P. v. Siackasorn

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Filed 5/17/12 P. v. Siackasorn CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JIMMY SIACKASORN,
Defendant and Appellant.
C065399
(Super. Ct. No. 07F11789)
A jury convicted defendant Jimmy Siackasorn of first degree
murder of a police officer. (Pen. Code, § 187, subd. (a).)1 The
jury found true allegations that defendant intentionally and
knowingly killed the officer while the officer was performing
his duties, and that defendant intentionally and personally
discharged a firearm causing the death. (§ 190.2, subd. (a)(7),
former § 12022.53, subd. (d).) The jury found not true an
allegation that the murder was committed for the benefit of a
criminal street gang. (§ 186.22, subd. (b)(1).)
1 Undesignated statutory references are to the Penal Code.

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Defendant committed the offense about five weeks shy of his
17th birthday. Sentenced to a prison term of life without the
possibility of parole (LWOP), plus a consecutive sentence of 25
years to life for the firearm finding, defendant appeals. He
raises evidentiary admissibility and sufficiency issues—and an
instructional contention—regarding the first degree murder
elements of premeditation and deliberation. He also claims his
sentence is unconstitutionally cruel and unusual, and asks that
we review the sealed record of his Pitchess motion concerning
any discoverable information in the slain officer‘s personnel
file.2 We shall affirm the judgment.
FACTUAL BACKGROUND
Defendant concedes that he shot and killed Deputy Sheriff
Vu Nguyen on the afternoon of December 19, 2007. Aside from the
constitutionality of defendant‘s sentence, the basic issues on
appeal involve the evidence of (1) defendant‘s premeditation and
deliberation, and (2) his knowledge that Nguyen was a police
officer.
On that December afternoon, Detective Nguyen and his
partner in the Sacramento County Sheriff‘s Gang Suppression
Unit, Detective Ed Yee, were ascertaining gang information while
traveling in an unmarked, but well-known gang unit car (silver
2 Pitchess v. Superior Court (1974) 11 Cal.3d 531. We have
reviewed that sealed record and find the trial court did not
abuse its discretion in concluding there was nothing
discoverable therein. (People v. Cruz (2008) 44 Cal.4th 636,
670.)

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Nissan Maxima), when they noticed a young Asian male in front of
Lucky Chanthalangsy‘s (Lucky) house, a known hangout for the
Tiny Raskal Gang (TRG). The officers decided to contact the
person.3
When the officers and the person spotted one another, the
person started to walk away from them, and eventually sprinted
away after Detective Yee drove into an oncoming traffic lane in
pursuit. Detective Nguyen jumped out of the vehicle and chased
the person on foot near Lucky‘s house, while Detective Yee
continued the pursuit in the car.
Detective Yee saw Detective Nguyen jump a backyard fence
and then lost contact with him. During this pursuit, Yee heard
faint sounds, which he later concluded had been gunshots.
After not receiving a response from Detective Nguyen,
Detective Yee got out of the car and climbed over some fences
and onto a chicken coop, where he found Nguyen lying on his
back. Nguyen had been shot three times—in the neck, in the
abdomen, and in the lower back. All three injuries were
potentially fatal. Nguyen‘s finger was on the trigger of his
gun, but the gun had not been fired.
Lucky‘s father witnessed the foot chase and the shooting.
He had told law enforcement that the victim did not have time to
get his gun before being shot, but at trial he stated that it
3 The defense did not dispute that this person was defendant.

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looked like the victim was reaching for his gun when a shot
sounded and the victim fell down.
Defendant ran up to a couple after the shooting and asked
them, without success, if they would give him a ride to the
light rail station because he ―just shot a cop.‖
Evidence involving defendant‘s state of mind and knowledge
also included the following. It was commonly known in the area
in which defendant was spotted that gang-unit police personnel
drove silver or gray Nissan Maximas; this personnel was commonly
referred to by gang members as ―task force‖ or simply ―task‖;
and defendant admitted that he was a TRG member. It was clear
to Detective Yee that the person he pursued on the afternoon of
the shooting had recognized Yee‘s car as a law enforcement
vehicle. Shortly after the shooting, defendant told his cousin
(a TRG member) that he had ―bust[ed] on task,‖ meaning he had
shot a cop; defendant told another TRG member that he had shot a
cop. On the day of the shooting, defendant had an outstanding
warrant. There was evidence that Detective Nguyen, at the time
of the shooting, had his police badge on a chain around his
neck.
Additional evidence involving defendant‘s state of mind and
knowledge included (1) incriminating statements that defendant
made to a police photographer following a post-shooting police
interview; (2) defendant‘s prior misconduct and accompanying
threats to probation officers and to custodial staff while in
juvenile custody; and (3) expert and lay opinion testimony on

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the TRG mindset concerning police officers. Since defendant
claims the trial court erroneously admitted these three items of
evidence, we will discuss them in detail when we discuss these
issues.
DISCUSSION
I. The Trial Court Properly Admitted Certain Statements
That Defendant Made to a Police Photographer
A. Background
On December 20, 2007, at around 2:10 a.m., after being
arrested around midnight and left alone shackled to an interview
table at the police station for about 50 minutes, defendant was
interviewed by Detective Clark4 and Detective Stanley Swisher.
The interview was recorded and transcribed.
Defendant was read and confirmed he understood his Miranda5
rights, and expressed his willingness to talk.
Detectives Clark and Swisher continued to interrogate
defendant until 3:53 a.m. Toward the end of that phase of the
interrogation, defendant stated twice within a short period of
time that he did not want to talk any more.
At this point, Detective Swisher said ―okay‖ and the
detectives left the interview room, but just two minutes later,
4 Detective Clark did not testify at trial and his first name
does not appear in the record.
5 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

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they returned and resumed the questioning. Shortly thereafter,
defendant confessed.
Detectives Clark and Swisher concluded the interrogation at
about 4:10 a.m., leaving the room after telling defendant that
someone would be coming in to take pictures of him.
About three minutes later, a police photographer, Deputy
Sam Bates, entered the interview room with Detective John Linke
(who had not participated in defendant‘s questioning, and who
was not involved in the photographing or in eliciting any
statements from defendant during the photographing).
As the police photographer asked defendant to position
himself for a photograph, defendant blurted out, ―That cop
deserved it though.‖ The photographer responded, ―Excuse me?‖
and defendant repeated his statement. The photographer told
defendant that he would be best served to say nothing.
Defendant replied, ―What are you going to beat my ass or
something?‖ After more positioning and photographs, defendant
added, ―Lucky I didn‘t see you on the street. Would have shot
your ass, too.‖
Not long thereafter, as the photographing proceeded,
defendant stated, ―Oh, that‘s the same cop that beat up the
homie before anyways so he—he deserve what he got.‖ Defendant

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also boasted of the violent acts he would commit while
incarcerated.6
After these statements, Detective Swisher, one of the two
detectives who had previously questioned defendant, returned to
the interview room and again questioned defendant. The trial
court also excluded these questions and answers.
B. Analysis
Defendant contends that his statements to the police
photographer that were admitted into evidence were both
involuntary and the tainted product of his coerced confession,
and thus should have been suppressed. We disagree.
Because defendant‘s statements to the photographer were
admitted for all purposes in the prosecution‘s case-in-chief,
the statements must have been voluntarily made and not obtained
in violation of Miranda. (See Harris v. New York (1971)
401 U.S. 222, 223-225 [28 L.Ed.2d 1, 3-5].)
We determine the legal issue of the voluntariness of a
statement or a Miranda violation independently of the trial
court, based on all the supported surrounding circumstances
found by the trial court. (People v. Davis (2009) 46 Cal.4th
539, 586; see Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226
[36 L.Ed.2d 854, 862].) At trial, the prosecution is required
6 The photographer also performed a gunshot residue test on
defendant, which led defendant to make some more incriminating
remarks. These remarks were intertwined with accompanying
questions from the photographer, causing the trial court to
suppress these remarks from defendant.

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to prove voluntariness and compliance with Miranda by a
preponderance of the evidence. (People v. Markham (1989)
49 Cal.3d 63, 67, fn. 3, 71; see Lego v. Twomey (1972) 404 U.S.
477, 489 [30 L.Ed.2d 618, 627].) We will start with the alleged
Miranda violation.
1. Miranda Violation.
The trial court correctly concluded that Detectives Clark
and Swisher violated defendant‘s Miranda rights after resuming
their questioning of him shortly after his second statement that
he did not want to talk anymore; and the court correctly
suppressed defendant‘s statements to the officers after this
violation, including his confession.
However, a statement obtained after a Miranda violation can
be admitted if it can be separated from the circumstances
surrounding the Miranda violation—i.e., if the Miranda taint was
sufficiently attenuated when the subsequent statement was made.
(Oregon v. Elstad (1985) 470 U.S. 298, 318 [84 L.Ed.2d 222, 237-
238]; Clewis v. Texas (1967) 386 U.S. 707, 710 [18 L.Ed.2d 423,
427].) That is the case here regarding defendant‘s statements
to the police photographer that the trial court admitted into
evidence.
The photographer appeared only after Detectives Clark and
Swisher had ended their initial interrogation of defendant.
With regard to the statements admitted into evidence, the
photographer simply directed defendant how to pose for the
photographs; the photographer did not initiate interrogation or

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prompt defendant to make the statements. In fact, the
photographer admonished defendant to say nothing. There was a
detective on the scene—Detective Linke—but Linke had not
questioned defendant, and he was not involved in the
photographing. In short, photographing defendant was an act
independent of interrogating him.
We conclude the trial court did not violate Miranda
regarding the statements that defendant made to the police
photographer, which the trial court admitted into evidence.
2. Voluntariness.
We also conclude, in considering ―the totality of the
circumstances,‖ that the statements that defendant made to the
police photographer that were admitted into evidence were
voluntary. (Arizona v. Fulminante (1991) 499 U.S. 279, 285-286
[113 L.Ed.2d 302, 315-316].)
As the Attorney General notes, there is nothing in the
record to indicate that defendant‘s admitted statements to the
police photographer were anything but voluntary. Without any
prompting on the photographer‘s part, defendant began jabbering
at him about the case. In fact, defendant continued to
volunteer statements even after the photographer warned him to
say nothing. The session with the photographer cannot be
considered a continuation of the Miranda-violative interrogation
by Detectives Clark and Swisher. As explained above,
photographing defendant was an act independent of interrogating
him.

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II. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence
of Juvenile Custody Misconduct and Threats
Defendant contends the trial court abused its discretion
under Evidence Code sections 1101 and 352 in admitting into
evidence six instances of defendant‘s misconduct and threats to
staff while in previous juvenile custody. We disagree.
Evidence Code section 1101 prohibits the introduction of
character evidence to prove conduct on a specific occasion, but
permits evidence of prior bad acts if relevant to show motive,
intent, knowledge, and the like, regarding the present crime.
Under Evidence Code section 352, a trial court weighs the
probative value of such evidence against its prejudicial effect.
We review a trial court‘s decision to admit such evidence under
the abuse of discretion standard. (People v. Jennings (2000)
81 Cal.App.4th 1301, 1314.)
Here, the trial court admitted evidence of six incidents
when defendant was in juvenile custody in which he physically
lashed out or violated a rule, and when disciplined by custodial
officers or probation officers, threatened to shoot or beat
them. In some of these incidents, defendant threatened to take
action ―on the outs,‖ i.e., when he was on the outside. In one
incident, defendant had to be pepper sprayed after refusing to
stop punching a wall. In another, he told a probation officer
who had arrested him that the officer was lucky defendant did
not know he was coming—―we would have had to . . . shoot it
out.‖

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As the trial court instructed the jury, this evidence could
be considered only for the limited purpose of determining
defendant‘s ―mental state, motive, opportunity, intent,
knowledge, absence of mistake, or state of mind,‖ regarding the
present offense.
As noted, the critical issues in this case concerned
defendant‘s mental state and knowledge at the time of the
shooting. The challenged evidence was relevant on those issues.
Defendant disagrees. He argues that these threats were
directed against juvenile facility custodial officers and
probation officers, not police officers, and were never carried
out; they showed only his propensity for violence and criminal
disposition, evidentiary areas prohibited under Evidence Code
sections 1101 and 352.
We find parallels between the present case and People v.
Pertsoni (1985) 172 Cal.App.3d 369 (Pertsoni), in which the
trial court properly admitted certain evidence under Evidence
Code sections 1101 and 352. In Pertsoni, the defendant was
charged with murdering a Yugoslavian whom the defendant claimed
worked for the Yugoslav secret police. The trial court admitted
evidence that four years prior to the murder the defendant had
participated in a demonstration against the Yugoslav Consulate
in which he fired four shots at a man he believed was the
Yugoslav Ambassador. (Pertsoni, at p. 372.)
The appellate court in Pertsoni noted that the defendant‘s
state of mind was the only issue in the case. (Pertsoni, supra,

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172 Cal.App.3d at p. 375.) The prosecution theory was that the
killing was premeditated, whereas the defendant claimed self-
defense. (Id. at pp. 373-374.) The evidence of the consulate
incident, said Pertsoni, showed ―the lengths to which [the
defendant‘s] passionate hatred of anyone connected with the
Yugoslav government would take him‖; this evidence ―tended
logically to show that [the defendant‘s] motive in killing [the
present victim] was to eliminate an agent of the Yugoslav
government.‖ (Id. at pp. 374, 375.)
Similarly, here, defendant‘s state of mind was the only
issue in the case. The prosecution claimed premeditation while
defendant countered with self-defense. Although the challenged
incidents did not involve police officers per se, the incidents
involved probation officers and juvenile facility custodial
officers—in other words, law enforcement-related personnel, and
reflected defendant‘s state of mind toward such personnel when
they exercised authority over him.
We conclude the trial court did not abuse its discretion in
admitting the evidence of the six incidents under Evidence Code
sections 1101 and 352.
Also, the trial court did not abuse its discretion in
admitting evidence that defendant, about a half-hour before the
shooting, showed his firearm to a fellow TRG member and said he
was going to go shoot up a house. This evidence exemplified an
offensive rather than a defensive state of mind.

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III. Opinion Evidence on Typical Gang State of Mind Did Not Violate Due Process
Defendant contends the trial court denied him due process
in admitting an expert opinion and a lay opinion involving,
respectively, the typical mindset of a gang member who claims
membership ―for life‖ and a typical TRG view of the police.
A trial court‘s decision to admit an expert opinion or a
lay opinion is reviewed for abuse of discretion. (People v.
McAlpin (1991) 53 Cal.3d 1289, 1299; People v. Medina (1990)
51 Cal.3d 870, 887.) The admission of relevant evidence will
not offend due process unless the evidence is so prejudicial
that it renders the defendant‘s trial fundamentally unfair.
(People v. Partida (2005) 37 Cal.4th 428, 439.) As will become
clear from the following discussion of these expert and lay
opinions, this due process line was not crossed here and the
trial court did not abuse its discretion in admitting this
evidence.
A. Expert Opinion
There was evidence that defendant had stated to a police
officer in March 2007 that he was TRG ―for life.‖
A gang expert later testified that a gang member saying he
was ―for life‖ was a ―very common‖ gang expression, and meant
the gang member had ―really [i]mbibed‖ the lifestyle, cause, and
values of the gang. The expert then immediately stated that a
gang member could earn ―respect‖ within the gang by fighting an
enemy, including killing a cop.

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A gang expert is prohibited from opining on a specific gang
member-defendant‘s state of mind, but the expert may testify
regarding the culture and habits of gangs from which the jury
may infer a state of mind. (People v. Gonzalez (2006)
38 Cal.4th 932, 944; People v. Gonzalez (2005) 126 Cal.App.4th
1539, 1550-1551.)
Defendant argues that the gang expert here impermissibly
opined on the subjective belief system of anyone who uttered the
phrase ―for life,‖ because such testimony was without
foundation. But the expert, as an expert, testified to the
ubiquity of this phrasing and his experience with it, a ubiquity
that served as the foundation for the expert‘s opinion.
Moreover, the gang expert properly opined on the typical state
of mind of gang members who utter this phrase, and not
improperly on defendant‘s own state of mind. (People v. Olguin
(1994) 31 Cal.App.4th 1355, 1371 [gang expert‘s ―testimony
focused on what gangs and gang members typically expect and not
on [the gang-member defendant‘s] subjective expectation in this
instance‖].)
B. Lay Opinion
A lay witness opined that TRG had a ―strong–ass hatred over
officers‖ and that TRG saw this attitude ―as part of the gang
life.‖
Defendant contends that no foundation was laid for the
admission of this opinion. We disagree.

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As relevant, Evidence Code section 800 allows a lay opinion
if it is rationally based on the witness‘s perception. (Evid.
Code, § 800, subd. (a).) Here, it was. Although the lay
witness was not a gang member, she socialized with TRG members,
knew about the gang and those who lived in her neighborhood, and
knew their views about police officers.
Defendant also claims this opinion did nothing to help the
jurors understand the witness‘s testimony. (Evid. Code, § 800,
subd. (b).) However, defendant provides no argument in his
opening brief on this point; consequently, he has forfeited this
claim. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
IV. Sufficient Evidence of Premeditation and Deliberation
Defendant contends there is insufficient evidence of
premeditation and deliberation to support his first degree
murder conviction. We disagree.
In reviewing this evidentiary sufficiency issue, we must
determine whether, after viewing the evidence in the light most
favorable to the judgment, a rational trier of fact could have
found premeditation and deliberation beyond a reasonable doubt.
(People v. Johnson (1980) 26 Cal.3d 557, 577.)
―‗Deliberation‘ refers to careful weighing of
considerations in forming a course of action; ‗premeditation‘
means thought over in advance. [Citations.] ‗The process of
premeditation and deliberation does not require any extended
period of time. ―The true test is not the duration of time as
much as it is the extent of the reflection. Thoughts may follow

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each other with great rapidity and cold, calculated judgment may
be arrived at quickly.‖‘‖ (People v. Koontz (2002) 27 Cal.4th
1041, 1080.) The requirement of premeditation and deliberation
excludes homicides that are ―the result of mere unconsidered or
rash impulse hastily executed.‖ (People v. Thomas (1945)
25 Cal.2d 880, 900-901.)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the
court identified three categories of evidence typically found in
premeditated and deliberate first degree murder: planning,
motive, and manner of killing (id. at pp. 26-27). Where there
is little or no evidence of planning, as here, evidence of
motive together with the manner of killing may suffice. (Id. at
p. 27.)
Defendant repeatedly claimed ―That cop deserved it.‖ He
also stated, ―That‘s the same cop that beat up [one of
defendant‘s] homie[s] before.‖ This constitutes evidence of
motive. So too does the fact that defendant, who had an
outstanding warrant, tried to elude Detective Nguyen and shot
the officer when he (defendant) realized there was no other way
out. As the Attorney General correctly notes, while defendant
was running, he had sufficient time to reflect on and weigh a
decision to turn around and shoot Detective Nguyen, who was on
his trail. (See People v. Memro (1995) 11 Cal.4th 786, 863 [a
rational jury could conclude that premeditation and deliberation
occurred during the time it took the defendant to run about 60
yards].) Nor is it required that defendant have specifically

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targeted Detective Nguyen. Ample evidence was presented that
defendant had previously threatened to shoot law enforcement-
related personnel who tried to exercise authority over him.
(See Pertsoni, supra, 172 Cal.App.3d at pp. 373-375 [evidence of
hatred of Yugoslav officials in general showed criminal motive
in killing one].)
There was also evidence of ―a manner of killing from which
the jury could reasonably infer that the [shooting was]
deliberately calculated to result in death.‖ (Anderson, supra,
70 Cal.2d at pp. 33-34.) As the Attorney General observes,
there was evidence that defendant turned, and shot Detective
Nguyen not once but three times, hitting him in critical areas
like the neck, abdomen, and back so rapidly that the detective
could not return fire before becoming incapacitated.
Defendant argues that the evidence does not show a cold,
calculated killing. The whole unplanned incident happened very
quickly. Defendant notes that he was unexpectedly spotted and
then chased by a member of law enforcement, while carrying a gun
that had been given to him earlier by another TRG member simply
to hold. Once spotted, defendant fled, over fences and chicken
coops. He impulsively shot only when he had nowhere else to
run, and only after the detective was going for his own weapon.
This is one way to view the evidence, but, as explained above,
not the only way, and is not the view most favorable to the
judgment.

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We conclude there is sufficient evidence of premeditation
and deliberation.
V. Trial Court Properly Responded to Jury’s Question
on Premeditation and Deliberation
During deliberations, the jury twice asked the trial court
to clarify the following sentence in a standard instruction on
premeditated and deliberate murder: ―The defendant acted with
premeditation if he decided to kill before committing the act
that caused death.‖ (Former CALCRIM No. 521.) Specifically,
the jury inquired, ―Does this [sentence] mean that the
premeditation has to be with regard to considering this
particular death?‖; in other words, ―Does thinking about and/or
threatening to kill any member of a particular group constitute
premeditation for later killing a member of that group?‖
As pertinent, the trial court answered the jury‘s inquiry
as follows: ―Evidence that a defendant ‗thought about and/or
threatened to kill‘ a member of a particular group can be
considered in deciding whether the defendant acted with
premeditation and deliberation when he committed the act causing
the death of a member of that group. The People must prove that
the defendant acted with premeditation and deliberation in
connection with the charged crime.‖
Defendant contends the trial court‘s answer improperly
lowered the prosecution‘s burden of proving beyond a reasonable
doubt the element of premeditation, by allowing conviction

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without a finding that defendant premeditated the charged
killing. We disagree.
The trial court‘s answer told the jurors they would be
deciding whether defendant ―acted with premeditation and
deliberation when he committed the act causing the death[.]‖
(Italics added.) The trial court then reiterated that the
People must prove that ―defendant acted with premeditation and
deliberation in connection with the charged crime.‖ (Italics
added.) Defendant was charged with murder. Pursuant to the
trial court‘s answer, the jury could not reasonably have
convicted defendant without finding that he premeditated the
charged killing.
VI. The LWOP Sentence Is Not Categorically Prohibited
Under the Eighth Amendment
Defendant claims that an LWOP sentence for a 16-year-old
(about five weeks shy of 17) is categorically prohibited as an
unconstitutional cruel and unusual punishment under the federal
Eighth Amendment. We disagree.
Section 190.5, subdivision (b) establishes a presumption
that 16- or 17-year-olds who are tried as adults and convicted
of a first degree special circumstance murder under section
190.2 (like defendant here, § 190.2, subd. (a)(7)—an intentional
and knowing killing of a police officer engaged in his duties)
be given an LWOP sentence, unless the trial court, in its
discretion, determines that a sentence of 25 years to life
should be imposed; again, though, the LWOP sentence is the

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presumptive choice. (People v. Guinn (1994) 28 Cal.App.4th
1130, 1145, 1147.)7
Two recent decisions, one from the First Appellate
District, People v. Blackwell (2011) 202 Cal.App.4th 144
(Blackwell), and the other from the Second Appellate District,
People v. Murray (2012) 203 Cal.App.4th 277, have concluded that
the Eighth Amendment does not categorically bar LWOP sentences
for 16- or 17-year-old first degree special circumstance
murderers tried as adults. (Blackwell, supra, 202 Cal.App.4th
at pp. 147, 155-158; Murray, supra, 203 Cal.App.4th at pp. 280,
283-284.) Blackwell involved a 17-year-old who was convicted of
first degree murder during an attempted robbery inside the
victim‘s home. Murray concerned a 17-year-old multiple
murderer. We agree with these two decisions.
The United States Supreme Court, in Graham v. Florida
(2010) 560 U.S. ___ [176 L.Ed.2d 825] (Graham), held that the
Eighth Amendment prohibits an LWOP sentence for juvenile
offenders who have not committed a homicide. (Id. at p. ___
[176 L.Ed.2d at p. 845].)
7 Defendant does not raise any issue concerning the trial
court‘s discretion under section 190.5, subdivision (b) to
impose a 25-year-to-life sentence. The trial court‘s stated
reasons, in rejecting defendant‘s argument at sentencing that an
LWOP sentence is unconstitutional, also implicitly rejected the
nonpresumptive sentence of 25 years to life under section 190.5,
subdivision (b).

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As Blackwell noted, the high court in Graham applied a two-
step approach appropriate for determining categorical challenges
to punishment as cruel and unusual. (Blackwell, supra,
202 Cal.App.4th at p. 157.)
In the first step, a court considers whether there is a
national consensus against the sentencing practice at issue.
(Blackwell, supra, 202 Cal.App.4th at p. 157.) Defendant
concedes that 40 states and the federal system actively sentence
juveniles to LWOP terms. If anything, the national consensus is
counter to defendant‘s position.
In the second step, a court, guided by judicial
interpretation of the Eighth Amendment‘s text, history, meaning
and purpose, independently determines whether the LWOP sentence
violates the Constitution. (Blackwell, supra, 202 Cal.App.4th
at p. 157.) Defendant has not cited any Eighth Amendment
jurisprudence, other than Graham, supra, 560 U.S. ___
[176 L.Ed.2d 825] and Roper v. Simmons (2005) 543 U.S. 551
[161 L.Ed.2d 1] (juvenile offenders cannot be sentenced to
death), supporting his claim of an LWOP categorical bar here.
In Blackwell, the court concluded, ―The reasoning of Graham
[which distinguished juveniles from adults in terms of brain
development, capacity for change, and moral culpability, and
noted the severity and irrevocability of murder, in prohibiting
LWOP sentences for juvenile nonhomicide offenders] cannot be
stretched to categorically bar LWOP sentences for juveniles who
[as in Blackwell] aid and abet a homicide, particularly when

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that homicide is a first degree special circumstance murder.‖
(Blackwell, supra, 202 Cal.App.4th at p. 158.)
Even more so, Graham cannot be stretched to categorically
bar LWOP sentences for a 16-year-old juvenile (about five weeks
shy of 17) who intentionally and knowingly kills a police
officer engaged in his duties (a special circumstance—§ 190.2,
subd. (a)(7)), and does so with first degree murder culpability.
DISPOSITION
The judgment is affirmed.8
BUTZ , Acting P. J.
We concur:
DUARTE , J.
HOCH , J.
8 Pursuant to section 2933.2, defendant is not eligible to
accrue custody credits because he was convicted of murder.

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