California Court of Appeal Jul 22, 2014 No. D061946Published
Before: Benke
Synopsis
[CERTIFIED FOR PARTIAL PUBLICATION*]
Filed 7/22/14
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061946
Plaintiff and Respondent,
v. (Super. Ct. No. SCD228929)
LEOPOLDO CHAVEZ et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of San Diego County, Joan P.
Weber, Judge. Affirmed in part and reversed in part.
Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and
Appellant Leopoldo Chavez.
Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and
Appellant Edward Elias.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I through V and VII of the Discussion.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie
Featherman Fraser , Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendants and appellants Leopoldo Chavez and Edward Elias of
two counts of first degree murder (Pen. Code, § 187, subd. (a))1 and found true the
special circumstances of robbery-murder (§ 190.2, subd. (a)(17)) and multiple murders
(§ 190.2, subd. (a)(3)). The jury further found that Chavez and Elias were armed with a
firearm within the meaning of section 12022, subdivision (a)(1). Following their
convictions, the court sentenced Chavez and Elias to two consecutive terms of life
imprisonment each, without the possibility of parole, plus an additional consecutive year.
The court later recalled the sentences to consider whether to impose a lesser punishment
under section 190.5, subdivision (b), because Chavez and Elias were under the age of 18
at the time of their offenses. After a further hearing, the court declined to modify the
sentences.
Chavez and Elias appeal, contending that the evidence was insufficient to convict
them of first degree murder or to support the special circumstances findings. They
further contend that (1) the court erred in instructing the jury using a modified version of
CALCRIM No. 376, (2) the court erred by not instructing the jury regarding the natural
and probable consequences doctrine, (3) the prosecutor committed prejudicial misconduct
during closing arguments, (4) the sentences of life imprisonment without the possibility
of parole violate the Eighth Amendment of the United States Constitution because they
1 Further statutory references are to the Penal Code unless otherwise noted. 2
were juveniles at the time of their offenses, and (5) the court erred by imposing parole
revocation fines.
With two exceptions, we reject defendants' contentions on appeal. As we set forth
more fully below, the 20- and 23-year-old victims were sailors enlisted in the United
States Navy, one of whom was driving a brand new Toyota pickup truck. The victims
were murdered at a location where young adults, including other Navy personnel and
their friends, frequently gathered to drink, listen to music and socialize around a number
of bonfires. Multiple witnesses recalled that Chavez, who was 17 at the time of the
killings, was at the scene of the bonfires shortly before the murders took place. The
witnesses also uniformly recalled that Chavez was in the company of at least one other
teenager or young adult and that Chavez and his companion were acting in a very
aggressive and threatening manner toward other Navy personnel and their friends present
at the bonfires. Four days after the murders, Chavez was stopped in Tijuana, Mexico
while driving the 20-year-old victim's new Toyota pickup truck. Importantly, some years
after the murders, investigators were able to match DNA retrieved from the pants pocket
of the 20-year-old victim with Chavez's DNA.
The witnesses' identification of Chavez as being present at the bonfires shortly
before the murders, his possession of the truck following the murders, and his DNA in
the pants pocket of one of the victims, make a strong case Chavez participated in the
truck robbery and the killings.
With respect to Elias, who was also 17 at the time of the murders, the record is
sufficient to sustain his conviction and the special circumstances findings. Within just a
few hours after the killings, investigators found a cigarette butt at the scene of the
3
murders among items that had been taken out of the Toyota truck. Later, investigators
were able to match DNA on the cigarette butt with Elias's DNA. Elias's DNA was also
found on a cup recovered from inside the victim's truck when it was stopped in Tijuana
after the murders. In addition to the DNA on the cup, Elias's fingerprints were found
both inside and outside of the truck.
The cigarette butt Elias left at the scene of the murders, with ash still attached,
very near items discarded from the truck and recovered very shortly after the murders,
places Elias at that location at or near the time of the murders. Elias's DNA, found in the
cup retrieved from the truck, and his fingerprints, found both inside and outside of the
truck, place Elias in the truck with Chavez shortly after the time it was stolen and near the
time of the killings. These circumstances support the conclusion Elias was Chavez's
companion at the bonfires and an active participant in the robbery and killings.
Thus, there is sufficient evidence to support Chavez's and Elias's murder
convictions as well as the jury's felony-murder and multiple-murder special
circumstances findings. We also reject defendants' claims that they were prejudiced by
instructional error and that the prosecutor engaged in misconduct.
Because defendants were sentenced before Miller v. Alabama (Ala.Crim.App.
2010) 63 So.3d 676, certiorari granted June 25, 2012, ___ U.S. ___ [132 S.Ct. 2455]
(Miller) and People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez) were decided and,
because the record here does not show that the trial court had the opportunity to directly
consider the ultimate issue presented in those cases, we reverse the life sentences without
possibility of parole and remand for resentencing in light of Miller and Gutierrez. We
also agree the trial court erred in imposing parole revocation fines.
4
FACTS
A. The Palms Bonfires
Early in the autumn of 1993, a large area of undeveloped land located near the
intersection of Interstate 805 and Palm Avenue in southern San Diego County was known
as "the Palms." The Palms was for the most part barren dirt and, on a fairly regular basis,
it was the site of multiple simultaneous bonfires attended by various groups of young
adults. Navy personnel and their friends who frequented a country western club located
on a local Navy base, Anchors and Spurs, often met at the Palms after Anchors and Spurs
closed for the night and socialized together around one or more of the bonfires.
On the night of September 24, 1993, a number of people from Anchors and Spurs
attended a party at the Palms where there were two Anchors and Spurs bonfires.
Witnesses estimated that the number of attendees ranged from 20 to 50 people. At the
party, people smoked cigarettes, drank beer, and mingled. It was very foggy.
Two United States Navy sailors, 23-year-old Keith Combs (Combs) and 20-year-
old Eugene "Cliff" Ellis (Ellis), were present at the Anchors and Spurs bonfires. Both
young men carried wallets, base passes and military identification. Combs smoked
exclusively Marlborough cigarettes.
That night, Ellis drove a brand new white Toyota pickup truck, which he had
recently purchased with financial help from his father. Ellis's truck had fewer than 1,000
miles on the odometer. Ellis and Combs arrived at the Palms with two other sailors at
approximately 7:30 p.m. but went back to their base with their two companions around
11:00 p.m. Once back at the Navy base, Ellis and Combs decided to return to the Palms.
5
When they returned to the party, Ellis parked his truck with the back bumper facing one
of the Anchors and Spurs bonfires.
B. Aggressive and Uncomfortable Behavior
During the hour between 4:00 a.m. and 5:00 a.m., members of the Anchors and
Spurs party had experiences ranging from uncomfortable to distressing at and near where
Ellis parked his truck.
1. Behmke
About 4:00 a.m., Barbara Behmke drove an Anchors and Spurs partygoer to the
Balboa Naval hospital. Behmke's acquaintance had been in a fight at one of the bonfires
and was bleeding. Behmke stayed at the hospital for a short period but returned to the
Palms to look for a friend and find a jacket she had left at one of the bonfires. When
Behmke returned to the site of the bonfires, she encountered four young Hispanic males.
Two of the young men approached her. Behmke was later able to identify Chavez as one
of the two young men. Chavez made sexual gestures and remarks that made Behmke
very uncomfortable. According to Behmke, in response to her uncomfortable encounter
with Chavez and his companion, she got in her truck and immediately left the area.
2. Duvall
Justin Duvall was also an enlisted member of the Navy and at the Anchors and
Spurs bonfires on the morning of September 25, 1993. Around 5:00 a.m., two teenagers
approached Duvall.2 Duvall was later able to identify Chavez as one of the two
teenagers who approached him. The pair asked Duvall for beer. One of the two
2 A third teenager was with the other two before any words were exchanged, but he did not approach Duvall. 6
teenagers had his hand behind his back in a manner that Duvall felt was very threatening.
When Duvall declined to give them beer, Chavez and his companion responded "you
fucking cowboys, we don't like your music." After Chavez and his companion returned
to their own bonfire, Duvall immediately left the Palms with his friends. According to
Duvall, he left immediately after his encounter with Chavez and his companion because:
"I felt uncomfortable. I knew something wasn't right. That's when I decided we better
leave."
3. Forde
Stephen Forde was parked next to, and within four to five feet of, Ellis's truck at
the Anchors and Spurs bonfire. On that evening, Forde was 18 years old and, like Combs
and Ellis, an enlisted member of the Navy. Forde was concerned about and keeping an
eye on a friend who was somewhat intoxicated. Forde noticed two teenage males, one of
whom he was able to identify as Chavez, sitting in a vehicle about 15 feet outside the
circle of cars at the Anchors and Spurs bonfire. Chavez and his companion caused Forde
to be concerned. They were laughing, and something about their mannerisms made
Forde feel that he needed to move away from the vehicle the teenagers were in and get to
the other side of the bonfire. Forde thought Chavez and his companion were acting like
"smart asses." When Chavez got out of the vehicle he was in and walked toward the rear
of the vehicle, Forde moved to the opposite side of the bonfire. Forde left the Palms
about 5:00 a.m.
4. Kowalow
At approximately 5:00 a.m., Kristeen Kowalow saw three young men drive up to
the Anchors and Spurs bonfire in a light-colored pickup truck with a camper shell. They
7
appeared to be Hispanic. Two of the young men got out of the vehicle, hung out at the
back of their vehicle and began talking to Kowalow. When Kowalow was shown a
photographic lineup, she testified that Chavez's photograph looked familiar. The two
young men were dressed in baggy clothing, and their attitude made people in Kowalow's
group nervous; because of how the two young men made them feel, Kowalow and her
friends left the Palms bonfires around 5:00 a.m. When Kowalow left, the only people
remaining at the bonfire were two sailors and the three young men in the light-colored
pickup truck. The only vehicles left were the light-colored pickup truck and a newer
white pickup truck. Kowalow later told investigators the pictures of Ellis and his truck
looked familiar.
5. Macy
Mary Macy and three friends were also at the Anchors and Spurs bonfire where
Ellis had parked his truck. Although defendants' trial took place almost 19 years after the
murders, Macy had a distinct memory of Ellis's truck because: "It was brand new, and I
was admiring it, that that was the type of truck that I liked, that I would like to buy."
About 5:00 a.m., Macy suddenly realized just about everyone appeared to have
left the bonfire party. She had a "bad feeling." Macy told her companions "we need to
get out of here. Something is going on." Her companions got into Macy's vehicle. As
Macy started to get into the driver's side of her car, a light-colored pickup truck with a
camper shell pulled up next to her. Two young men were inside. One rolled a window
down, and the two spoke to her in English but with what she believed were Hispanic
accents. The two young men made Macy nervous, and she ignored them and left with her
8
friends. When Macy was leaving, she noticed that only Ellis's brand new truck was still
at the Anchors and Spurs bonfire. She did not see Ellis or Combs.
C. Crime Scene and Investigation
Between 7:00 a.m. and 7:30 a.m., a woman and her daughter were searching the
Palms area for their son and brother and discovered the bodies of Combs and Ellis.
Ellis's new pickup truck was no longer in the area.
1. Examination of Remains
Ellis's and Combs's bodies were in the dirt about 16 feet apart at the site of an
extinguished bonfire. Their bodies were pointed in the same direction, nearly parallel to
each other and angled slightly toward each other at the heads.
Ellis was found face-up. His body had fresh abrasions and bruises on his face and
right lower leg, including a scratch on his face below his eye. There was also an abrasion
on the back of his head or upper part of his neck that was not caused by a bullet wound.
Ellis's clothing was uncharacteristically disheveled, with his shirt untucked and his belt
undone. A U.S.S. Constellation ball cap was found lying between Ellis's feet. It was
crumbled and had dried vegetation on it, as if someone had stepped on it. Blood was
found on the ground on the vegetation area near Ellis and on his shirt. He also had dried
vegetation stuck to his face. Because of the positioning of the body and location of
blood, investigators concluded that he was initially face-down after being shot and had
been rolled over onto his back before his body was discovered.3
3 At trial, Chavez offered expert testimony that Ellis was facedown for an extended period time, minutes or hours, before being rolled over.
9
Combs was found lying face-down on the ground, with dirt kicked up on his pant
leg and arm.
Post mortem examination of the bodies revealed that each had suffered three fatal
gunshot wounds, six shots in total, all fired by a single gun. Ellis had an entrance
gunshot wound in his chest; he also had a gunshot wound at his forehead and one in his
back. The shot to Ellis's chest was accomplished at a distance. The shot to his head was
made at very close range, within approximately an inch. Ellis was alive at the time of
each shot.
Combs was shot at close range, at three or four inches, in the middle of his back
close to his spine. This fractured the left side of his spine and rib and perforated the aorta
and left lung. He was also shot in the top of his head and at his left temple. Two of the
projectiles were recovered from his brain. Combs was also still alive when each shot was
inflicted, but any one of the wounds would have caused his death within minutes.
The coroner testified that Ellis and Combs died at some point between 1:20 a.m.
and 5:20 a.m.
2. Crime Scene DNA
At the scene of the killings, on the ground between the bodies and clustered
together within several square feet, investigators found various car care accessories that
appeared to be from Ellis's truck, including a can of Armor All tire foam, a can of
polishing compound, a scrub brush, a map, and a college brochure with Ellis's
fingerprints on it. The items were collected by investigators as a single evidentiary item,
item 6. A white shoe box was among the items from Ellis's truck identified in item 6, and
it appeared the other items in item 6 had, at one point, been in the shoe box.
10
Within the area where investigators found the items identified in item 6, and near
the scrub brush, investigators also found a recently smoked cigarette butt. The butt was
from a Marlborough cigarette, the brand Combs smoked. It was collected separately as
evidence item 7. The item 7 cigarette butt was 11 feet from Ellis's foot and 17 feet 8
inches from Combs's foot. The cigarette butt had ash still attached. Despite many
footprints in the area and next to the bodies, no dust, dirt, footprints or tire tracks were on
the cigarette butt, leading investigators to conclude it had recently been dropped there.
Subsequent DNA testing revealed Elias was a major contributor to DNA found on the
item 7 cigarette butt.4 Additional, more sophisticated DNA testing revealed that the
cigarette may have been smoked by as many as two other persons.
A second Marlborough cigarette butt, identified as evidence item 8, was found two
feet two inches north of Combs. It had Combs's DNA on it. Like the first cigarette butt
with Elias's DNA on it, this second cigarette butt also appeared recently smoked, as it had
ash and a bit of paper remaining yet no footprints, dirt or dust on it. This cigarette butt
was also believed to have been recently left at the scene.
Investigators also collected "touch" DNA samples from Ellis's pants pockets.
Chavez was found to be a major DNA contributor to those samples. Investigators were
unable to find either Combs's or Ellis's wallet or their military identification, which they
would have needed to return to their Navy base.
4 Although investigators collected evidence at the scene for DNA testing, the testing itself did not take place until more than a decade later after testing methods had improved. 11
3. Recovery of Ellis's Toyota Truck
Four days after the murders of Combs and Ellis, Chavez was found driving Ellis's
pickup truck in Tijuana, Mexico. Neither the locks nor the ignition had been forced, and
the keys were found in the truck. Investigators recovered fingerprints from both Chavez
and Elias on various surfaces of the interior and exterior of the truck. Chavez's
fingerprints were found on the driver's side door, the driver's side mirror, the rearview
mirror, the exterior passenger side cab and front fender, and the front hood. Elias's
fingerprints were found on the passenger side door and window, the rearview mirror, the
rear sliding window, and the front hood. Elias's fingerprints were also found on a juice
bottle in the truck. A red cup was found in the truck as well, and testing showed that both
Chavez and Elias were major DNA contributors to samples recovered from the cup.
Chavez's DNA was also recovered from a bloody bandage in the truck
DISCUSSION
I
A
Chavez and Elias contend that the evidence is insufficient to support their
convictions. "The applicable standard of review is well settled: '"To determine the
sufficiency of the evidence to support a conviction, an appellate court reviews the entire
record in the light most favorable to the prosecution to determine whether it contains
evidence that is reasonable, credible, and of solid value, from which a rational trier of fact
could find the defendant guilty beyond a reasonable doubt."' [Citations.] '"'If the
circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing
court that the circumstances might also be reasonably reconciled with a contrary finding
12
does not warrant a reversal of the judgment.'"' [Citations.] The standard of review is the
same when the prosecution relies mainly on circumstantial evidence. [Citation.]"
(People v. Valdez (2004) 32 Cal.4th 73, 104.)
"In resolving claims involving the sufficiency of evidence, a reviewing court must
determine 'whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.' [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 34.)
"[T]he relevant question on appeal is not whether we are convinced beyond a reasonable
doubt, but whether any rational trier of fact could have been persuaded beyond a
When conducting this review, "[t]he appellate court presumes in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft).) However, mere
speculation or conjecture is insufficient to create a reasonable inference or support a
finding of fact. (People v. Marshall, supra, 15 Cal.4th at p. 35.) Evidence that gives rise
only to a suspicion of guilt is likewise insufficient. (Ibid.)
At trial, the prosecution argued that Chavez and Elias were guilty of first degree
murder through either (1) aiding and abetting the deliberate, premeditated murders of
Combs and Ellis or (2) aiding and abetting a robbery that resulted in their deaths. We
will affirm the convictions if either of the prosecution's theories are supported by the
evidence. (See People v. Seaton (2001) 26 Cal.4th 598, 645 ["when a prosecutor argues
two theories to the jury, one of which is factually sufficient and one of which is not, the
conviction need not be reversed, because the reviewing court must assume that the jury
13
based its conviction on the theory supported by the evidence"].) Because we conclude
that the evidence supports the convictions under the latter theory, we need not consider
the former. (Ibid.)
"All murder . . . which is committed in the perpetration of, or attempt to
perpetrate, . . . robbery . . . is murder of the first degree." (§ 189; see People v. Thompson
(2010) 49 Cal.4th 79, 115 ["One who unlawfully kills a human being during the
commission of a robbery or an attempted robbery is guilty of first degree murder under
the felony-murder rule."].) Liability for first degree murder under the felony-murder rule
extends to both the actual killer and, under certain circumstances, his accomplices. "Our
cases establishing the complicity of a nonkiller in a felony murder have . . . uniformly
required, at a minimum, that the accomplice have been, at the time of the killing, a
conspirator or aider and abettor in the felony." (People v. Pulido (1997) 15 Cal.4th 713,
723 (Pulido).) "[A]n aider and abettor is a person who, 'acting with (1) knowledge of the
unlawful purpose of the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by act or advice aids,
promotes, encourages or instigates, the commission of the crime.'" (People v. Prettyman
(1996) 14 Cal.4th 248, 259.) As our Supreme Court has explained, "[t]he aider and
abettor doctrine merely makes aiders and abettors liable for their accomplices' actions as
well as their own. It obviates the necessity to decide who was the aider and abettor and
who the direct perpetrator or to what extent each played which role." (People v. McCoy
(2001) 25 Cal.4th 1111, 1120.)
"A person may aid and abet a criminal offense without having agreed to do so
prior to the act. [Citations.] In fact, it is not necessary that the primary actor expressly
14
communicate his criminal purpose to the defendant since that purpose may be apparent
from the circumstances. [Citations.] Aiding and abetting may be committed 'on the spur
of the moment,' that is, as instantaneously as the criminal act itself. [Citation.]" (People
v. Nguyen (1993) 21 Cal.App.4th 518, 531-532.)
B
Chavez contends that substantial evidence does not support his conviction under
the felony-murder theory because there is no evidence showing that Chavez participated
in the robbery before Combs and Ellis were murdered.5 The felony-murder rule will not
apply "even where a cofelon committed the killing during a robbery, if the nonkiller did
not join the felony until after the killing occurred." (People v. Cavitt (2004) 33 Cal.4th
187, 200.) Here, however, the evidence supports a finding that Chavez was a participant
in the robbery prior to the murders of Combs and Ellis. Three witnesses identified
Chavez at the Anchors and Spurs bonfires prior to the killings. Chavez, accompanied by
several other males, acted in an aggressive and discomforting manner towards the
partygoers in the early morning hours before the robbery and murders. Chavez and his
companions were still there when all of the partygoers except Combs and Ellis had left.
When one partygoer tried to return to the bonfire to retrieve her jacket, Chavez made
sexual remarks to her and scared her off. When Combs and Ellis were alone with Chavez
and his companions, they were robbed and murdered. Chavez himself went through
5 In his opening brief, Chavez argued that substantial evidence did not support his conviction under the theory that he was liable for the murders of Combs and Ellis because they were the natural and probable consequences of the theft of Ellis's truck. As discussed in part III, post, the prosecution did not argue this theory at trial. On reply, Chavez acknowledges that the Attorney General is not pursuing this theory on appeal. We therefore need not address it. 15
Combs's pants pockets and took possession of Ellis's truck, which Chavez still had four
days later. This evidence supports a finding that Chavez was part of the robbery from the
beginning. (See People v. Hodgson (2003) 111 Cal.App.4th 566, 576 (Hodgson) ["The
direct evidence of the defendant's nonparticipation until after the killing in Pulido
distinguishes that case factually from the present case."].)
Chavez's conviction was not based on speculation, as Chavez contends. (See, e.g.,
People v. Holt (1997) 15 Cal.4th 619, 669 ["An inference is not reasonable if it is based
only on speculation."]; People v. Lewis (1963) 222 Cal.App.2d 136, 149 ["A conviction
based on . . . pure speculation and guess-work cannot stand."].) The finding that Chavez
aided and abetted the robbery of Combs and Ellis is the rational product of reason applied
to the ample evidence tying Chavez to the scene of the crime, the body of Combs, and the
fruits of the robbery itself. The murders of Combs and Ellis were logically and
temporally related to the underlying robbery, and the evidence supports a finding that
their killings aided the robbery by subduing Combs and Ellis so that Chavez and his
companions could steal their wallets, Ellis's truck, and whatever else of value they could
find. (See People v. Cavitt, supra, 33 Cal.4th at p. 196.) Substantial evidence therefore
supports Chavez's convictions.
C
Elias likewise contends there is insufficient evidence to support his conviction.
Elias argues that the cigarette butt found at the scene and the forensic evidence recovered
from Ellis's truck do not lead to the reasonable inference that Elias aided and abetted the
robbery. Elias's argument relies, in large part, on a misstatement of the applicable
standard of review. Elias argues that his convictions cannot stand if the evidence is as
16
consistent with guilt as with another rational conclusion that points to innocence. (See
People v. Flores (1943) 58 Cal.App.2d 764, 769 ["it is elementary law that circumstances
relied upon to establish the guilt of one accused of crime must be consistent with that
hypothesis and inconsistent with any other rational conclusion"].) However, this
principle is not a correct statement of law to be applied on appeal. "'Although it is the
duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible
of two interpretations, one of which suggests guilt and the other innocence [citations], it
is the jury, not the appellate court which must be convinced of the defendant's guilt
beyond a reasonable doubt. "'If the circumstances reasonably justify the trier of fact's
findings, the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the judgment.'"'"
(People v. Jones (2013) 57 Cal.4th 899, 961.) "Nor may a conviction be set aside
because evidence is susceptible of two reasonable inferences, one looking to guilt and
another to innocence." (People v. Lewis, supra, 222 Cal.App.2d at p. 149.)
Viewing the entire record in the light most favorable to the prosecution, and
drawing all reasonable inferences from the evidence in support of the conviction, as we
must, we conclude substantial evidence supports Elias's convictions. Our Supreme
Court's opinion in People v. Bean (1988) 46 Cal.3d 919 (Bean) is instructive. In that
case, the defendant challenged the sufficiency of the evidence supporting his convictions
for two discrete murders. The evidence tying the defendant to one of the murders bears
some similarity to the evidence here: "A pair of sunglasses bearing what the People's
experts identified as defendant's fingerprints was found next to the body of Eileen Fox,
and the defendant admitted owning a pair of similar sunglasses. In addition there was
17
evidence that defendant had been seen, possibly observing the house, in the past; that he
was living nearby with his sister; and that he was familiar with the shortcut from the
location at which the automobile, purse, and wallet were discarded to the Florin
Meadows apartments." (Id. at pp. 933-934, fns. omitted.)
With other evidence of the victim's condition, the Supreme Court found sufficient
evidence to support the defendant's first degree murder conviction and "the jury's
conclusion that the murder was committed in the perpetration of a burglary and a
robbery." (Bean, supra, 46 Cal.3d at p. 934.)
The evidentiary similarity between Bean and the instant case supports the
conclusion Elias participated in the killings and robbery. Here, just as in Bean, forensic
evidence on a small, portable object places Elias at the scene of the crime. (See Bean,
supra, 46 Cal.3d at p. 933.) While Elias was not specifically identified by any witness as
one of Chavez's companions that night, it is reasonable to infer that he was there based on
the cigarette butt and the forensic evidence recovered from Ellis's truck. Elias's
fingerprints were recovered from multiple interior and exterior surfaces on the truck, as
were Chavez's, and DNA from both Chavez and Elias was recovered from the same cup
inside the truck. Elias claims that no evidence of the relationship between Chavez and
Elias was introduced, but the forensic evidence recovered from the truck demonstrates
that they were known to each other. Moreover, the evidence tying Elias to the fruits of
the robbery is arguably stronger than the evidence considered sufficient in Bean. Elias's
fingerprints and DNA were recovered from Ellis's truck, whereas the evidence in Bean
showed only that the defendant was familiar with a route near where certain stolen goods
were discarded. (See Id. at p. 934.) Elias's attempt to distinguish Bean on the facts is
18
unpersuasive, as the evidence here is in fact more incriminating than the evidence
considered by the Supreme Court in Bean.
Although the jury convicted the defendant in Bean of first degree murder as the
perpetrator of the robbery and murder, the reasonable inferences drawn in that case from
the evidence apply equally to the aiding and abetting theory of liability pursued by the
prosecution here. Indeed, the purpose of aiding and abetting liability is to "obviate[] the
necessity to decide who was the aider and abettor and who the direct perpetrator or to
what extent each played which role." (People v. McCoy, supra, 25 Cal.4th at p. 1120; see
People v. Morante (1999) 20 Cal.4th 403, 433 ["the doctrine . . . '"snares all who
intentionally contribute to the accomplishment of a crime in the net of criminal liability
defined by the crime, even though the actor does not personally engage in all of the
elements of the crime"'"].)
"Factors relevant to a determination of whether defendant was guilty of aiding and
abetting include: presence at the scene of the crime, companionship, and conduct before
and after the offense." (People v. Singleton (1987) 196 Cal.App.3d 488, 492.)
Considering these factors, and viewed as a whole, the evidence points to Elias's
complicity and supports his conviction. Although Elias contends there is "no evidence"
of his actions or intent that night, it is reasonable to infer that Elias was present with
Chavez at the Anchors and Spurs bonfires prior to the robbery and murders, that he
waited with Chavez until Combs and Ellis were alone, that he assisted Chavez and
potentially others in robbing and murdering Combs and Ellis (or was the perpetrator
himself), and that he then left the scene with Chavez in Ellis's stolen truck. These
inferences arise out of the consistent testimony of witnesses that Chavez was present at
19
the bonfires with one or more companions, separate DNA recovered at the crime scene
which showed that Chavez and Elias had been present, and the DNA and fingerprints
found in Ellis's truck, which showed that both defendants were occupants of the truck.
Elias's culpability is reinforced by a large quantum of evidence which shows that
at least two perpetrators were needed to accomplish the robbery and double murder.
Witnesses testified that Ellis parked his truck with its rear facing the bonfire, where his
body and Combs's body were later found. Although the bodies of Ellis and Combs were
16 feet apart, their location, their parallel positioning and the location of the items
removed from the truck and dumped on the ground support the conclusion that Ellis and
Combs were killed on either side of the truck. Combs's body was found on what would
have been the passenger side of Ellis's new truck; Ellis's body, parallel to Combs's body,
was found on what would have been the driver's side of the truck, the same side where
the accessory items from the truck and the brochure were found after being removed from
the truck and dropped on the ground. The condition of Ellis's body supports an inference
he had been in a fight before he was killed. His face and neck area had contusions. His
leg had been injured. His clothing was uncharacteristically disheveled, and there was
plant debris on his face. Given the distance between the bodies, the likelihood the truck
was between them and the fact one of the victims engaged in a physical fight before
being killed, it is difficult to conclude that only one person was able to subdue, fight and
kill both victims.
Although a mere spectator may not be liable for aiding and abetting, and mere
knowledge of a perpetrator's unlawful purpose is insufficient, in light of all the
circumstantial evidence in the record, Elias's contention that his role might have been so
20
limited is speculation. (See People v. Nguyen, supra, 21 Cal.App.4th at pp. 529-530.)
As the court in People v. Allen (1985) 165 Cal.App.3d 616 stated on an analogous record:
"Under these circumstances, it is immaterial that the evidence was silent as to which
defendant actually shot [the victim]; it is virtually inconceivable that the one who did not
shoot him did not aid and abet the shooting." (Id. at p. 626.)
Elias contends that this case is similar to People v. Trevino (1985) 39 Cal.3d 667,
in which the Supreme Court concluded the evidence was insufficient to support a
defendant's conviction of first degree murder. We disagree. In that case, an eyewitness
offered potentially exculpatory testimony tending to show that the defendant was not one
of the individuals she had seen at the scene of the crime. (Id. at p. 696.) Although the
defendant's fingerprint was found in the house where the robbery and murder occurred,
the defendant had been a guest there in the past. (Id. at p. 697.) The Supreme Court
explained, "The highly speculative and equivocal identification testimony and the solitary
fingerprint of some unknown vintage do not constitute evidence which is 'reasonable,
credible and of solid value -- such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.' [Citation.]" (Ibid.) Here, the evidence tying Elias to
the crime is more robust, including, in particular, the recently smoked Marlborough
cigarette butt found between the victims' bodies very shortly after they were killed and
powerful evidence of Elias's presence with Chavez in Ellis's stolen truck. Importantly,
unlike the record in People v. Trevino, here there is no arguably exculpatory evidence in
the record.
We likewise conclude that the evidence in the record here is more compelling than
the evidence found insufficient in the various authorities cited by Elias in his briefing.
21
(See People v. Flores, supra, 58 Cal.App.2d at pp. 766-768 [evidence consisted of
defendant's fingerprint on rearview mirror of stolen car]; Birt v. Superior Court (1973) 34
Cal.App.3d 934, 938 [evidence consisted of defendant's fingerprint on cigarette lighter in
rental van used in robbery].) Substantial evidence supports Elias's convictions.
II
A
Chavez and Elias further contend that the evidence is insufficient to support the
jury's special circumstances findings of multiple murders and robbery-murder. (§ 190.2,
subd. (a)(3) & (17).) We review the sufficiency of the evidence supporting the jury's
special circumstances findings in the same manner as the evidence supporting a
conviction. "'"In reviewing the sufficiency of evidence for a special circumstance"--as
for a conviction--"the question we ask is whether, after viewing the evidence in the light
most favorable to the People, any rational trier of fact could have found the essential
elements of the allegation beyond a reasonable doubt."' [Citations.] 'In a case, such as
the present one, [where the finding is] based upon circumstantial evidence, we must
decide whether the circumstances reasonably justify the findings of the trier of fact, but
our opinion that the circumstances also might reasonably be reconciled with a contrary
finding would not warrant reversal of the judgment. [Citation.]' [Citation.]" (People v.
Cain (1995) 10 Cal.4th 1, 39 (Cain).)
22
B6
"[A] finding of guilt of two murders, at least one of which is first degree murder,
conclusively establishes the truth of the special circumstance for the actual killer . . . .
(§ 190.2, subd. (a)(3).) As to the aider and abettor who did not actually kill the victims,
however, the special circumstance requires an additional finding that he harbored an
intent to kill. (§ 190.2, subd. (c).)" (People v. Souza (2012) 54 Cal.4th 90, 110, fn. 6; see
also People v. Anderson (1987) 43 Cal.3d 1104, 1150 ["when the defendant is an aider
and abetter rather than the actual killer, intent must be proved"].)
Here, substantial evidence supports the jury's finding that Chavez and Elias
intended to kill Combs and Ellis. Chavez and Elias went to an isolated location, either
armed themselves or with armed accomplices, and waited for Combs and Ellis to be left
alone as the Anchors and Spurs party wound down. Combs and Ellis were young Navy
men who were capable of resisting robbery by a group of teenagers. It is reasonable to
infer that Chavez and Elias knew that their group was armed and that they intended to use
deadly force against Combs and Ellis in order to rob them. Once Chavez and Elias
confronted Combs and Ellis, it is likely that Chavez and Elias were concerned that
Combs and Ellis would identify them and either killed the victims themselves or intended
for their accomplices to do so. "In light of this evidence, a rational jury could conclude
6 Although in order to subject defendants to a sentence of life without possibility of parole we need only sustain one of the jury's special circumstances findings, we consider both of them. We do so because we recognize that defendants' convictions are subject to further review both in our state courts and in federal court. Our review of both findings will assist those courts in making an appropriate disposition in the event they disagree with our analysis of one special circumstance finding but not the other. 23
beyond a reasonable doubt defendant[s] intended to kill the victims in order to prevent
them from identifying [them]." (See Cain, supra, 10 Cal.4th at p. 40.)
Moreover, the location and condition of the bodies, including the fresh abrasion
found on Ellis, provide a reasonable basis to infer that Chavez, Elias, and their
accomplices collectively restrained and subdued Combs and Ellis in order to kill them.
When a witness returned to the bonfire to retrieve her jacket and interrupted them, either
shortly before or after they killed Combs and Ellis, Chavez made sexual remarks to the
witness and scared her off. After the killings, Chavez went through Combs's pockets for
valuables, someone turned Ellis's body over, and Chavez (likely with Elias) drove away
in Ellis's truck. Viewing the record as a whole, we conclude that substantial evidence
supports the jury's finding that Chavez and Elias intended to kill Combs and Ellis.
Elias argues that "[t]here was no evidence of planning, no evidence that the
participants knew the shooter was armed, and no evidence of what occurred during the
shooting or what Elias did during the shooting." However, "'[c]ircumstantial evidence
may be sufficient to connect a defendant with the crime and to prove his guilt beyond a
reasonable doubt.' [Citation.]" (Bean, supra, 46 Cal.3d at p. 933.) On appeal, we
"presume[] in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence." (Kraft, supra, 23 Cal.4th at p. 1053.) We do not
examine the record for direct evidence on specific issues. Rather, we consider whether
the evidence as a whole would be sufficient for a reasonable jury to find intent to kill
beyond a reasonable doubt. "Even if we might have made contrary factual findings or
drawn different inferences, we are not permitted to reverse the judgment if the
circumstances reasonably justify those found by the jury. It is the jury, not the appellate
24
court, that must be convinced beyond a reasonable doubt. Our task and responsibility is
to determine whether that finding is supported by substantial evidence." (Perez, supra,
2 Cal.4th at p. 1126.) Here, as we have discussed, we conclude that the jury's finding is
supported by substantial evidence.
Chavez's argument relies on extensive quotations from the prosecution's closing
argument. Chavez contends that the prosecutor's theory of intent was speculative and
unsupported. "It is elementary, however, that the prosecutor's argument is not evidence
and the theories suggested are not the exclusive theories that may be considered by the
jury." (Perez, supra, 2 Cal.4th at p. 1126.) Regardless of the prosecution's stated theory
of intent in closing arguments, we conclude that the evidence supports the jury's finding
of intent to kill here.
The jury's inference that Chavez and Elias intended to kill Combs and Ellis, where
the evidence shows that Chavez and Elias waited for Combs and Ellis to be alone,
confronted them in an armed group in the early morning hours at an isolated location, and
overpowered them in circumstances showing that multiple individuals were involved,
resulting in their violent and brutal deaths, is based on neither speculation nor guesswork.
It is the rational product of reason applied to the direct forensic and eyewitness evidence
admitted by the trial court. Substantial evidence supports the jury's multiple murder
finding.
C
"In order to support a finding of special circumstances murder, based on murder
committed in the course of robbery, against an aider and abettor who is not the actual
killer, the prosecution must show that the aider and abettor had intent to kill or acted with
25
reckless indifference to human life while acting as a major participant in the underlying
omitted (Proby).) Because a finding of intent to kill is sufficient to support this special
circumstance, our conclusion that the evidence supports such an intent in the preceding
section applies here as well. In the alternative, we conclude that the evidence supports a
finding that Chavez and Elias acted with reckless indifference to human life while acting
as major participants in the underlying felony, robbery.
"'[R]eckless indifference to human life' is commonly understood to mean that the
defendant was subjectively aware that his or her participation in the felony involved a
grave risk of death." (People v. Estrada (1995) 11 Cal.4th 568, 577.) Evidence tending
to support a finding of reckless indifference includes choosing to flee the scene of the
crime rather than assisting the victim or calling for aid. (People v. Smith (2005) 135
Cal.App.4th 914, 927 [defendant "chose to flee rather than going to [victim's] aid or
summoning help"]; Proby, supra, 60 Cal.App.4th at p. 930 ["defendant made no attempt
to assist the victim who was shot but just went on looting the safe and left the premises"];
Hodgson, supra, 111 Cal.App.4th at p. 580.) Knowledge that a defendant's accomplices
are armed likewise tends to support a finding of reckless indifference. (See Hodgson, at
p. 580 ["Appellant had to be aware use of a gun to effect the robbery presented a grave
risk of death."]; see also People v. Mora (1995) 39 Cal.App.4th 607, 617.)
Based on the evidence, and reasonable inferences drawn therefrom, a rational jury
could conclude beyond a reasonable doubt that Chavez and Elias knew that they or their
accomplices were armed when they confronted Combs and Ellis in order to rob them.
The evidence further shows that, following the murders, neither Chavez nor Elias came to
26
the aid of the victims or interrupted their robbery to render assistance. Substantial
evidence therefore supports the jury's finding of reckless indifference.
Elias argues that the shots happened "likely in rapid succession" and, thus, Elias
could not have gained an appreciation for what was happening. Elias cites no evidence in
support of his assertion, and we are not aware of any support in the record. Moreover,
even if the killings happened quickly, such a fact does not preclude a finding of reckless
indifference based on other circumstances. Elias further argues that there is "no
evidence" of his actions during the robbery. However, as explained in more detail ante,
we find this argument unpersuasive because our standard of review mandates that we
look beyond the direct evidence to circumstantial evidence, as well as all reasonable
inferences that can be drawn from the evidence in support of the jury's finding. (Cain,
supra, 10 Cal.4th at p. 39; Kraft, supra, 23 Cal.4th at p. 1053.)
As to the second prong, a "'"major participant"'" includes one of a small group of
accomplices acting in concert. (People v. Smith, supra, 135 Cal.App.4th at p. 928;
Hodgson, supra, 111 Cal.App.4th at pp. 579-580.) Here, it was reasonable for the jury to
infer that Chavez and Elias were part of a small group that robbed and murdered Combs
and Ellis and, thus, "major participant[s]," based on the eyewitness accounts of Chavez
and his companions that night. (Hodgson, at pp. 579-580.) Chavez and Elias also
benefited more notably than others because they enjoyed the use of Ellis's truck. (See
Proby, supra, 60 Cal.App.4th at p. 931 ["the common meaning of 'major' also includes
'notable or conspicuous in effect or scope'"].) Substantial evidence supports the jury's
finding that Chavez and Elias were major participants in the robbery.
27
III
In his opening brief, Chavez contends that the trial court erred by not instructing
the jury on an additional theory of aiding and abetting liability, the natural and probable
consequences doctrine, with CALCRIM No. 403. Chavez's argument appears to be based
on a misapprehension of the prosecution's theories at trial, which did not include liability
under the natural and probable consequences doctrine. Instead, the prosecution argued
that Chavez and Ellis were liable for first degree murder either as aiders and abettors of
the deliberate and premeditated murder of Combs and Ellis or as aiders and abettors of a
robbery, during which Combs and Ellis were murdered.
Chavez did not request an instruction on the natural and probable consequences
doctrine at trial. "[I]nstructional errors, however, are reviewable on appeal to the extent
they 'affect[] [a defendant's] substantial rights.' [Citations.]" (People v. Prieto (2003) 30
Cal.4th 226, 247.) Chavez does not explain how his substantial rights could be affected
by the court's failure to instruct the jury on an additional, alternative theory of culpability.
The jury here convicted Chavez of first degree murder based on the two theories
unambiguously presented: premeditated murder and felony murder. Even if we accept
Chavez's assumption that a natural and probable theory had been advanced, instructing
the jury on an additional theory by which Chavez could be convicted of first degree
murder would not have affected those convictions. In any event, even if Chavez had not
forfeited this claim of error, any alleged error was harmless because there was no
reasonable likelihood that the jury would have reached a different result had they been
presented with an additional, alternative theory of first degree murder culpability. (See
Id. at p. 249.)
28
IV
Chavez and Elias contend that the trial court erred in instructing the jury with a
modified version of CALCRIM No. 376, over their objection, as follows: "If you
conclude that the defendant knew he possessed property and you conclude that the
property had in fact been recently stolen, you may not convict the defendant of Murder
based on those facts alone. However, if you also find that supporting evidence tends to
prove his guilt, then you may conclude that the evidence is sufficient to prove he
committed Murder.
"The supporting evidence need only be slight and need not be enough by itself to
prove guilt. You may consider how, where, and when the defendant possessed the
property, along with any other relevant circumstances tending to prove his guilt of
Murder.
"Remember that you may not convict the defendant of any crime unless you are
convinced that each fact essential to the conclusion that the defendant is guilty of that
crime has been proved beyond a reasonable doubt."
Chavez and Elias argue that it was error for the court to refer to "murder" in this
instruction because the legal principle embodied by CALCRIM No. 376 applies only to
theft-based offenses such as robbery, burglary, or receiving stolen property. (See People
v. McFarland (1962) 58 Cal.2d 748, 755.) In People v. Barker (2001) 91 Cal.App.4th
1166, this court held that it was error to include the crime of murder in the prior pattern
jury instruction based on this principle (CALJIC No. 2.15) because the same natural and
logical inferences that link the possession of stolen property with theft-based offenses do
not apply in the same way to the crime of murder. (Barker, at pp. 1175-1176; see People
29
v. Prieto, supra, 30 Cal.4th at pp. 248, 249 ["We find Barker persuasive and hold that the
trial court's application of CALJIC No. 2.15 to nontheft offenses like rape or murder was
improper."].) The Attorney General concedes that the trial court here erred.
The issue presented is thus whether the trial court's error was prejudicial. An
instructional error is prejudicial if, "'after an examination of the entire cause, including
the evidence,' [the reviewing court] is of the 'opinion' that it is reasonably probable that a
result more favorable to the appealing party would have been reached in the absence of
the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v.
Gamache (2010) 48 Cal.4th 347, 376 [holding that Watson applies to analogous
instructional error].) "The Watson standard provides that an error is harmless unless the
appellant shows it is reasonably probable a result more favorable to the appellant would
have been reached had the error not occurred." (People v. Harden (2003) 110
Cal.App.4th 848, 859.)
Here, Chavez and Elias argue that instructing the jury with the modified version of
CALCRIM No. 376 lowered the prosecution's burden of proof and provided an improper
evidentiary pinpoint instruction that was prejudicial given the evidence presented at trial.
Elias further argues that this instruction was prejudicial because his possession of stolen
property was allegedly unclear.
In view of the totality of the instructions provided, we disagree with Chavez and
Elias's contention that the instruction's reference to "slight corroborating evidence"
lowered the prosecution's burden of proof. As given, the instruction itself contained the
following admonition directly after its reference to "slight corroborating evidence":
"Remember that you may not convict the defendant of any crime unless you are
30
convinced that each fact essential to the conclusion that the defendant is guilty of that
crime has been proved beyond a reasonable doubt." Any confusion the jury may have
had was resolved promptly by that clear and express statement of the prosecution's
burden in the instruction itself. Moreover, the court fully and correctly instructed the jury
regarding the elements of the charged offenses and the prosecution's burden of proof in
other instructions. Even without the express admonition at the close of CALCRIM No.
376, those instructions alone were sufficient to ensure that the jury would not misapply
the burden of proof in this case. (People v. Barker, supra, 91 Cal.App.4th at p. 1177
["we can find no possibility such instruction [i.e., CALJIC No. 2.15] suggested that the
jury need not find all the statutory elements of murder had been proven beyond a
reasonable doubt"]; People v. Gamache, supra, 48 Cal.4th at p. 376.)
The instruction's specific reference to possession of stolen property, and the
inferences that "may" be drawn therefrom, also was not prejudicial error. Additional
instructions provided the jury with the appropriate weight to be placed on circumstantial
evidence, the scope and effect of permissible inferences from the evidence, and the
responsibility of the jury to weigh the evidence independently. We find it unlikely that
the jury ignored these additional instructions in favor of the modified version of
CALCRIM No. 376 given here.7 CALCRIM No. 376 instructs the jury that they "may"
find certain evidence sufficient to find a defendant guilty. It does not contradict the
7 Chavez argues that prejudice is shown by the prosecutor's reference to stolen property in her closing argument. However, the prosecutor's statement ("Recent possession of stolen property is a circumstance you can and should consider in finding the facts of this case") is vague and does not emphasize any of the features of CALCRIM No. 376 to which Chavez and Elias object. 31
additional instructions that place bounds on the jury's consideration of evidence.
Chavez's reliance on authority where a court gave expressly inconsistent or erroneously
mandatory instructions is therefore unpersuasive. (See LeMons v. Regents of University
of California (1978) 21 Cal.3d 869, 878; Francis v. Franklin (1985) 471 U.S. 307, 322.)
We likewise find unpersuasive Elias's argument that the court's use of CALCRIM
No. 376 was prejudicial because the evidence of his "possession" of the truck was
uncertain. In People v. Rubio (1977) 71 Cal.App.3d 757, the court held that when a
defendant's possession of stolen property was "an open question," CALJIC No. 2.15
should not be used because it "assumed that the evidence established, without dispute,
defendant's possession of stolen property." (Rubio, at p. 768.) At the time, however,
CALJIC No. 2.15 was materially different than the instruction given here. CALJIC No.
2.15 stated, "'The mere fact that a person was in conscious possession of recently stolen
property is not enough to justify his conviction of the crime charged . . . .'" (Rubio, at p.
767.) By contrast, CALCRIM No. 376 phrases the predicate findings conditionally and
emphasizes the jury's responsibility for any such findings: "If you conclude that the
defendant knew [he] possessed property and you conclude that the property had in fact
been recently [stolen] . . . ." (Italics added.) The concerns expressed in Rubio and, later,
in People v. Morris (1988) 46 Cal.3d 1, 40-41, thus have no application to the instruction
at issue here.
In light of the substantial circumstantial evidence admitted at trial tending to prove
Chavez and Elias's guilt, the forensic evidence tying Chavez and Elias to the crime scene
and the victims, and the foregoing discussion of the potential effects of the trial court's
erroneous use of CALCRIM No. 376 here, we conclude it is not reasonably probable that
32
a result more favorable to Chavez and Elias would have been reached in the absence of
this instructional error. (See Watson, supra, 46 Cal.2d at p. 836.) Although the court's
application of CALCRIM No. 376 to the crime of murder was error, as the Attorney
General concedes, the error was harmless in this case.
V
Elias contends that the prosecutor committed prejudicial misconduct during
closing arguments. The prejudicial misconduct alleged by Elias falls into four categories:
(1) arguing facts not in evidence; (2) appealing to the sympathy of the jury; (3)
expressing an improper personal belief in defendants' guilt; and (4) disparaging
defendants' expert witness. We address each category in turn.
A
"[S]tatements of facts not in evidence by the prosecuting attorney in his argument
to the jury constitute misconduct." (People v. Kirkes (1952) 39 Cal.2d 719, 724.)
"Although prosecutors have wide latitude to draw inferences from the evidence presented
at trial, mischaracterizing the evidence is misconduct." (People v. Hill (1998) 17 Cal.4th
800, 823.)
The first series of alleged misstatements identified by Elias reflect the prosecutor's
argument that Ellis was shot after Combs, that Ellis tried to escape, and that Ellis fought
with multiple perpetrators and was restrained. Elias points out correctly that there was no
direct evidence or expert testimony regarding the sequence of shots or signs of struggle.
The scope of permissible argument, however, is broader. "'It is settled that a prosecutor
is given wide latitude during argument. The argument may be vigorous as long as it
amounts to fair comment on the evidence, which can include reasonable inferences, or
33
deductions to be drawn therefrom. [Citations.]'" (People v. Wharton (1991) 53 Cal.3d
522, 567.) The prosecutor's comments in this instance were reasonable inferences from
the evidence admitted. Ellis had several abrasions on his neck and leg, one of which was
fresh. His belt was undone, and his clothes were uncharacteristically disheveled. From
these facts, the prosecutor could reasonably infer that Ellis had been involved in a
struggle, tried to flee, and was restrained. Finally, eyewitnesses testified that up to four
people were with Chavez that night, so it is reasonable to infer that they were also
involved in the robbery and murder. Though Elias argues that other inferences are also
possible, the prosecution may argue its own interpretation of the evidence so long as it is
reasonable. (People v. Cunningham (2001) 25 Cal.4th 926, 1026.)
The second series of alleged misstatements identified by Elias reflect the
prosecutor's argument that Elias planned the robbery and that Elias was armed. Again,
we find no misconduct. The evidence showed that Chavez and his group were at the
Palms for some time prior to the robbery. While there was no direct evidence of a plan,
the presence of Chavez and his group at the bonfires prior to the robbery, the fact that
their group was armed, and the robbery itself give rise to the reasonable inference that the
robbery was planned rather than occurring spontaneously. While Elias contends that the
prosecution claimed he was personally armed, the prosecutor's argument was that "they
took a loaded gun with them" to the Palms area. She did not specifically identify Elias.
Since Combs and Ellis were shot, and all reasonable inferences point to a group
consisting of at least Chavez and Elias as the shooter or shooters, the prosecutor's
statement was a proper comment on the record. (People v. Wharton, supra, 53 Cal.3d at
p. 567.)
34
We can discern no misconduct in the alleged misstatements identified by Elias. In
light of our conclusion, we need not consider whether Elias forfeited his claims of error
on appeal by failing to object or whether Elias's counsel was ineffective by failing to
make such objection.
B
In her closing argument, the prosecutor described Combs and Ellis as "young men
who had come to San Diego to serve their country." She also referred to Ellis's college
pamphlet, arguing that "that's the kind of guy he [was], trying to better himself, serve his
country -- [¶] . . . [¶] -- go to college." The trial court overruled defense counsel's
objection to the latter comment. No objection was made to the former. Elias contends on
appeal that the prosecutor's statement that Ellis and Combs "serve[d] their country" when
they were killed was an improper appeal to the jury's sympathy. (See People v. Kipp
(2001) 26 Cal.4th 1100, 1130.) In Kipp, the prosecutor argued to the jury, during the
guilt phase of a capital trial, that the jury should "'think for a moment about what
[murder] means. A living, breathing human being had all of that taken away.'" (Id. at p.
1129.) The court held that "[t]he prosecutor's argument, inviting the jury to reflect on all
that the victim had lost through her death, was an appeal for sympathy for the victim, and
therefore it was improper . . . ." (Id. at p. 1130.)
Here, the prosecutor's statement that Combs and Ellis "serve[d] their country" does
not invite such an emotional response from the jury. A prosecutor is not "required to
discuss his view of the case in clinical or detached detail." (People v. Panah (2005) 35
Cal.4th 395, 463.) Such a mild comment on the victims' military service, which was
35
relevant to a number of issues in the case, does not improperly appeal to the jury's
sympathy and was not misconduct.
C
The prosecutor also argued, in closing, that "[n]obody was there to witness it. The
witnesses are dead. But just as my heart is beating in my chest, those two men stopped
the heartbeats of Keith and Cliff." Defense counsel did not object to the prosecutor's
statement. Elias argues on appeal that the prosecutor expressed an improper personal
belief in Chavez's and Elias's guilt.
"A prosecutor may not express a personal opinion or belief in the guilt of the
accused when there is a substantial danger that the jury will view the comments as based
on information other than evidence adduced at trial." (People v. Mincey (1992) 2 Cal.4th
408, 447.) "The general rule is that improper vouching for the strength of the
prosecution's case '"involves an attempt to bolster a witness by reference to facts outside
the record."' [Citation.] Thus, it is misconduct for prosecutors to vouch for the strength
of their cases by invoking their personal prestige, reputation, or depth of experience, or
the prestige or reputation of their office, in support of it. [Citations.] Specifically, a
prosecutor's reference to his or her own experience, comparing a defendant's case
negatively to others the prosecutor knows about or has tried, is improper. [Citation.] Nor
may prosecutors offer their personal opinions when they are based solely on their
experience or on other facts outside the record. [Citations.]" (People v. Huggins (2006)
38 Cal.4th 175, 206-207.)
Elias argues that the context of the prosecutor's statement, made after the
prosecutor presented her theory of how the crime occurred, created a substantial risk that
36
the jury interpreted the statement as being based on facts outside the record. We
disagree. While the prosecutor did vouch for her case, neither the content nor the context
of the prosecutor's statement indicated to the jury that her belief in Chavez's and Elias's
guilt was based on anything other than the facts admitted in evidence. The prosecutor
repeatedly referenced the facts and evidence in the record during her closing argument
and argued the prosecution's view of the reasonable inferences to be drawn therefrom.
We discern no error or misconduct under these circumstances. Again, in light of our
conclusion, we need not address issues of forfeiture or ineffective assistance of counsel.
D
The prosecutor addressed the defense expert witness, Lisa Dimeo, in closing
argument as follows: "And I have to comment on the expert. How can I not? You can
hire somebody and have them come in here and say anything." Defense counsel objected
but was overruled. Elias contends that the prosecutor's comments improperly implied
that defense counsel or the expert improperly fabricated evidence.
"[C]ounsel is free to remind the jurors that a paid witness may accordingly be
biased and is also allowed to argue, from the evidence, that a witness's testimony is
unbelievable, unsound, or even a patent 'lie.' [Citations.]" (People v. Arias (1996) 13
Cal.4th 92, 162.) However, "[i]t is generally improper for the prosecutor to accuse
defense counsel of fabricating a defense [citations], or to imply that counsel is free to
deceive the jury [citation]. Such attacks on counsel's credibility risk focusing the jury's
attention on irrelevant matters and diverting the prosecution from its proper role of
commenting on the evidence and drawing reasonable inferences therefrom. [Citations.]"
(People v. Bemore (2000) 22 Cal.4th 809, 846.)
37
Although we are reluctant to definitively declare error, given the mild and fleeting
nature of the prosecutor's remark, it is possible that a juror could reasonably interpret the
statement "[y]ou can hire somebody and have them come in here and say anything" as an
implicit attack on the credibility of counsel, who hired the expert, rather than a critique
based on the evidence. If it was error, however, it was harmless given the nature of the
remark, the context in the prosecution's closing statement, the relative unimportance of
the defense expert's testimony (see fn. 3, ante), and the substantial evidence of Chavez
and Elias's guilt introduced at trial. It is not "reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the error."
(See Watson, supra, 46 Cal.2d at p. 836.)
VI
As we have noted, the trial court sentenced Chavez and Elias each to two
consecutive terms of life imprisonment, without possibility of parole, plus an additional
consecutive year. The trial court initially sentenced Chavez and Elias to life without
possibility of parole because it erroneously believed it had no other sentencing options.
When advised by the prosecutor that it had discretion to sentence defendants to terms of
25 to life under section 190.5, subdivision (b), the trial court conducted a further hearing
and provided defendants an opportunity to argue and present evidence of mitigating
circumstances. At the conclusion of the second sentencing hearing, the court declined to
modify defendants' sentences.8
8 In declining to modify its imposition of consecutive life terms without the possibility of parole, the trial court stated: "This is not an easy one, folks. Judges frequently think we need more discretion in the law. Then sometimes having discretion makes this job a lot more difficult. 38
Relying on Miller and Gutierrez, Chavez and Elias argue that because they were
both juveniles at the time of the murders, the trial court erred in imposing life sentences
without the possibility of parole and their cases should be reversed and remanded for
resentencing. We agree that Gutierrez requires defendants' sentences be reversed and
"I said at the [initial] sentencing I'd be hard-pressed to come up with a more callous murder than what these two gentlemen engaged in. To take the life of two young navy men at the prime of their life, fighting with distinction for their country, and to annihilate them execution-style, right through the head, over a truck is about as low as it gets, folks. And I know the family members back there love these two gentlemen, but on the date in question, they couldn't have treated a dog worse than they treated these two young men, and that's a fact. I mean, I have seen hundreds of murders, and this was as callous as you get. "These defendants had juvenile offenses. This was a classic gang record. Juvenile offenses, repeated juvenile violations prior to this offense. They get away with this crime when it occurs. Do they change their lives? Do they get out and decide, 'Okay, now I'm going to make something out of my life'? Both of these defendants had adult felony offenses, Mr. Chavez for robbery, Mr. Elias for attempted robbery, as well as other offenses, and parole violations. So [the prosecutor] is correct. These are not two gentlemen who had one terrible night and then led a crime-free life after that. "The flip side is, these two gentlemen have family members and community support that is rare for this court to see, and those of you that have been in my court a lot know that with young people, I tend to try to think about second chances. So I am telling you, I have been wrestling with this one. I have been thinking about it a lot. "I just think at the end of the day -- I could have lived with the juvenile record if after this execution-style double homicide these men had been crime-free, but given the violent crimes after this double homicide, it just doesn't seem right to me. I just -- I can't justify it. And I know there has been a hiatus recently in criminality, but I just keep thinking about these two victims and that they were killed young, a young vibrant time in their life, when they had so much of their life to look forward to. And I keep thinking about the one victim's wife. He was a newlywed and his life -- his wife's life is over. I mean, we all heard her speak. She'll never be the same mentally, physically. That murder destroyed her existence. And the other victim's family, the mother and father adored that young boy, and they'll never recover from it, their only son. "So I think at the end of the day, if you look at this supplemental probation report, [the prosecutor] is right. You just can't come up with anything in mitigation, and every single circumstance aggravates the situation. So the court stands by my prior ruling and will decline to modify the sentence." 39
that the trial court must resentence them considering the views expressed in Miller and
Gutierrez.
A. Miller
In Miller, the United States Supreme Court considered mandatory life sentences
without the possibility of parole imposed on two 14-year-old boys who were responsible
for separate murders in separate states. One of the boys, Kuntrell Jackson, was an aider
and abettor in the 1999 robbery of a video store in Arkansas during which one of
Jackson's two accomplices shot and killed the sales clerk at the video store. After his
case was transferred to adult court, Jackson was convicted of felony murder and
aggravated robbery and, under Arkansas law, the trial court sentenced him to a
mandatory life sentence without the possibility of parole. His conviction and sentence
were affirmed on appeal. Jackson then brought a state habeas petition in which he argued
that, in light of his age at the time of the crimes, the mandatory life sentence without
possibility of parole was cruel and unusual punishment. The state trial court dismissed
Jackson's petition, and its dismissal was affirmed by the Arkansas Supreme Court.
In 2003, the other 14-year-old boy, Evan Miller, went to a neighbor's house in
Alabama with a friend and spent the night smoking marijuana and drinking with the
neighbor. Earlier in the evening, the neighbor had made a drug deal with Miller's mother.
When the neighbor passed out, Miller attempted to steal the neighbor's wallet; during the
attempted theft, the neighbor woke up and started choking Miller. Miller's friend hit the
neighbor with baseball bat and, when the neighbor released Miller, Miller picked up the
bat and beat the neighbor unconscious. Miller and his friend then set fire to the
neighbor's trailer to cover up their crime. The neighbor died from his injuries and smoke
40
inhalation. Miller's case was also transferred to adult court, and he was convicted of
murder in the course of arson, which, in Alabama, carries a mandatory sentence of life
without the possibility of parole. On appeal, the Alabama Court of Criminal Appeals
rejected Miller's argument that, considering his age at the time of the crime, the
mandatory life sentence without possibility of parole was cruel and unusual.
The Supreme Court granted certiorari from the judgment dismissing Jackson's
state habeas proceeding and from the judgment affirming Miller's conviction and
reversed both cases for resentencing. The court found that mandatory life sentences for
juveniles offended two strands of the court's sentencing jurisprudence: a group of cases
which found that the severe punishments of capital punishment and mandatory life
without the possibility of parole in nonhomicide cases, may not be imposed on certain
classes of criminals, such as juveniles, perpetrators of nonhomicide offenses, or the
mentally retarded (see, e.g., Graham v. Florida (2010) 560 U.S. 48, 67-75; Kennedy v.
Louisiana (2008) 554 U.S. 407; Atkins v. Virginia (2002) 536 U.S. 304), because those
punishments are disproportionate to the culpability of members of those classes; and a
second related line of cases which require that before capital punishment or its equivalent
may be imposed, sentencing authorities must consider the particular characteristics of the
defendant and the details of the offense. (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at
pp. 2463-2464].)
With respect to the punishment of juveniles, the court stated: "'[Y]outh is more
than a chronological fact.' [Citation.] It is a time of immaturity, irresponsibility,
'impetuousness[,] and recklessness.' [Citation.] It is a moment and 'condition of life
when a person may be most susceptible to influence and to psychological damage.'
41
[Citation.] And its 'signature qualities' are all 'transient.'" (Miller, supra, 567 U.S. at p.
___ [132 S.Ct. at p. 2467].) The court found its reasoning in Eddings v. Oklahoma
(1982) 455 U.S. 104 "especially on point." (Miller, at p. ___ [132 S.Ct. at p. 2467].)
"There, a 16-year-old shot a police officer point-blank and killed him. We invalidated his
death sentence because the judge did not consider evidence of his neglectful and violent
family background (including his mother's drug abuse and his father's physical abuse)
and his emotional disturbance. We found that evidence 'particularly relevant'--more so
than it would have been in the case of an adult offender. [Citation.] We held: '[J]ust as
the chronological age of a minor is itself a relevant mitigating factor of great weight, so
must the background and mental and emotional development of a youthful defendant be
duly considered' in assessing his culpability. [Citation.]" (Ibid.)
Thus, the court found that mandatory life sentences without the possibility of
parole were invalid: "Such mandatory penalties, by their nature, preclude a sentencer
from taking account of an offender's age and the wealth of characteristics and
circumstances attendant to it. Under these schemes, every juvenile will receive the same
sentence as every other--the 17-year-old and the 14-year-old, the shooter and the
accomplice, the child from a stable household and the child from a chaotic and abusive
one. And still worse, each juvenile (including these two 14-year-olds) will receive the
same sentence as the vast majority of adults committing similar homicide offenses."
(Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at pp. 2467-2468].) In particular, the court
found the mandatory character of the life sentences was disproportionate and hence
invalid because it deprived the sentencing judge of the opportunity to consider: (1) the
juvenile's age and its inherent impact on the juvenile's culpability; (2) the juvenile's
42
familial and social circumstances; (3) the circumstances of the homicide offense,
including the extent of the juvenile's participation in the offense; (4) the impact of the
juvenile's youthfulness on his ability to deal with law enforcement officers and
prosecutors as well as effectively assist in his own defense; and (5) "the possibility of
rehabilitation even when the circumstances most suggest it." (Miller, at p. ___ [132 S.Ct.
at p. 2468].)
In light of its longstanding views about the diminished culpability of youthful
offenders and their heightened capacity for change, the court stated: "[W]e think
appropriate occasions for sentencing juveniles to the harshest possible penalty will be
uncommon. That is especially so because of the great difficulty [we have noted] 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." (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2469], fn. omitted.)
B. Gutierrez
In Gutierrez, our Supreme Court considered two juvenile defendants who had
been sentenced to life terms without the possibility of parole. In the first case, Andrew
Lawrence Moffett participated in an armed robbery. When Moffett and his codefendant
were fleeing the scene of the robbery, his codefendant shot and killed a police officer.
Moffett was 17 years old at the time of the killing, and he was found guilty of felony
murder and sentenced to life without the possibility of parole. In the second case, Luis
43
Angel Gutierrez, who was 17, was living with his aunt and uncle. Early one morning,
after his uncle left for work, Gutierrez went into his aunt's bedroom, where, in the course
of attempting to rape her, he stabbed her to death. Gutierrez was convicted of murder
with a special circumstance finding the murder was committed during a rape or attempted
rape. Gutierrez was also sentenced to life without the possibility of parole.
Like Chavez and Elias, Moffett and Gutierrez were sentenced before Miller was
decided and under the provisions of section 190.5. Section 190.5 gives a trial court
discretion to sentence a defendant who is convicted of first degree murder with special
circumstances and was between the ages of 16 and 18 at the time of the subject crime to
life without the possibility parole or a term of 25 years to life. At the time Moffett and
Gutierrez were sentenced, section 190.5 had been repeatedly interpreted as imposing a
presumptive sentence of life without the possibility of parole, subject to a determination
by the trial court that there was good reason to impose the less severe sentence of 25
years to life. (See People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1142 (Guinn).)
In Gutierrez, the Supreme Court found that the presumption established in Guinn
was inconsistent with the principles set forth in Miller. "'Treating [life without parole] as
the default sentence takes the premise in Miller that such sentences should be rarities and
turns that premise on its head, instead placing the burden on a youthful defendant to
affirmatively demonstrate that he or she deserves an opportunity for parole." (See
Gutierrez, supra, 58 Cal.4th at p. 1379.) Because section 190.5 may be construed as
creating no presumptive sentence, and such a construction is more consistent with Miller,
the court overruled Guinn and the other cases that had adopted the presumption and held
"that section 190.5(b) confers discretion on the sentencing court to impose either life
44
without parole or a term of 25 years to life on a 16- or 17-year-old juvenile convicted of
special circumstances murder, with no presumption in favor of life without parole."
(Gutierrez, supra, 58 Cal.4th at p. 1387.)
The court further held that in considering whether to impose a life sentence
without possibility of parole, a sentencing court must consider the five factors
enumerated in Miller: (1) the inherent impact of the juvenile's age on his culpability; (2)
the juvenile's home and family environment; (3) the circumstances of the homicide
offense; (4) the juvenile's ability to deal with law enforcement officers and prosecutors as
well as effectively assist in his own defense; and (5) the possibility of rehabilitation.
(Gutierrez, supra, 58 Cal.4th at pp. 1389-1390.)
In considering disposition of both cases, the court in Gutierrez presumed that both
sentencing courts had followed the law as interpreted by Guinn and its progeny and that
both courts had therefore erroneously treated a sentence of life without possibility of
parole as required by section 190.5, unless good reason to impose the less severe option
of 25 years to life existed. (Gutierrez, supra, 58 Cal.4th at p. 1390.) The court further
found that this presumed error required a remand for resentencing because: "Although
the trial courts in these cases understood that they had some discretion in sentencing, the
records do not clearly indicate that they would have imposed the same sentence had they
been aware of the full scope of their discretion. Because the trial courts operated under a
governing presumption in favor of life without parole, we cannot say with confidence
what sentence they would have imposed absent the presumption." (Gutierrez, at p.
1391.) In remanding both cases for resentencing, the court, reiterating Miller, stated:
"The question is whether each can be deemed, at the time of sentencing, to be irreparably
45
corrupt, beyond redemption, and thus unfit ever to reenter society, notwithstanding the
'diminished culpability and greater prospects for reform' that ordinarily distinguish
juveniles from adults. [Citation.]" (Ibid.)
C. Analysis
Chavez and Elias were both sentenced before either Miller or Gutierrez were
decided. Thus, the trial court did not conduct the analysis required by those cases and
imposed sentence at a time Guinn compelled a presumption in favor of a life sentence
without the possibility of parole.
Although the record may support the trial court's decision to impose life sentences
without the possibility of parole, because at the time the sentences were imposed the trial
court did not have the benefit of either Miller and Gutierrez and was bound by the invalid
presumption that the life sentences without the possibility of parole should be imposed,9
we consider the narrow question of whether the guidance provided by Miller and
Gutierrez would have altered the trial court's sentencing choices.
There are circumstances in the record that suggest resentencing, even with the
guidance provided by Miller and Gutierrez, will not lead the trial court to impose a more
lenient sentence on either defendant: the trial court found that in first isolating Ellis and
9 The record is silent with respect to whether the trial court applied the Guinn presumption. As we have noted, under similar circumstances the court in Gutierrez applied the presumption that, unless a record otherwise indicates, a trial court knew and followed governing law. (See Gutierrez, supra, 58 Cal.4th at p. 1390, citing People v. Thomas (2011) 52 Cal.4th 336. 361.) The Attorney General argues that, given the fact that the trial court was initially unaware of the express discretion provided by section 190.5, we should interpret its silence with respect to the presumption as an indication that it was also unaware of the presumption provided by Guinn and the cases that followed Guinn. We decline to do so. We see no end to the mischief that would arise were we to interpret a completely silent record as indicating that a trial did not follow the law. 46
Combs, and then, acting together, executing them, defendants were as callous a pair of
murderers as she had seen in her lengthy career; although given the opportunity to present
evidence in mitigation in the trial court, neither defendant provided information that
might limit their culpability or show how commission of these crimes was related to their
relative youthfulness and, on appeal, neither suggest that on remand they would be able
to provide such mitigating evidence; and finally, the trial court, in apparently determining
the murders were less the product of youth than of defendants' malevolent characters,
placed a great deal of emphasis on the fact that in the years immediately following the
murders, Chavez and Elias continued to lead a life of criminality. These circumstances
are independent of the presumption overruled in Gutierrez and suggest that, on remand,
the trial court, even with the benefit of Gutierrez, may impose the harshest possible
sentence on defendants.
However, as the court's holding in Gutierrez makes plain, before we can affirm
these severest of possible sentences for a juvenile crime, we have confidence that the trial
court, fully informed of its discretion, would have imposed those sentences. (See
Gutierrez, supra, 58 Cal.4th at p. 1391.) This leads us to the ultimate question posed by
the courts in both Miller and Gutierrez, which the trial court here must answer: did these
crimes reflect transient immaturity or irreparable corruption? (Miller, supra, 567 U.S. at
p. ___ [132 S.Ct. at p. 2469]; Gutierrez, at p. 1378.) As we read Miller and Gutierrez,
the enumerated factors are not ends in themselves but rather are, when considered
together in a reasoned manner, the useful and necessary means by which a sentencing
court must determine whether transient immaturity requires some degree of leniency or
irreparable corruption must be punished as severely as possible. (See Miller, at p. ___
47
[132 S.Ct. at p. 2469]; Gutierrez, at p. 1378.) There is nothing in the record which
indicates that the trial court itself directly considered this ultimate question. Because the
record is silent on this ultimate issue, we cannot say we are convinced as to how the trial
court would exercise its discretion and, thus, we are compelled to remand for
resentencing.
VII
Chavez and Elias argue, and the Attorney General agrees, that the parole
revocation fine imposed by the court under section 1202.45 should be stricken because
their sentences preclude the possibility of parole. (See People v. Oganesyan (1999) 70
Cal.App.4th 1178, 1183 ["When there is no parole eligibility, the fine is clearly not
applicable."].) We agree as well and, on remand, the trial court is directed to modify the
judgment accordingly.
DISPOSITION
We reverse imposition of the life sentences without possibility of parole and the
parole revocation fines imposed pursuant to Penal Code section 1202.45 and remand for
resentencing consistent with the views we have expressed. In all other respects, the
judgments are affirmed.
BENKE, Acting P. J. WE CONCUR:
MCDONALD, J.
AARON, J.
48
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendants' first-degree murder convictions and special circumstance findings, holding that sufficient evidence supported the conclusion that they participated in the robbery and killings, but remanded for resentencing due to intervening changes in law regarding juvenile life-without-parole sentences.
Issues
Whether there was sufficient evidence to support the defendants' convictions for first-degree murder and the associated special circumstance findings.
Whether the defendants' sentences of life imprisonment without the possibility of parole violated the Eighth Amendment in light of Miller v. Alabama and People v. Gutierrez.
Whether the trial court erred in imposing parole revocation fines.
Disposition. Affirmed in part and reversed in part.
Quotations verified verbatim against the opinion
“The witnesses' identification of Chavez as being present at the bonfires shortly before the murders, his possession of the truck following the murders, and his DNA in the pants pocket of one of the victims, make a strong case Chavez participated in the truck robbery and the killings.”
“These circumstances support the conclusion Elias was Chavez's companion at the bonfires and an active participant in the robbery and killings.”
“we reverse the life sentences without possibility of parole and remand for resentencing in light of Miller and Gutierrez.”