307, review granted July 23, 2014, S219167 [§ 3051
cures the Eighth Amendment problem]; accord, People v. Saetern (2014) 227
Cal.App.4th 1456, review granted Oct. 1, 2014, S220790.) The issues raised in these
cases and this appeal are currently on review.16
Our California Supreme Court provided some guidance on these problems in
People v. Gutierrez (2014) 58 Cal.4th 1354, 1379 (Gutierrez)). In Gutierrez, LWOP
sentences were imposed on two 17-year-old defendants under section 190.5, subdivision
(b), which had been construed to create a presumption in favor of LWOP sentences for
special circumstance murders committed by 16- and 17-year-old offenders. (Gutierrez, at
p. 1379.) Interpreting section 190.5, subdivision (b), to harmonize with the Eighth
16 In re Alatriste (2013) 220 Cal.App.4th 1232, review granted Feb. 19, 2014,
S214652, consolidated with In re Bonilla, review granted Feb. 19, 2014, S214960;
People v. Franklin (2014) 224 Cal.App.4th 296, review granted June 11, 2014, S217699.

-- 19 of 23 --

20
Amendment, Gutierrez found that trial courts have discretion to sentence juvenile
offenders to serve 25 years to life or LWOP with no presumption in favor of LWOP.
(Gutierrez, at pp. 1371-1379.)
In so holding, Gutierrez considered the recent enactment of section 1170,
subdivision (d)(2), on LWOP sentences for juvenile offenders. Section 1170 allows
youthful offenders to petition the court to recall their LWOP sentences after serving 15
years, and, if then unsuccessful, at subsequent designated times. (§ 1170, subd. (d)(2).)
Gutierrez rejected the Attorney General’s argument that section 1170, subdivision (d)(2),
“removes life without parole sentences for juvenile offenders from the ambit of Miller’s
concerns because the statute provides a meaningful opportunity for such offenders to
obtain release.” (Gutierrez, supra, 58 Cal.4th at p. 1386.) Gutierrez noted that “Graham
spoke of providing juvenile offenders with a ‘meaningful opportunity to obtain release’
as a constitutionally required alternative to—not as an after-the-fact corrective for—
‘making the judgment at the outset that those offenders never will be fit to reenter
society.’ [Citation.] Likewise, Miller’s ‘cf.’ citation to the ‘meaningful opportunity’
language in Graham occurred in the context of prohibiting ‘imposition of that harshest
prison sentence’ on juveniles under a mandatory scheme. [Citation.] Neither Miller nor
Graham indicated that an opportunity to recall a sentence of life without parole 15 to 24
years into the future would somehow make more reliable or justifiable the imposition of
that sentence and its underlying judgment of the offender’s incorrigibility ‘at the outset.’
[Citation.] [¶] Indeed, the high court in Graham explained that a juvenile offender’s
subsequent failure to rehabilitate while serving a sentence of life without parole cannot
retroactively justify imposition of the sentence in the first instance: ‘Even if the State’s
judgment that Graham was incorrigible were later corroborated by prison misbehavior or
failure to mature, the sentence was still disproportionate because that judgment was made
at the outset.’ [Citation.] By the same logic, it is doubtful that the potential to recall a
life without parole sentence based on a future demonstration of rehabilitation can make
such a sentence any more valid when it was imposed. If anything, a decision to recall the
sentence pursuant to section 1170(d)(2) is a recognition that the initial judgment of

-- 20 of 23 --

21
incorrigibility underlying the imposition of life without parole turned out to be erroneous.
Consistent with Graham, Miller repeatedly made clear that the sentencing authority must
address this risk of error by considering how children are different and how those
differences counsel against a sentence of life without parole ‘before imposing a particular
penalty.’ [Citations.]” (Gutierrez, at pp. 1386-1387.)
Although section 3051, like section 1170, subdivision (d)(2), gives juvenile
offenders like defendant a mechanism to obtain release without serving their entire
sentence, it suffers from the same problem Gutierrez saw in section 1170, subdivision
(d)(2): the “meaningful opportunity” must be provided at the outset, not 15 or 25 years in
the future. Thus, a sentencing court must, at the time of sentencing, exercise its
discretion in accordance with Miller. (See Gutierrez, supra, 58 Cal.4th at p. 1379
[“Under Miller, a state may authorize its courts to impose life without parole on a
juvenile homicide offender when the penalty is discretionary and when the sentencing
court’s discretion is properly exercised in accordance with Miller”].) Section 3051 is not
a substitute for the requisite “individualized sentencing” the Eighth Amendment requires.
(See Miller, supra, __ U.S. at p. __ [132 S.Ct. at p. 2467]; Caballero, supra, 55 Cal.4th at
pp. 268-269.)
The trial court here did not engage in such “individualized sentencing.” Although
defendant requested a sentencing hearing to address the Miller factors, the court said:
“But I’m going to deny your motion with regard to having a full-blown hearing with
regard to different aspects because I personally believe that, with a little bit of time in,
we’ll see where [defendant] is in his life with regard to his ability to parole or not. [¶]
And I think, if you look at him now, this will be the worst time. He’s sitting over there,
laughing, and he’s the one that spoke up to me.[17] Honestly, it––he might benefit from
this because at this point he might qualify as one of the worst of the worst and is eligible
for LWOP or for a life sentence like this, based on the nature of the crime, based on his
own words that were captured in the police car.”
17 At the sentencing hearing, defendant defiantly spoke out of turn to the trial court.

-- 21 of 23 --

22
It therefore appears that the trial court declined to consider Miller and related
cases and instead relied on section 3051. As we have said, section 3051 is not a
substitute for the trial court’s consideration at the time of sentencing of the Miller factors,
namely, defendant’s age and “its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences,” family and home
environment, the circumstances of the homicide, the extent of each defendant’s
participation in it, and familial and peer pressures. (Miller, supra, __ U.S. at p. __
[132 S.Ct. at pp. 2468-2469].)
We therefore remand this matter with the direction to the trial court to reconsider
defendant’s sentence in light of Miller and Caballero. We do not dictate what the
outcome should be on remand.
IV. The concurrent sentence on the gang enhancement.
The trial court sentenced defendant to 25 years to life for the murder plus a
consecutive 25 years to life for the gun use enhancement. The court imposed a
concurrent “15 years to life” sentence on the gang enhancement. But where, as here, the
defendant is convicted of first degree murder with a finding that the crime was committed
for the benefit of a criminal street gang within the meaning of section 186.22, he is
subject to the minimum parole eligibility term of 15 years under section 186.22,
subdivision (b)(5). (People v. Lopez (2005) 34 Cal.4th 1002.) On remand, the trial court
shall consider the 15-year minimum parole eligibility period (§ 186.22, subd. (b)(5)), to
the extent relevant.

-- 22 of 23 --

23
DISPOSITION
The judgment is reversed and remanded only for reconsideration of defendant’s
sentence under the Eighth Amendment to the United States Constitution; the judgment of
conviction is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KITCHING, Acting P. J.
LAVIN, J.*
* Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

-- 23 of 23 --