Filed 3/16/15
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064010
Plaintiff and Respondent,
v. (Super. Ct. No. SCD234048)
SHAQUILLE KASIYA JORDAN et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County, Kerry
Wells, Judge. Affirmed as modified.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant Shaquille Kasiya Jordan.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and
Appellant Seandell Lee Jones.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part II., sections A., B., D. and E.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and
Appellant Rashon Jay Abernathy.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff
and Respondent.
Based on a robbery and killing that occurred on May 11, 2011, when each of the
defendants was 17 years old, Rashon Jay Abernathy, Seandell Lee Dupree Jones and
Shaquille Kasiya Jordan (collectively, defendants) were found guilty of first degree
murder (Pen. Code, §§ 187, subd. (a), 189);1 two counts of robbery (§ 211); shooting at
an occupied motor vehicle (§ 246); and unlawfully taking and driving a vehicle (Veh.
Code, § 10851, subd. (a)). Based on a different incident on May 5, 2011, the jury also
found Abernathy guilty of an additional count of robbery (§ 211). The jury made true
findings that Abernathy personally used a firearm during the robberies, the murder and
the shooting at an occupied vehicle. (§ 12022.53, subds. (b), (d).)
The trial court sentenced Jones and Jordan to a prison term of 25 years to life and
sentenced Abernathy to a prison term of 50 years to life.
On appeal, all three defendants contend that (1) the trial court prejudicially erred
in failing to instruct that, for the purposes of the felony-murder rule, the jury must find
that the target felony (robbery) ended at the point defendants reached a place of
temporary safety, known as "the escape rule"; (2) the sentences imposed by the trial court
1 Unless otherwise indicated, all further statutory references are to the Penal Code.
2
are unconstitutional under either the federal or state Constitutions because they constitute
cruel and unusual punishment; and (3) at sentencing, the trial court incorrectly calculated
the defendants' presentence custody credits. Jones and Abernathy further contend
insufficient evidence supports their convictions for unlawfully taking or driving a vehicle,
and Jones contends the abstract of judgment does not accurately reflect that his five-year
sentence for shooting at an occupied vehicle in count 4 was stayed by the trial court
pursuant to section 654.
We conclude that (1) although the trial court erred in failing to instruct with the
escape rule for felony murder, the error was not prejudicial; (2) sufficient evidence
supports Abernathy's and Jones's conviction for unlawfully taking or driving a vehicle;
(3) there is no merit to the defendants' contention that their sentences constitute cruel and
unusual punishment; (4) Abernathy's and Jordan's judgment should be modified to award
an additional day of presentence custody credit; and (5) a clerical error in Jones's abstract
of judgment must be corrected to reflect that the sentence on count 4 is stayed pursuant to
section 654. Accordingly, we modify the judgment as to Abernathy and Jordan to award
an additional day of presentence custody credit, and we order that the abstract of
judgment be corrected as to Jones to accurately reflect that his sentence on count 4 is
stayed. In all other respects, the judgments are affirmed.
I
FACTUAL AND PROCEDURAL BACKGROUND
In May 2011, Abernathy placed an advertisement on Craigslist claiming that he
had a MacBook Pro computer to sell for $900. After Abernathy communicated with a
3
potential buyer, Erick Castillo, by exchanging text messages, Abernathy met with
Castillo at a recreation center on May 5, 2011. Abernathy brought along a friend for the
transaction, but the other two defendants were not involved. When Castillo took out
$600 in cash to pay for the computer, Abernathy's friend grabbed the money and ran
away with Abernathy. Castillo chased them, and as Castillo came closer, Abernathy
pulled out a gun and pointed it at Castillo, stating "I'm going to fucking kill you."
Castillo gave up the chase and called 911.
A second robbery occurred on May 11, 2011, and involved Abernathy, Jones and
Jordan. Using the same Craigslist advertisement, Abernathy arranged to meet with 18-
year-old Garrett Berki in front of a school around 9:15 p.m. Berki brought his girlfriend,
Alejandra Faudoa, along in the car for the transaction. After waiting in front of the
school for a few minutes, Berki got a call from Abernathy stating that the meeting place
had changed to an apartment complex in the neighborhood. Berki drove to the new
location, where Abernathy and Jones were waiting outside. Abernathy insisted that Berki
show him the money before handing over the computer. During the discussion, Jones
either showed Berki a gun or pointed it at him, stating that Abernathy would count the
money. Berki handed over the money, and Abernathy demanded that Berki and Faudoa
give him their cell phones. Abernathy and Jones then ran away through the apartment
complex with a total of $640 and the two cell phones.
According to Abernathy, he got to the scene of the May 11 robbery after being
picked up from home in a Honda driven by Jordan, in which Jones was a passenger.
Jordan parked near the apartment complex and dropped off Abernathy and Jones so that
4
they could commit the robbery. After the robbery Abernathy and Jones ran back to the
Honda, and the three defendants decided to go to a nearby house where Jones's and
Jordan's girlfriends lived. According to Abernathy, they stayed at the house for a few
minutes but then were asked to leave, so they started driving toward a shopping mall.
Meanwhile, after being robbed, Berki and Faudoa sat in their car for a few minutes
before deciding that Berki would drive to the police station to report the robbery. When
Berki had driven one or two blocks from the scene of the robbery, he noticed Jordan,
Jones and Abernathy in the Honda driving toward him. Berki and Faudoa decided to
follow the Honda so that they could get the license plate number. Berki followed the
Honda in and out of a parking lot and then through the streets and onto a freeway. Berki
was driving close behind the Honda to try to see the license plate, and he was also driving
in a manner that he hoped might attract the attention of the police, such as pulling directly
in front of the Honda and putting on his brakes.
The Honda exited the freeway while Berki's car was in front of it, but Berki
managed to drive over the freeway shoulder and down the off-ramp, following the Honda
into a residential neighborhood. Both cars ended up on a dead-end street. Berki stopped
his car at an angle before the end of the cul-de-sac while the Honda turned around at the
end of the cul-de-sac and drove up next to Berki's car. Abernathy pointed a gun out of a
backseat window of the Honda and fired one shot into Berki's car. Berki was shot in the
left chest and was pronounced dead at the hospital a short time later.
The defendants drove a few blocks away, crashed the Honda and fled into the
backyards of the residential neighborhood, where police located them by use of infrared
5
helicopter cameras and K-9 units. After being arrested, Jones, Jordan and Abernathy
were taken to the police station, where they made numerous statements connecting
themselves to the crimes in a recorded jail cell conversation. Further, it was discovered
that the Honda in which the defendants were riding had been stolen a few hours before
the second robbery, either on the night of May 10 or the morning of May 11, 2011.
Based on the events of May 11, 2011, Abernathy, Jones and Jordan were each
charged with first degree murder (§§ 187, subd. (a), 189), two counts of robbery (§ 211),
shooting at an occupied motor vehicle (§ 246); and unlawfully taking and driving a
vehicle (Veh. Code, § 10851, subd. (a)). Based on the May 5, 2011 robbery, Abernathy
was charged with an additional count of robbery (§ 211). The information also included
gang allegations for each count as to each defendant (§ 186.22, subd. (b)(1)), and
allegations as to each count (except the count for unlawfully taking or driving a vehicle)
that a principal personally used a firearm in committing the crimes (§ 12022.53, subd.
(b), (d), (e)(1)).
When Abernathy testified at trial, he admitted to committing both robberies and to
shooting Berki, but he contended that the shooting was an accident caused by an
inadvertent discharge of the gun. Abernathy also testified that he did not know that
Jordan was driving a stolen vehicle until Jordan informed him of that fact when he got
back into the Honda after the second robbery. Jordan and Jones did not testify at trial.
The jury found the defendants guilty on all counts but did not make a true finding
on the gang allegations and found the firearm allegations to be true only as to Abernathy.
6
The trial court sentenced Jones and Jordan to prison for 25 years to life and sentenced
Abernathy to prison for 50 years to life.
II
DISCUSSION
A. The Error in Instructing the Jury on the Escape Rule for Felony Murder Was
Harmless Beyond a Reasonable Doubt
We first consider the contention, advanced by all three defendants, that the trial
court prejudicially erred in failing to instruct on the escape rule for felony murder. There
is no dispute that the trial court erred. Indeed, as the trial court acknowledged in ruling
on posttrial motions, our Supreme Court's opinion in People v. Wilkins (2013) 56 Cal.4th
333 (Wilkins) — issued after the verdict in this case — establishes that the trial court's
instruction on felony murder was incorrect. However, as we will explain, we agree with
the trial court's conclusion that the error was harmless because, based on the jury's
findings on other issues, it is clear beyond a reasonable doubt that the jury would have
reached the same verdict on the murder counts had it been properly instructed with the
escape rule for felony murder.
1. The Escape Rule as Applied to Felony Murder
We first examine the applicable legal principles under the felony-murder rule.
Here, all three defendants were charged with murder under the felony-murder rule, based
on the allegation that Berki's death occurred during the commission of a robbery.2 Under
2 As the shooter, Abernathy was also prosecuted for first degree murder under two
other theories identified in section 189, namely, (1) he killed willfully with premeditation
7
the felony-murder rule, "[a]ll murder . . . which is committed in the perpetration of, or
attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, [or] train
wrecking . . . is murder of the first degree." (§ 189.) " 'Under the felony-murder rule, a
strict causal or temporal relationship between the felony and the murder is not required;
what is required is proof beyond a reasonable doubt that the felony and murder were part
of one continuous transaction.' " (Wilkins, supra, 56 Cal.4th at p. 340, italics added.)
Prior to our Supreme Court's recent opinion in Wilkins, the discussion in People v.
Cavitt (2004) 33 Cal.4th 187 (Cavitt) created uncertainty about what constitutes one
continuous transaction in the context of the felony-murder rule. Specifically, the
uncertainty involved the issue of whether, in the context of felony murder, the target
felony continues only until the perpetrator has reached a place of temporary safety, which
is a concept referred to as "the escape rule." (See Wilkins, supra, 56 Cal.4th at pp. 341-
342 [explaining uncertainty as to the application of the escape rule in a felony-murder
context caused by Cavitt].) The escape rule is used in contexts other than felony murder
to determine whether an act occurred in the commission of a crime, such as to determine
whether a defendant used a firearm in commission of a crime, committed a kidnapping
during a crime, or inflicted great bodily injury during a crime. (Id. at p. 341, citing
cases.) CALCRIM No. 3261 accordingly sets forth the escape rule for use in those
contexts. However, based on Cavitt, the bench notes to CALCRIM No. 3261 at the time
of defendants' trial specifically disapproved instructing the jury on the escape rule in the
and deliberation, and (2) he intentionally discharged a firearm from a motor vehicle at
another person outside of the vehicle with the intent to inflict death.
8
context of felony murder, stating that the instruction " 'should not be given in a felony-
murder case to explain the required temporal connection between the felony and the
killing.' " (Wilkins, at p. 341, citing (Judicial Council of Cal., Crim. Jury Instns. (2012)
Bench Notes to CALCRIM No. 3261, p. 990.)3
Relying on Cavitt and the CALCRIM bench notes, the trial court here declined
defendants' requests to instruct the jury with the escape rule for the felony-murder count.
Under the instruction requested by defense counsel, but rejected by the trial court, the
jury would have been informed that a robbery continues for the purpose of the felony-
murder rule only until the perpetrators have reached a place of temporary safety. Instead,
the trial court instructed the jury with a modified version of former CALCRIM No. 549,
which set forth several nonexclusive factors for the jury to consider in determining
whether a robbery and a murder constitute one continuous transaction for the purposes of
the felony-murder rule.4
3 As modified to apply to a robbery case, CALCRIM No. 3261 states in relevant
part:
"[The crime of robbery [or attempted robbery] continues until the perpetrator[s]
(has/have) actually reached a place of temporary safety.
The perpetrator[s] (has/have) reached a place of temporary safety if:
• (He/She/They) (has/have) successfully escaped from the scene; [and]
• (He/She/They) (is/are) not or (is/are) no longer being chased(; [and]/.)
• [(He/She/They) (has/have) unchallenged possession of the property(; [and]/.)]
• [(He/She/They) (is/are) no longer in continuous physical control of the person who
is the target of the robbery.]]"
4 Former CALCRIM No. 549, as given by the trial court, stated:
"A killing is committed during the commission of a robbery under the felony
murder rule if the People have proved beyond a reasonable doubt that the robbery and the
act causing death are part of one continuous transaction. The continuous transaction may
9
The trial here took place in October and November 2012. In March 2013, before
sentencing in this case, our Supreme Court decided Wilkins, supra, 56 Cal.4th 333. In
Wilkins, the Supreme Court explained that despite any uncertainty caused by Cavitt, the
escape rule does apply in a felony-murder context, so that liability for felony murder ends
at the point that the perpetrator reaches a place of temporary safety. Wilkins stated,
" 'Felony-murder liability continues throughout the flight of a perpetrator from the scene
of a robbery until the perpetrator reaches a place of temporary safety because the
robbery and the accidental death, in such a case, are parts of a "continuous transaction." '
. . . When the killing occurs during flight, . . . the escape rule establishes the 'outer limits
of the "continuous-transaction" theory.' . . . 'Flight following a felony is considered part
occur over a period of time and in more than one location. There is no requirement that
the act causing death occur while committing or while engaged in the robbery or that the
killing be part of the robbery, so long as the People have proved the two acts are part of
one continuous transaction.
"In deciding whether the killing and the robbery were part of one continuous
transaction, you may consider the following factors: [¶] 1. Whether the felony and the
fatal act occurred at the same place; [¶] 2. The time period, if any, between the robbery
and the fatal act; [¶] 3. Whether the fatal act was committed for the purpose of aiding
the commission of the robbery or escape after the robbery; [¶] 4. Whether the fatal act
occurred after the felony but while one or more of the perpetrators continued to exercise
control over the person who was the target of the felony; [¶] 5. Whether the fatal act
occurred while the perpetrators were fleeing from the scene of the robbery or otherwise
trying to prevent the discovery or reporting of the crime; [¶] 6. Whether the robbery was
the direct cause of death; [¶] AND [¶] 7. Whether the death was a natural and probable
consequence of the robbery.
"It is not required that the People prove any of these factors or any particular
combination of these factors. This is not an exclusive list. The factors are given to assist
you in deciding whether the fatal act and the robbery were part of one continuous
transaction."
10
of the same transaction as long as the felon has not reached a "place of temporary
safety." ' " (Id. at p. 345, citations omitted, some italics added.)
Shortly after Wilkins was issued, the trial court notified the parties of the opinion
and invited briefing. The defendants thereafter filed motions for a new trial based on
Wilkins, arguing that the jury had been misinstructed on felony murder. In ruling on the
motions, the trial court concluded that it had misinstructed the jury because it did not
instruct with the escape rule for felony murder. However, the trial court concluded that
the error was harmless beyond a reasonable doubt because the jury had been instructed
with the escape rule as to the firearm allegations and the crime of shooting at an occupied
vehicle. As the trial court explained, based on the jury's findings on those issues, the jury
necessarily found that the defendants had not reached a place of temporary safety before
Abernathy shot Berki, and thus, had the jury been properly instructed on the escape rule
for felony murder, it would have found that the defendants had not reached a place of
temporary safety before the killing.
2. The Error Was Harmless Beyond a Reasonable Doubt
For the purposes of our analysis, we begin with the premise, as do the parties, that
the trial court erred in failing to instruct the jury that the escape rule applies to the felony-
murder counts. Specifically, after Wilkins it is clear that, with respect to felony murder,
instead of instructing that the jury could find the robbery and the killing to be part of one
continuous transaction based on several nonexclusive factors, including "[w]hether the
fatal act occurred while the perpetrators were fleeing from the scene of the robbery or
otherwise trying to prevent the discovery or reporting of the crime" (former CALCRIM
11
No. 549, as given), the jury should have been instructed that the robbery and the killing
could not be part of one continuous transaction if the defendants reached a place of
temporary safety before the killing.
The only disputed issue for us to resolve is whether the instructional error was
prejudicial. Wilkins establishes that an error in failing to instruct the jury on the escape
rule for felony murder is a federal constitutional error because the error amounts to a
misinstruction on an element of first degree murder. (Wilkins, supra, 56 Cal.4th at
p. 350.) Applying the standard of prejudice applicable to federal constitutional error, we
therefore examine " 'whether it appears " ' "beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained." ' " ' " (Ibid.)
An instructional error is harmless beyond a reasonable doubt if " '[t]he factual
question posed by the omitted instruction was necessarily resolved adversely to defendant
under other, properly given instructions.' " (People v. Pulido (1997) 15 Cal.4th 713,
726.) Here, as we will explain, the jury was instructed on the escape rule under two other
instructions and necessarily made findings on the escape rule adverse to the defendants in
connection with those instructions. Based on those findings, we can safely conclude that
the jury determined the defendants had not reached a place of temporary safety before the
killing.
First, we explain why the instructional error was harmless as to Jones and Jordan.
Those two defendants were prosecuted for shooting at an occupied motor vehicle in
count 4 under the sole theory that they were guilty as aiders and abettors under the natural
and probable consequences doctrine. As the jury was instructed, for the natural and
12
probable consequences doctrine to apply, it must find that "[d]uring the commission of"
the robbery, a coparticipant (i.e., Abernathy) committed the crime of shooting at an
occupied motor vehicle, and that the shooting was a natural and probable consequence of
the robbery.
The jury was further instructed to use the escape rule to determine whether the
shooting occurred during the commission of the robbery for the purposes of the natural
and probable consequences. Specifically, the jury was instructed with a modification of
CALCRIM No. 3261, as follows: "For purposes of determining whether the crime of
Shooting at an Occupied Vehicle was committed as a natural and probable consequence
of robbery, the crime of robbery continues until the perpetrators have actually reached a
temporary place of safety. [¶] The perpetrators have reached a temporary place of safety
if: [¶] They have successfully escaped from the scene; [¶] They are no longer being
chased; AND [¶] They have unchallenged possession of the property." Having been
instructed with the modification of CALCRIM No. 3261, as quoted above, the jury found
Jones and Jordan guilty of shooting at an occupied vehicle.
In light of the instruction on the escape rule in CALCRIM No. 3261, the jury
could not have found Jones and Jordan guilty of shooting at an occupied vehicle unless it
also found that the defendants had not reached a place of temporary safety before the
shooting. Therefore, based on the jury's finding with respect to the natural and probable
consequences doctrine for count 4, we can determine beyond a reasonable doubt what
finding the jury would have made had it been properly instructed with the escape rule for
felony murder. Specifically, based on the jury's verdict on the natural and probable
13
consequences doctrine for count 4, if properly instructed on the escape rule for felony
murder, it is clear that the jury would have found that Jones and Jordan did not reach a
place of temporary safety before the shooting, so that the robbery and the murder were
part of one continuous transaction as required for a guilty verdict on felony murder. The
instructional error in failing to instruct on the escape rule for felony murder was therefore
harmless beyond a reasonable doubt as to Jones and Jordan.
Second, we explain why the instructional error was harmless as to Abernathy. The
jury was instructed with the escape rule in the context of the firearm allegations against
Abernathy. Specifically, Abernathy was alleged to have personally and intentionally
discharged a firearm causing death while committing the May 11 robbery, the murder of
Berki and while shooting at an occupied vehicle. (§ 12022.53, subd. (d).) As the jury
was instructed, to make a true finding on those firearm allegations as to each crime, it had
to find, among other things, that Abernathy "personally discharged a firearm during the
commission of that crime." (Italics added.)
To help the jury determine whether Abernathy personally discharged a firearm
during the crimes, the trial court instructed with a modification of CALCRIM No. 3261
that for the purposes of "Personally Using Firearm: Causing Death . . . , the crime of
robbery continues until the perpetrators have actually reached a temporary place of
safety. [¶] The perpetrators have reached a temporary place of safety if: [¶] They have
successfully escaped from the scene; [¶] They are no longer being chased; AND [¶]
They have unchallenged possession of the property."
14
The jury made a true finding that Abernathy personally and intentionally
discharged a firearm during the robbery of Berki and Faudoa, during the murder of Berki
and while committing the crime of shooting at an occupied vehicle. We know that the
only time Abernathy personally discharged a firearm during the events of May 11 was
when he shot Berki in the cul-de-sac after the car chase. Therefore, in concluding that
Abernathy personally discharged a firearm during the robbery of Berki and Faudoa, the
jury necessarily concluded that the robbery continued until the end of the car chase, when
Abernathy shot Berki.5
In light of the instruction on the escape rule in CALCRIM No. 3261, the jury
could not have found that the robbery continued until Abernathy shot Berki unless it also
found that Abernathy did not reach a place of temporary safety before the shooting. We
5 Jordan and Jones argue that because the jury found the firearm allegations against
them to be unproven, and the jury was instructed on the escape rule to determine whether
a firearm was discharged during the commission of the crimes for the purposes of those
firearm enhancements, the jury must have determined that the escape rule was not
satisfied as to Jordan and Jones. The argument lacks merit. In contrast to the firearm
allegations that the jury found to be true as to Abernathy for personally discharging a
firearm under section 12022.53, subdivision (d), the only firearm enhancements alleged
against Jordan and Jones were gang-related firearm enhancements, applicable to
defendants who do not personally discharge a firearm, but who commit a gang-related
crime together with the shooter. (§ 12022.53, subds. (d), (e)(1).) The jury was instructed
that to make a true finding on the firearm allegations against Jordan and Jones as to each
of the applicable counts, it was required to find that the defendants "committed those
crimes for the benefit of, at the direction of, or in association with a criminal street gang
with the intent to promote, further, or assist in any criminal conduct by gang members."
The jury specifically found that the crimes were not gang related, requiring that they also
find that the gang-related firearms allegations against Jordan and Jones were unproven.
Therefore the jury's rejection of the firearm allegations against Jordan and Jones does not
mean that the jury found that the escape rule was not satisfied as to them.
15
can therefore determine, beyond a reasonable doubt, based on the jury's true finding on
the firearm allegations for the robbery counts, that if the jury had been properly instructed
that the escape rule applied to felony murder, it would have concluded that Abernathy did
not reach a place of temporary safety before the shooting. If properly instructed, the jury
accordingly would have found that the robbery and the murder were part of one
continuous transaction for the purposes of felony murder. The instructional error in
failing to instruct on the escape rule for felony murder was therefore harmless beyond a
reasonable doubt as to Abernathy as well.
The defendants argue that the instructional error was nevertheless prejudicial —
even in light of the finding on the escape rule in the context of the natural and probable
consequences doctrine for count 4 against Jones and Jordan and the firearm allegations
against Abernathy — because the jury must have been confused by the different
standards in former CALCRIM No. 549 and CALCRIM No. 3261 for determining
whether the robbery continued until the shooting.6 According to defendants, we cannot
6 Defendants cite Wilkin's statement, made in a slightly different context, that it
could be "confusing or misleading" if a trial court instructed with both CALCRIM
No. 3261 and former CALCRIM No. 549. (Wilkins, supra, 56 Cal.4th at p. 348, fn. 4.)
Defendants' citation to Wilkins does not advance their argument. Wilkins posited that it
would be confusing and misleading for trial courts to fashion an instruction on the escape
rule for felony murder by giving both CALCRIM No. 3261 and former CALCRIM
No. 549 together. Here, of course, both instructions were not given in an attempt to
instruct on the escape rule for felony murder. Instead, the trial court gave both
instructions because it concluded that the escape rule instruction in CALCRIM No. 3261
was warranted for the count of shooting at an occupied vehicle and the firearm
allegations, and former CALCRIM No. 549, in contrast, was needed to explain the one
continuous transaction doctrine for felony murder, and the distinction was made clear to
the jury.
16
be certain that the jury properly applied the escape rule as described in CALCRIM
No. 3261 because its analysis may have been tainted by the different standards set forth
in former CALCRIM No. 549 for deciding whether the robbery and the shooting were
one continuous transaction for the purpose of felony murder.
Based on our review of the record, we perceive no indication of any confusion
caused by the fact that the jury was instructed with former CALCRIM No. 549 as well as
CALCRIM No. 3261. We therefore perceive no problem with relying on the jury's
findings as to the duration of the robbery in the context of the natural and probable
consequences doctrine for count 4 and the firearm allegations in conducting our harmless
error analysis. Indeed, during closing arguments the difference in the standards for
determining the duration of the robbery as set forth in former CALCRIM No. 549 and
CALCRIM No. 3261 was extensively explained to the jury, and that explanation would
have dispelled any confusion that could have been caused by the conflicting standards in
the two instructions.7
7 Specifically, during closing argument the prosecutor explained that the time frame
involved in the question of whether the defendants had reached a place of temporary
safety before the shooting is "different than the felony[-]murder one continuous
transaction. This is what's known as the escape rule. It's going to sound similar because,
again, you can use this as a factor to determine if it's one continuous transaction, but it is
not the same thing." The prosecutor explained, "You can have the defendants reach a
place of temporary safety and still have felony murder and still have one continuous
transaction. They both can coexist." In his rebuttal argument, the prosecutor again
returned to the contrast between the two instructions. "The jury instructions define
robbery for you and how long this takes. For felony murder, it takes as long as the one
continuous transaction doctrine. For natural and probable consequences and for gun
usage, it takes as long as the escape rule says. The escape rule is not as long as the one
continuous transaction. The one continuous transaction extends beyond the escape rule."
17
We accordingly conclude that the trial court's error in failing to instruct on the
escape rule for felony murder was harmless beyond a reasonable doubt as to each of the
defendants.
B. Sufficient Evidence Supports the Conviction for Unlawfully Taking or Driving a
Vehicle Against Jones and Abernathy
We next consider Jones's and Abernathy's argument that insufficient evidence
supports their conviction in count 5 for unlawfully taking or driving a vehicle (Veh.
Code, § 10851, subd. (a)).
All three defendants were convicted of violating Vehicle Code section 10851,
subdivision (a), which provides: "Any person who drives or takes a vehicle not his or her
own, without the consent of the owner thereof, and with intent either to permanently or
temporarily deprive the owner thereof of his or her title to or possession of the vehicle,
whether with or without intent to steal the vehicle, or any person who is a party or an
accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty
of a public offense . . . ."
As we have explained, the evidence established that the Honda being driven by
Jordan on May 11, 2011, during the robbery and murder had been stolen while parked on
the street sometime either late on May 10 or early on May 11. Jordan, who was the
Counsel for Jones also spent a considerable portion of his closing argument describing
the two different instructions for determining the duration of the robbery. Specifically,
he described at length both the question of whether the defendants had reached a place of
temporary safety for the purpose of the natural and probable consequences doctrine as
well as the multi-factored test for determining in the context of felony murder whether
the robbery and the shooting were part of one continuous transaction.
18
driver of the stolen Honda, does not challenge the sufficiency of the evidence to support
his conviction for unlawfully taking or driving in violation of Vehicle Code section
10851, subdivision (a).
However, Jones and Abernathy contend that because they were passengers in the
Honda, not the driver, and there is no evidence connecting them to the initial act of
stealing the Honda, there is insufficient evidence to convict them under Vehicle Code
section 10851, subdivision (a).
In considering a challenge to the sufficiency of the evidence, "we review the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence — that is, evidence that is reasonable, credible, and of solid value —
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. . . . We presume every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence. . . . If the circumstances reasonably justify the
trier of fact's findings, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding. . . . 'A
reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' "
(People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.)
We begin our analysis with a review of the applicable legal standards. As relevant
here, Vehicle Code section 10851, subdivision (a) contains plain language establishing
that criminal liability is not limited to the person who drives or steals a vehicle, but that it
also extends to "any person who is a party or an accessory to or an accomplice in the
driving or unauthorized taking or stealing." (Ibid., italics added.) In People v. Clark
19
(1967) 251 Cal.App.2d 868, 874 (Clark), the court considered the extent to which a
passenger in a stolen vehicle may be criminally liable under the portion of the statute
applying to someone who is an accessory, an accomplice or a party to driving a stolen
vehicle. As Clark explained, establishing guilt under that theory "requires proof of more
than mere presence in the automobile. At a minimum, defendant must have known that
the vehicle had been unlawfully acquired and must have had that knowledge at a time
when he could be said to have, in some way, aided or assisted in the driving. Knowledge
of the unlawful taking, acquired after the ride started and when defendant could neither
stop the trip nor leave the vehicle is not enough." (Ibid., italics added.)
Although sparse additional case law exists describing the circumstances in which a
passenger in a stolen vehicle will be criminally liable for unlawfully driving the vehicle,
case law in the analogous context of a passenger prosecuted for receiving a stolen vehicle
under section 496 is instructive. A conviction for receiving a stolen vehicle requires,
among other things that the passenger have actual or constructive possession of the
vehicle, even though the stolen vehicle is being driven by someone else. (People v. Land
(1994) 30 Cal.App.4th 220, 223 (Land).) The question of whether a passenger in a stolen
vehicle had constructive possession "turns on the unique factual circumstances of each
case." (Id. at p. 228.) In Land, the evidence supported a finding that the passenger had
constructive possession of the stolen vehicle because of the passenger's "close
relationship to the driver, use of the vehicle for a common criminal mission, and stops
along the way before abandoning it (during which [the passenger] apparently made no
effort to disassociate himself from his friend or the stolen vehicle)." (Ibid.)
20
Applying Clark and Land, we conclude that substantial evidence supports a
finding that although Jones and Abernathy were passengers in the stolen Honda being
driven by Jordan, they were parties to, accessories to or accomplices in the driving of the
stolen Honda.
As required by Clark, there is evidence that Jones and Abernathy "kn[ew] that the
vehicle had been unlawfully acquired and . . . had that knowledge at a time when [they]
could be said to have, in some way, aided or assisted in the driving." (Clark, supra, 251
Cal.App.2d at p. 874.) Specifically, although Abernathy denied knowing before the
robbery that the Honda was stolen, he testified that as soon as he and Jones arrived back
at the Honda after robbing Berki and Faudoa, Jordan informed them that because the
Honda was stolen, he did not want to have a gun in the car. According to Abernathy's
testimony, after acquiring knowledge that the Honda was stolen, he and Jones
nevertheless drove in the Honda to visit Jordan's and Jones's girlfriends and after that
stop, they once again got in the stolen Honda before being chased by Berki. Under the
scenario described by Abernathy, there was ample opportunity for both Jones and
Abernathy to decide to cease being passengers in the stolen Honda. This situation is
accordingly not, as described in Clark, an instance where the defendants have no criminal
liability because they found out that the car was stolen "after the ride started and when
[they] could neither stop the trip nor leave the vehicle." (Ibid.)
In addition, there are several similarities between this case and the circumstances
described in Land to support a finding that Jones and Abernathy were parties, accessories
or accomplices to driving the stolen vehicle. Specifically, (1) Jones and Abernathy had a
21
"close relationship to the driver," in that all three defendants were friends; (2) all three
defendants made "use of the vehicle for a common criminal mission"; and (3) the
defendants made "stops along the way before abandoning [the vehicle] (during which
[Jones and Abernathy] apparently made no effort to disassociate [themselves] from
[their] friend or the stolen vehicle)." (Land, supra, 30 Cal.App.4th at p. 228.)
Accordingly, based on the evidence at trial, a reasonable juror could determine
that although they were passengers in the stolen Honda driven by Jordan, both Jones and
Abernathy were nevertheless guilty of unlawfully taking or driving the vehicle.
C. Defendants' Challenge to Their Sentences as Cruel and Unusual Punishment
As we have described, each of the defendants was 17 years old when committing
the crimes at issue. Based on that fact, the defendants contend that the trial court violated
the prohibition on cruel and unusual punishment in the Eighth Amendment to the United
States Constitution by sentencing them to indeterminate life terms in prison (50 years to
life for Abernathy and 25 years to life for Jones and Jordan). Further, Jones and Jordan
contend that because they were not shooters during the murder, and in light of their age at
the time of the crime, their sentences are disproportionate to their crimes and therefore
constitute cruel and unusual punishment in violation of the federal and state
Constitutions.
We apply a de novo standard of review to these issues. (People v. Em (2009) 171
Cal.App.4th 964, 971 (Em) [" 'Whether a punishment is cruel or unusual is a question of
law for the appellate court . . . .' "].)
22
1. Abernathy's Sentence
As the trial court described at sentencing, based on the crimes for which
Abernathy was convicted, the longest sentence that the trial court could impose on
Abernathy (if it selected midterm sentences for the determinate terms), was 83 years to
life. Further, based on a mandatory 25-year-to-life sentence for the first degree murder
conviction (§ 190, subd. (a)), plus a mandatory 25-year-to-life sentence for the firearm
enhancement (§ 12022.53, subd.(d)), the shortest sentence that the trial court could
impose on Abernathy was 50 years to life, even if all the sentences for the other counts
were run concurrently or stayed. Abernathy argued to the trial court that a sentence of 50
years to life would be a mandatory de facto life sentence without parole, given his
actuarial life expectancy of 64.6 years as a Black male born in 1993, in that he would not
be eligible for release from prison (taking into account his credits) until the age of 67 at
the earliest.
The trial court acknowledged that given Abernathy's life expectancy, "an argument
could be made" that the required minimum sentence of 50 years to life was a de facto life
sentence without parole. The trial court therefore proceeded to apply the approach
required by the controlling United States Supreme Court case law, Miller v. Alabama
(2012) 567 U.S. __, 132 S.Ct. 2455 (Miller), which explains how the Eighth
Amendment's prohibition on cruel and unusual punishment applies to a defendant who,
like Abernathy, committed a homicide before the age of 18. Applying the approach
required by Miller, the trial court concluded that based on the circumstances of
Abernathy's case, including the age and maturity level at which Abernathy committed the
23
murder, Abernathy's family and social background, and the details of the crime, a
sentence of 50 years to life did not constitute cruel and unusual punishment, and it
accordingly imposed that sentence.8
a. Applicable Case Law
We begin our analysis with a focus on the United States Supreme Court's case law
applying the Eighth Amendment to the sentencing of juveniles.
The applicable line of cases begins with Roper v. Simmons (2005) 543 U.S. 551,
575 (Roper), which held that it is cruel and unusual punishment to impose the death
penalty on a defendant who committed a capital crime when under the age of 18.
Next, Graham v. Florida (2010) 560 U.S. 48, 74 (Graham), decided that it is cruel
and unusual punishment to sentence a defendant who committed a crime as a juvenile to
life in prison without parole for a nonhomicide offense. Under Graham, "[a] State is not
required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide
crime" but must "give defendants . . . some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation." (Id. at p. 75.)
Finally, Miller considered the issue of whether the Eighth Amendment proscribes
a mandatory life sentence without parole for a defendant convicted of a homicide for a
killing that occurred prior to the defendant's 18th birthday. (Miller, supra, 567 U.S. __,
132 S.Ct. 2455.) Miller disapproved mandatory life sentences without parole for juvenile
8 The trial court stayed the sentence on one of the robbery counts, and ordered that
the sentences for the remaining counts run concurrently to the 50-year-to-life term for the
murder and the firearm enhancement.
24
homicide offenders, holding that a sentencing court must be given the discretion to
consider the juvenile offender's age and youthful characteristics before deciding whether
to impose a sentence of life without parole for a homicide conviction. (Miller, supra, 567
U.S. ___, 132 S.Ct. at p. 2475.)
In the course of explaining why a mandatory life without parole sentence is
unconstitutional when applied to a juvenile homicide offender, Miller set forth the factors
that a sentencing court must consider before imposing such a sentence: "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 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, 567 U.S. ___, 132 S.Ct. at p. 2468.) As Miller explained,
"given all we have said in Roper, Graham, and this decision about children's diminished
culpability and heightened capacity for change, we think appropriate occasions for
sentencing juveniles to this harshest possible penalty will be uncommon. That is
25
especially so because of the great difficulty we noted in Roper and Graham of
distinguishing at this early age between 'the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects
irreparable corruption.' [Citations.] Although we do not foreclose a sentencer's ability to
make that judgment in homicide cases, we require it to take into account how children are
different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison." (Id. at p. 2469.)
Our Supreme Court recently examined Miller in People v. Gutierrez (2014) 58
Cal.4th 1354 (Gutierrez), stating that "[u]nder 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."9 (Id. at p. 1379.) As Gutierrez explained, in a homicide case
involving a juvenile offender "the trial court must consider all relevant evidence bearing
on the 'distinctive attributes of youth' discussed in Miller and how those attributes
'diminish the penological justifications for imposing the harshest sentences on juvenile
9 Gutierrez examined the issue of how Miller impacted the constitutionality of
section 190.5, subdivision (b), which provides that the penalty for 16- or 17-year-old
juveniles who commit special circumstance murder "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," and which had been interpreted as creating a presumption in favor of a sentence
of life without parole. (Gutierrez, supra, 58 Cal.4th at p. 1369, quoting § 190.5.
subd. (b).) Gutierrez concluded that the statute should not be interpreted to create a
presumption of a life sentence without parole and that a sentencing court should instead
conduct the analysis described in Miller in deciding what sentence to impose on a
juvenile offender sentenced under section 190.5, subdivision (b). (Gutierrez, at pp. 1360-
1361.)
26
offenders.' [Citation.] To be sure, not every factor will necessarily be relevant in every
case. . . . But Miller 'require[s] [the sentencer] to take into account how children are
different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.' " (Id. at p. 1390.)
One more recent decision by the California Supreme Court is pertinent here. In
People v. Caballero (2012) 55 Cal.4th 262 (Caballero), our Supreme Court considered
the constitutionality of a sentence of 110 years to life imposed on a defendant who was a
juvenile when he committed the nonhomicide crimes that gave rise to his sentence.
Caballero concluded that for the purpose of a constitutional analysis, the sentence should
be treated as a de facto life sentence without parole since there would be no opportunity
for the defendant to be released from prison during his lifetime.10 (Id. at p. 268.)
b. Abernathy's Sentence Is Constitutional Under Miller
With the above case law in mind, we turn to Abernathy's challenge to his sentence.
Abernathy contends that given his life expectancy, the sentence of 50 years to life —
which is the minimum sentence statutorily authorized for his crimes — is a de facto
mandatory life sentence without parole. Abernathy accordingly contends that Miller
applies to his sentence, as it does to all juvenile homicide offenders who are subject to
10 Caballero dealt with juvenile nonhomicide offenders and thus applied the holding
in Graham. Our Supreme Court currently has under review the issue of whether, for the
purpose of Miller's holding that a mandatory life sentence without parole is
unconstitutional for juvenile homicide offenders, a de facto mandatory life sentence is the
functional equivalent of an actual mandatory life sentence without parole. (In re Alatriste
and In re Bonilla (2013) 220 Cal.App.4th 1232, review granted Feb. 19, 2014, S214652
(Alatriste), S214960 (Bonilla).)
27
mandatory life sentences without parole. According to Abernathy, the trial court was
thus required at sentencing to exercise its discretion to consider whether, given the factors
set forth in Miller, it should impose a sentence of less than 50 years to life.
In evaluating this argument, the first issue is whether Miller applies to sentences
that are not literally sentences of life without parole, but that — because of the length of
time before the defendant will have an opportunity for release — are de facto life
sentences without parole. As we have explained, that issue is currently before our
Supreme Court. (See fn. 10, ante.) As the issue is unsettled, we take the same approach
as the trial court and assume for the sake our analysis, without deciding, that Miller
applies to de facto life sentences without parole. We will also assume, without deciding,
that given Abernathy's life expectancy, a minimum statutorily authorized sentence of 50
years to life is a mandatory de facto life sentence, and that therefore, as Abernathy
contends, Miller applies here.
Having assumed for the purposes of our analysis that Miller applies, the next issue
is whether the trial court complied with Miller in how it conducted Abernathy's
sentencing. As we have noted, Miller requires that when faced with a sentencing scheme
that requires a mandatory life sentence without parole for a juvenile homicide offender,
the sentencing court must nevertheless exercise its discretion to determine whether it
should impose the mandatory sentence in light of factors relating to the defendant's
youth. Miller directs the sentencing court to take into account the defendant's
"immaturity, impetuosity, and failure to appreciate risks and consequences"; the
defendant's "family and home environment"; "the circumstances of the homicide offense,
28
including the extent of [the defendant's] participation in the conduct and the way familial
and peer pressures may have affected him"; the possibility that "incompetencies
associated with youth" resulted in the defendant being charged with a greater offense than
if he had been a more sophisticated participant in the criminal justice system; and "the
possibility of rehabilitation." (Miller, supra, 567 U.S. at p. __, 132 S.Ct. at p. 2468.) As
our Supreme Court explained in Gutierrez, "not every factor will necessarily be relevant
in every case," but the sentencing court must " 'take into account how children are
different.' " (Gutierrez, supra, 58 Cal.4th at p. 1390.)
Based on the trial court's extensive comments at sentencing, we conclude it
complied with Miller's requirements in sentencing Abernathy. As an initial matter, we
note that the trial court expressly explained at the outset of its discussion that it was
assuming for the sake of its sentencing decision that Miller applied, and it would
accordingly conduct the analysis required by Miller. As the trial court explained, "I
believe that it is appropriate for this court, in analyzing the cruel and unusual aspect of
this sentence, to look at the individual factors of this defendant and this crime and make
that analysis at this point." Further, the trial court prefaced its analysis by accurately
summarizing the main point of Miller. "What I take from Miller . . . is that youth matters
in making a sentencing decision. It must be allowed to factor into the equation of a
sentence even in a homicide." The trial court then went on to analyze whether, based on
the considerations in Miller, it should impose a sentence of less than 50 years to life.
Specifically, the trial court pointed out the following factors: (1) Abernathy's age at the
time of the murder was 17½, making him "not particularly young," and thus more mature
29
than many other juvenile offenders; (2) the nature of Abernathy's crimes was not
childlike or youthful, in that the crimes were sophisticated and carried out as part of a
scheme planned by Abernathy; (3) Abernathy had already committed the same type of
armed robbery days earlier, showing that he understood the nature of what he was doing
and did not merely act impulsively; (4) as Abernathy described during his testimony, he
had a positive emotional reaction to intimidating and terrifying Castillo in the first
robbery, which revealed something "very negative" about Abernathy's character;
(5) Abernathy's motive for the crimes was not "youthful," and instead was "pure greed"
not based on any financial need; (6) Abernathy's family and social background was not a
mitigating factor impacting his decision to commit a crime as a juvenile, as he was not
particularly disadvantaged or abused, was raised in a supportive and financially stable
family, had friends who were not criminals, and had no substance abuse or mental health
issues; (7) at the age of 17½ and at his maturity level as shown by the evidence,
Abernathy was fully capable of understanding the risk of threatening people with loaded
guns; and (8) according to Abernathy's comments to his codefendants in the jail cell on
the night of the murder, he felt no remorse. Based on all of these considerations, the trial
court concluded, "I do believe that there are some circumstances where 50 to life would
be so disproportionate to the conduct involved or given the mitigating circumstances of a
juvenile involved that it would be unconstitutional . . . , but this is not one of them."
In light of the fact that the trial court undertook a substantive and meaningful
analysis of whether, in light of Abernathy's age at the time of the murder and other
related factors, it should impose a sentence less than 50 years to life, we conclude that the
30
trial court fully complied with the requirements of Miller. Therefore, there is no merit to
Abernathy's contention that the trial court sentenced him to 50 years to life in prison in
violation of the Eighth Amendment's prohibition on cruel and unusual punishment.11
2. Jones's and Jordan's Sentences
The trial court sentenced both Jones and Jordan to prison for 25 years to life. As
they did in the trial court, Jordan and Jones contend that a sentence of 25 years to life
constitutes cruel and unusual punishment under both the federal and state Constitutions.
a. Federal Constitutional Argument Based on Graham and Miller
Jordan's and Jones's main federal constitutional argument is based on the same
Eighth Amendment case law we have discussed above, as set forth in Roper, Graham and
Miller. Jordan and Jones contend that the standards in case law governing life sentences
11 As the parties discuss, after the sentencing in this case, the Legislature passed
Senate Bill No. 260, effective January 2014, which enacted section 3051. (Stats. (2013)
ch. 312, § 4.) With certain exceptions not applicable here, section 3051 provides an
opportunity for a juvenile offender to be released on parole irrespective of the sentence
imposed by the trial court by requiring the Board of Parole Hearings to conduct "youth
offender parole hearings" on a set schedule depending on the length of the prisoner's
sentence. Specifically, youth offender parole hearings are held during the 15th year of
incarceration for a prisoner serving a determinate sentence (id., subd. (b)(1)), during the
20th year of incarceration for a prisoner serving a life term less than 25 years to life (id.,
subd. (b)(2)), and during the 25th year of incarceration for a prisoner serving a life term
of 25 years to life (id., subd. (b)(3)). The question of how Senate Bill No. 260 impacts
issues of cruel and unusual punishment for youth offenders is currently before our
Supreme Court. (In re Alatriste and In re Bonilla, supra, 220 Cal.App.4th 1232, review
granted Feb. 19, 2014, S214652 (Alatriste), S214960 (Bonilla).) Here, however, because
we conclude that there is no Eighth Amendment infirmity in Abernathy's sentence, we
need not, and do not, reach the issue of whether Senate Bill No. 260 would have served to
cure any Eighth Amendment violation by requiring a parole hearing after Abernathy
served 25 years in prison.
31
without parole for juvenile offenders established in Graham and Miller should be
extended to cases, such as theirs, in which they (1) are "exposed" to a life sentence, and
(2) neither "killed nor intended to kill." As we will explain, we reject this argument.
The first problem with Jones's and Jordan's argument, is that neither Jones nor
Jordan were sentenced to a life term without parole.12 As they correctly describe the
situation, they have merely been "exposed" to the possibility of a lifetime in prison
because the parole board may decide not to release them after they become eligible for
release in 25 years.13 Our Supreme Court was very clear in Graham and Miller that the
Eighth Amendment issues it was discussing arose only in the context of juvenile
offenders who were sentenced to life in prison without the possibility of parole. As
Graham explained, "[a] State is not required to guarantee eventual freedom to a juvenile
offender convicted of a nonhomicide crime[,]" but "must . . . give defendants . . . some
meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation." (Graham, supra, 560 U.S. 48, italics added.) Like Graham, Miller also
applies only to "lifetime incarceration without possibility of parole." (Miller, supra, 567
U.S. ___, 132 S.Ct. at p. 2475, italics added.)
12 As we have done in connection with evaluating Abernathy's arguments, we will
assume without deciding that Caballero's holding that de facto life sentences without
parole against a juvenile offender are barred by the Eighth Amendment for nonhomicide
crimes (Caballero, supra, 55 Cal.4th at p. 268) is also applicable to homicide crimes,
such as the murder convictions here.
13 Jordan acknowledges that "he was given a 25[-]year[-]to[-]life term and thus is
eligible for parole when he is in his early 40's[,] possibly sooner."
32
Because Jones and Jordan were both sentenced to a term of 25 years to life, it is
possible that they will be paroled from prison while they are in their forties, far before
they are at the end of their life expectancy. Accordingly, Jones and Jordan have not been
sentenced to a de facto prison term of life without parole, and neither Graham nor Miller
apply. Under similar circumstances, our colleagues in People v. Perez (2013) 214
Cal.App.4th 49 (Perez) rejected the defendant's argument that a term of 30 years to life,
for a nonhomicide crime committed at the age of 16, was cruel and unusual punishment
under the Eighth Amendment. As Perez explained, because the defendant was eligible
for release from prison at age 47, "by no stretch of the imagination can [the] case be
called a 'functional' or 'de facto' [life without parole sentence], and therefore neither
Miller, Graham, nor Caballero apply." (Id. at p. 58.)
We further reject Jordan's and Jones's contention that their sentences should be
determined to be cruel and unusual punishment under Miller and Graham because they
are juvenile offenders who purportedly "neither killed nor intended to kill." As the basis
for this argument, Jordan and Jones point out that although they were convicted of first
degree murder, neither of them shot at Berki and there was no evidence that they knew
Abernathy was going to do so.
We need not decide whether, for the purposes of an Eighth Amendment analysis, a
juvenile offender convicted of first degree murder under a felony-murder theory but who
did not personally kill anyone should be treated as having committed a homicide crime or
33
a nonhomicide crime.14 Under either approach, Jordan's and Jones's sentences do not
violate the Eighth Amendment as clarified in Miller and Graham. If Jones and Jordan
committed a homicide crime, then Miller applies, and the Eighth Amendment bars a
mandatory term of life in prison without parole. (Miller, supra, 567 U.S. ___, 132 S.Ct at
p. 2475.) If Jones and Jordan committed a nonhomicide crime, then Graham and
Cabellero apply, and the Eighth Amendment bars a de facto sentence of life in prison
without parole (Graham, supra, 560 U.S. at p. 74; Caballero, supra, 55 Cal.4th at
p. 268). But, as we have explained, Jones and Jordan did not receive either a mandatory
or a discretionary life sentence without the possibility of parole. Instead, they are eligible
for release from prison when they are in their forties. Therefore, the sentences do not
constitute cruel and unusual punishment regardless of whether Jones and Jordan
committed a homicide crime or a nonhomicide crime by participating in a felony murder,
and regardless of whether Graham or Miller applies.
b. Disproportionate Sentences
As a second federal constitutional argument, Jordan and Jones contend that,
regardless of the holdings in Miller and Graham, their sentences are unconstitutional
14 Jordan's and Jones's argument that they neither killed nor intended to kill is a
reference to the statement in Graham that "when compared to an adult murderer, a
juvenile offender who did not kill or intend to kill has a twice diminished moral
culpability" and thus should not be subjected to life in prison without parole. (Graham,
supra, 560 U.S. at p. 69.) In Miller, Justice Breyer argued in his concurrence that a
defendant convicted under a felony-murder theory may not have killed or intended to kill,
and the Eighth Amendment analysis in Graham should accordingly apply in such cases.
(Miller, supra, 567 U.S. ___, 132 S.Ct. at pp. 2475-2477.) As we have explained, we
need not resolve the issue.
34
under the Eighth Amendment because they offend principles of proportionality that are
applicable to all defendants, not just juvenile offenders.
As our Supreme Court has explained, "the Eighth Amendment contains a 'narrow
proportionality principle,' that 'does not require strict proportionality between crime and
sentence' but rather 'forbids only extreme sentences that are "grossly disproportionate" to
the crime.' " (Graham, supra, 560 U.S. at pp. 59-60, quoting concurrence of Kennedy, J.
in Harmelin v. Michigan (1991) 501 U.S. 957, 997, 1000-1001.) In "determining
whether a sentence for a term of years is grossly disproportionate for a particular
defendant's crime," "[a] court must begin by comparing the gravity of the offense and the
severity of the sentence. [Citation.] '[I]n the rare case in which [this] threshold
comparison . . . leads to an inference of gross disproportionality' the court should then
compare the defendant's sentence with the sentences received by other offenders in the
same jurisdiction and with the sentences imposed for the same crime in other
jurisdictions. [Citation.] If this comparative analysis 'validate[s] an initial judgment that
[the] sentence is grossly disproportionate,' the sentence is cruel and unusual." (Graham,
supra, 560 U.S. at p. 60.) "The gross disproportionality principle reserves a
constitutional violation for only the extraordinary case." (Lockyer v. Andrade (2003) 538
U.S. 63, 77.) Jones and Jordan argue that because they were convicted under a felony-
murder theory and did not directly participate in killing Berki, a comparison of the
gravity of their offenses with the severity of their sentences leads to the conclusion that a
prison sentence of 25 years to life is grossly disproportionate to their crimes.
35
In a similar argument, Jones and Jordan also rely on case law developed under the
California Constitution prohibiting disproportionate sentences. Article I, section 17 of
the California Constitution prohibits the infliction of "[c]ruel or unusual punishment." A
sentence will not be allowed to stand under the California Constitution "if 'it is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.' " (People v. Carmony (2005) 127
Cal.App.4th 1066, 1085, citing In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch); People v.
Dillon (1983) 34 Cal.3d 441, 478 (Dillon).)
Under California law, a defendant attacking a sentence as cruel or unusual "must
demonstrate his punishment is disproportionate in light of (1) the nature of the offense
and the defendant's background, (2) the punishment for more serious offenses, or
(3) punishment for similar offenses in other jurisdictions." (In re Nunez (2009) 173
Cal.App.4th 709, 725.) The defendant "need not establish all three factors—one may be
sufficient [citation], but the [defendant] nevertheless must overcome a 'considerable
burden' to show the sentence is disproportionate to his level of culpability [citation]. As a
result, '[f]indings of disproportionality have occurred with exquisite rarity in the case
law.' " (Ibid.) Although California case law sets forth three factors to consider in
conducting a proportionality analysis, "the sole test remains . . . whether the punishment
'shocks the conscience and offends fundamental notions of human dignity.' " (Dillon,
supra, 34 Cal.3d at p. 487, fn. 38.) "Successful challenges based on the traditional
Lynch-Dillon line are extremely rare." (Perez, supra, 214 Cal.App.4th at p. 60.)
36
Jones and Jordan do not argue that a prison sentence of 25 years to life for first
degree murder is disproportionate to (1) the punishment for more serious offenses, or
(2) the punishment for first degree murder in other jurisdictions. Instead, Jordan and
Jones limit their argument to the first factor described in the case law, i.e., whether their
sentence is grossly disproportionate to the nature of the offense and their personal
backgrounds. As this issue overlaps with the central issue posed by the federal
proportionality analysis, i.e., whether the sentence is grossly disproportionate to the
gravity of the offense (Graham, supra, 560 U.S. at p. 60), we consider both the federal
and state constitutional proportionality challenges together. In conducting our analysis,
"[w]e examine both the seriousness of the crime in the abstract and 'the totality of the
circumstances surrounding the commission of the offense . . . , including such factors as
its motive, the way it was committed, the extent of the defendant's involvement, and the
consequences of his acts.' " (Em, supra, 171 Cal.App.4th at p. 972.)
Turning to the nature of the crime, felony murder committed during a robbery is a
serious and dangerous crime. As our Supreme Court has observed, "when it is viewed in
the abstract robbery-murder presents a very high level of such danger, second only to
deliberate and premeditated murder with malice aforethought." (Dillon, supra, 34 Cal.3d
at p. 479.) Jones and Jordan argue, however, that in the unique circumstances of this
case, a 25-year-to-life sentence for felony murder is disproportionate to the gravity of the
crime because they were not the shooters, they had minimal or nonexistent criminal
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history prior to this case,15 and they were juveniles when they committed the instant
offenses. As we will explain, we reject these arguments, and conclude that a sentence of
25 years to life was not grossly disproportionate to Jones's and Jordan's crime of felony
murder.
First, although Jones and Jordan did not personally shoot Berki, they were
nevertheless convicted of felony murder based on their willing participation in an armed
robbery. "Life sentences pass constitutional muster for those convicted of aiding and
abetting murder, and for those guilty of felony murder who did not intend to kill." (Em,
supra, 171 Cal.App.4th at pp. 972-973.) Indeed, in Em, the court rejected a similar
disproportionality argument, affirming a sentence of 50 years to life for a defendant
convicted of felony murder for a murder that occurred when he was 15 years old. The
defendant in Em was not the shooter, but he was a participant in an armed robbery, during
which his companion shot the person they were trying to rob. (Id. at pp. 967-968.) Em
explained that "[a]lthough defendant did not shoot the gun himself, the robbery and
murder took place with his culpable involvement. Defendant's participation in the crime
was demonstrably not 'passive . . . .' " (Id. at p. 975.) As here, the facts in Em supported
the conclusion that the "[d]efendant committed this crime, not because he was in the
15 Jordan had no criminal history prior to this case, but the evidence at trial was that
he was a documented gang member as of February 2008. Jones had several true findings
as a juvenile, of increasing seriousness, for petty theft, resisting an officer, and assault
with a deadly weapon during a gang-related shooting. The evidence at trial was that
Jones was a documented gang member as of January 2009.
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wrong place at the wrong time, but because he has a complete disregard for the rule of
law and lack of respect for human life." (Id. at p. 976.)
Similar to Em, other cases have rejected arguments by juvenile offenders that a
sentence for first degree murder violates the proportionality principle of the California
Constitution even though the defendant was not the person who committed the killing,
when the defendant knowingly participated in a serious crime that led to the murder.
(People v. Gonzales (2001) 87 Cal.App.4th 1, 7, 16 [rejecting a proportionality challenge
to 50-year-to-life sentences imposed on juvenile offenders for first degree murder, when
the defendants were not shooters but participated in an armed attack]; People v. Ortiz
(1997) 57 Cal.App.4th 480, 486-487 [affirming a 26-year-to-life sentence for a 14-year-
old gang member convicted of felony murder occurring when his companion shot
someone during a robbery].)
Next, a focus on Jones's and Jordan's personal characteristics also results in the
conclusion that the sentence is not grossly disproportionate. As case law directs, we
inquire "whether the punishment is grossly disproportionate to the defendant's individual
culpability as shown by such factors as his age, prior criminality, personal characteristics,
and state of mind." (Dillon, supra, 34 Cal.3d at p. 479.)
As the trial court pointed out, both Jordan and Jones were culpable participants in
the events leading up to the murder. Jones threatened Berki with a firearm during the
robbery and demanded money. Jordan was the getaway driver in a car that he had stolen.
The defendants' comments to each other in the jail cell after they were arrested showed
no remorse and provided no indication that this was an exceptional circumstance where
39
either Jordan or Jones unknowingly participated in, or were pressured to take part in,
criminal activity. On the contrary, even though there was evidence at trial that Abernathy
may not have been a gang member, it is undisputed that both Jordan and Jones were
active members of criminal street gangs. In addition, Jones had a criminal history of
escalating seriousness, which included taking part in a violent gang assault. Therefore,
we do not perceive this as a situation where the defendants' personal characteristics and
role in the commission of the crimes make a sentence of 25 years to life in prison a
grossly disproportionate punishment for the crime of first degree murder.
Jones and Jordan argue that this case is like Dillon, supra, 34 Cal.3d 441, in which
our Supreme Court concluded that a juvenile offender convicted of felony murder should
have his punishment reduced to the applicable sentence for second degree murder based
on principles of proportionality under the California Constitution. (Dillon, at p. 489.) In
Dillon, the court explained that the defendant was 17 years old during the crime and had
shot the victim nine times in a panic during an unsophisticated attempt to steal from a
marijuana farm. (Id. at p. 452.) Concluding that the indeterminate life term for first
degree murder was a disproportionate sentence because of the defendant's immaturity and
the nature of his crime, Dillon explained, "at the time of the events herein defendant was
an unusually immature youth. He had had no prior trouble with the law, and . . . was not
the prototype of a hardened criminal who poses a grave threat to society. . . . [W]ith
hindsight his response might appear unreasonable; but there is ample evidence that
because of his immaturity he neither foresaw the risk he was creating nor was able to
extricate himself without panicking when that risk seemed to eventuate." (Id. at p. 488.)
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Because of the sophisticated nature of the robbery that Jordan and Jones
participated in here, the absence of any evidence that they were particularly immature or
that they failed to appreciate the risk of violence in committing an armed robbery, as well
as the fact that Jordan and Jones were members of criminal street gangs, this is simply
not a case like Dillon where the felony murder was the result of the actions of an
immature youth who did not foresee the risks inherent in his behavior. As has long been
acknowledged, "Dillon's application of a proportionality analysis to reduce a first degree
felony-murder conviction must be viewed as representing an exception rather than a
general rule." (People v. Munoz (1984) 157 Cal.App.3d 999, 1014.)
We agree with the trial court that, unlike Dillon, this is not a case "that is so
unusual and mitigating, either the crime or the defendants, that the statutory mandated
sentence by the Legislature is unconstitutional." Therefore, we reject Jordan's and Jones's
argument that their sentences are grossly disproportionate under either the federal or state
Constitutions.
D. Defendants' Presentence Custody Credit
In each of their opening briefs, defendants argued that the trial court incorrectly
calculated the applicable presentence custody credit pursuant to section 2900.5 in that it
awarded 751 days of credit instead of 752 days. As defendants point out, they were
arrested late on the night of May 11, 2011, and sentenced on May 31, 2013, which
encompasses 752 days of presentence custody, but the trial court awarded only 751 days
of presentence custody credit.
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During the pendency of the appeal, Jones applied for and obtained an order from
the trial court correcting the error. Accordingly, Jones's appeal on the presentence
custody credits is moot, and we do not address it further.
However, Jordan and Abernathy did not apply for relief from the trial court. We
have the authority on appeal to amend the judgment to award the correct amount of
presentence custody credits. (People v. Acosta (1996) 48 Cal.App.4th 411, 427-428;
People v. Donan (2004) 117 Cal.App.4th 784, 792-793.) Based on evidence that the
three defendants were each in custody from May 11, 2011, to May 31, 2013, and the trial
court's conclusion that Jones should have received an extra day of presentence custody
credit, we conclude that Jordan and Abernathy are also entitled to an extra day of
presentence custody credit. We accordingly modify the judgment to award Jordan and
Abernathy 752 days of presentence custody credit instead of 751 days.
E. Correction of Clerical Error in the Abstract of Judgment Regarding Jones's
Sentence
At sentencing, the trial court ordered that Jones's five-year sentence on count 4 for
shooting at an occupied vehicle (§ 246) was to be stayed pursuant to section 654.
However, the trial court's minute order and the abstract of judgment erroneously state that
count 4 was ordered to run concurrently with the other counts.
The record of the trial court's oral pronouncement of sentence controls over a
conflicting minute order or abstract of judgment. (People v. Farell (2002) 28 Cal.4th
381, 384; People v. Mesa (1975) 14 Cal.3d 466, 471.) Based on this principle, the
Attorney General concedes that the abstract of judgment should be corrected to reflect the
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trial court's decision to stay the sentence on count 4. We accordingly direct that Jones's
abstract of judgment be corrected to show that the trial court ordered that the sentence on
count 4 be stayed pursuant to section 654.
DISPOSITION
As to Abernathy and Jordan, we direct the trial court to amend the abstract of
judgment to award an additional day of presentence custody credit. As to Jones, we
direct the trial court to amend the abstract of judgment to reflect that Jones's sentence on
count 4 is stayed pursuant to section 654. The trial court shall forward the amended
abstracts of judgment to the Department of Corrections and Rehabilitation. In all other
respects, the judgments are affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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People v. Jordan
Combined Opinion