Sentence of life without parole constitutes cruel and unusual punishment for minor who shot and killed two people in gang confrontation. The two teenage defendants, Armendariz and Ramirez, along with an adult, Menchaca, shot and killed two people during a gang “hit up” (i.e., asking someone what gang he belongs to). Armendariz and Ramirez were each convicted of one count of first degree murder and one count of second degree murder, gang activity, and gun use. Four special circumstances were found true against Ramirez. Ramirez received LWOP plus 65 years; Armendariz 90 years to life. They appealed, raising numerous issues. Held: Both defendants’ sentences reversed; first degree murder as to Armendariz reversed. Under Graham v. Florida (2010) 560 U.S. 48 and Miller v. Alabama (2012) 567 U.S. __, the sentences must be reversed. The trial court thought the LWOP sentence was mandatory for Ramirez, when in fact, under Penal Code section 190.5, subdivision (b), it is not. The 90 year-to-life term Armendariz received was the functional equivalent of LWOP under People v. Caballero (2012) 55 Cal.4th 262. The court failed to take into account the defendants’ youth, with its attendant immaturity, underdeveloped sense of responsibility, and greater capacity for redemption, in imposing sentence. Upon remand, any sentence amounting to LWOP or its functional equivalent would qualify as cruel and unusual punishment. The enactment of section 1170, subdivision (d)(2), (allowing qualified minors sentenced to LWOP to seek sentence review after serving 15 years) supports the decision here; if even the most egregious juvenile offenders (who receive LWOP), may seek sentence review, this strongly suggests the Legislature would not approve a theoretically lesser sentence which may subject a minor to serving a greater term. The trial court did not abuse its discretion by admitting prior acts evidence. Armendariz challenged the trial court’s admission of evidence of three prior incidents in which Armendariz was the shooter in a gang “hit up.” Ramirez favored the evidence to support his defense that Armendariz was the shooter in the current crime. The evidence was relevant to show Armendariz’s knowledge of the gang’s pattern of criminal activity and his intent to commit crimes for its benefit. Further, admission of evidence did not violate Evidence Code section 352.
Errors in the other crimes evidence instructions was harmless. Although Ramirez desired the other crimes evidence to bolster his defense that Armendariz was the shooter, he claimed the instruction, a modified version of CALCRIM 375, undermined his defense by failing to tell the jury how to consider that evidence. The instruction said that if the jury found by a preponderance of the evidence that Armendariz committed the uncharged offenses, it “may” but “was not required to” consider whether Ramirez was the shooter in the present case. This was error for two reasons. Ramirez needed only to raise a reasonable doubt that he was the shooter in the present case, he had no burden to prove Armendariz was the shooter in the prior cases before the jury could consider the evidence. Secondly, the instruction gave the jury the option of disregarding the evidence, which it may not do. However, because the instruction did not delineate an element of the charge, the error is not reversible as to Ramirez under the Watson standard.
Armendariz’s first degree murder conviction must be reversed for instructional error. The prosecution argued Armendariz, the nonshooter, could be convicted either as an aider and abettor or under the natural and probable consequences doctrine. The instruction given on the distinction between first and second degree murder effectively allowed the jury to determine the proper degree of murder based upon whether Ramirez premeditated, rather than Armendariz’s intent. Further, as to the natural and probable consequences doctrine, the jury was not instructed to find that Ramirez’s premeditation was itself a natural and probable consequence of whatever lesser crime Armendariz intended to commit. “When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.” (Alleyne v. U.S. (2013) 133 S.Ct. 2151.) Reversal is required.
The trial court did not erroneously deny the defendants’ severance motion. Defendants requested separate trials because they presented antagonistic defenses. Section 1098 expresses a legislative preference for joint trials and if antagonistic defenses alone required separate trials, this would defeat legislative intent. Only where the conflict is so prejudicial that the defenses are irreconcilable and the jury will unjustifiably infer that the conflict alone demonstrates the guilt of each defendant, is severance required.
