P. v. Nash

Filed 11/14/16 P. v. Nash CA5
Opinion After Supreme Court Remand
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
KATILA ANN JEAN NASH et al.,
Defendants and Appellants.
F066160/F066278
(Super. Ct. Nos. BF131808A &
BF131808C)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.
Madeline McDowell, under appointment by the Court of Appeal, for Defendant
and Appellant Katila Ann Jean Nash.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant David Deshawn Moses.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for
Plaintiff and Respondent.

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-ooOoo-
A jury found defendants David Deshawn Moses and Katila Ann Jean Nash guilty
of first degree murder (Pen. Code,1 §§ 187, subd. (a), 189) and found true the special
circumstance that the murder was committed while defendants were engaged in the
commission or attempted commission of burglary (§ 190.2, subd. (a)(17)(G)). Moses
was sentenced to life in prison without the possibility of parole (LWOP), and Nash was
sentenced to 25 years to life in prison.2
Before the joint trial on guilt, there was a jury trial on Nash’s competence, and she
was found competent to stand trial. Nash was tried as an adult, but she was 17 years old
at the time of her competency trial. On appeal, she raises two claims regarding the
competency determination; both claims are based on her age. First, Nash argues the adult
criminal court should have complied with a California Rule of Court3 that applies in
juvenile proceedings in appointing an examiner to assess her competence. Second, she
argues the jury instruction on competence was incorrect because it described the standard
of competence applicable to adult criminal defendants. Nash asserts these alleged errors
in her competency trial resulted in a denial of due process.
With respect to the trial on guilt, Nash contends (1) the trial court erred by
admitting her statements to the police made after she invoked her right to remain silent
and (2) there was no substantial evidence to support the special circumstance finding.
Finally, with respect to her punishment, Nash contends the trial court was required
to impose an individualized sentence because she was 15 years old at the time of the
1 All further statutory references are to the Penal Code unless otherwise noted.
2 On its own motion, the court consolidated the appeals filed by Nash and Moses. Moses’s
appeal was originally designated case No. F066278 and is now consolidated with Nash’s appeal
under case No. F066160.
3 All further rule references are to the California Rules of Court.

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offense and the sentence she received of 25 years to life in prison constitutes cruel and
unusual punishment.
In his appeal, Moses argues the trial court erred by denying defendants’ joint
Wheeler/Batson4 motion. Nash joins in and adopts this contention.
Moses also contends the state and federal prohibitions against cruel and unusual
punishment preclude a sentence of LWOP for minors. (Moses was 17 years old at the
time of the offense.) Alternatively, he argues the trial court abused its discretion by
imposing LWOP instead of 25 years to life given the circumstances of his case.
In our prior opinion, we affirmed Nash’s judgment. In Moses’s case, we vacated
his sentence and remanded for resentencing under the guidance of People v. Gutierrez
(2014) 58 Cal.4th 1354 (Gutierrez), and we otherwise affirmed. The California Supreme
Court granted review in this case and has since returned the case to this court with
directions to vacate our prior opinion and reconsider the cause as to Nash in light of
People v. Franklin (2016) 63 Cal.4th 261, 269 (Franklin) and People v. Banks (2015) 61
Cal.4th 788 (Banks) (People v. Nash, review granted Oct. 14, 2015, S228198). We now
modify the opinion, reverse the special circumstance finding as unsupported by
substantial evidence, and remand the matter to the trial court to determine whether Nash
was afforded sufficient opportunity to make a record of information relevant to her
eventual youth offender parole hearings and, if not, to afford her that opportunity.
PROCEDURAL HISTORY
In October 2010, the Kern County District Attorney filed an information against
Moses, Nash, and Nash’s older sister, Angelique Elandra Nash.5 All three defendants
were charged with premeditated murder (§ 187), and the district attorney alleged they
4 People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part in Johnson v.
California (2005) 545 U.S. 162, 168; Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
5 For brevity and clarity, we refer to Angelique Elandra Nash, who is not an appellant in
this case, by her first name.

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committed the murder while engaged in the commission or attempted commission of
burglary (§ 190.2, subd. (a)(17)(G)). It was further alleged that Moses and Angelique
were 16 years of age or older at the time they committed the offense (Welf. & Inst. Code,
§ 707, subd. (d)(1)) and Nash was 14 years or older at the time she committed the offense
(id., subd. (d)(2)).
On July 16, 2012, Nash’s attorney filed a motion to suspend proceedings pursuant
to section 1368. In his supporting declaration, Nash’s attorney stated, “[B]ased on the
last three attempted interviews and trial preparation with [Nash], it has become apparent
to me that [Nash] cannot meaningfully assist in her defense nor comprehend the
proceedings against her.” Two days later, the trial court suspended the proceedings and
appointed a psychologist to examine Nash. In August 2012, a jury trial on Nash’s
competence was held, and the jury found Nash competent to stand trial.
Moses, Nash, and Angelique were tried together. During jury selection, Nash’s
attorney made a Wheeler/Batson motion, which the other two defendants joined; defense
counsel argued the prosecutor was targeting women and Hispanic women. The trial court
found a prima facie showing under Wheeler/Batson, and the prosecutor offered his
reasons for exercising his peremptory challenges. Finding the prosecutor’s explanations
nondiscriminatory and credible, the court denied defendants’ motion.
The jury found Nash and Moses guilty of murder and found the burglary special
circumstance allegation true. The jury could not reach a verdict as to Angelique, and the
court declared a mistrial in her case.
The trial court sentenced Moses to LWOP. Nash received a sentence of 25 years
to life in state prison.

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FACTS
On the afternoon of April 14, 2010, Andrew Masengale visited his grandmother,
Dorothy Session, at her house on Camino Sierra, located in the greater Bakersfield area.6
Session was not feeling well, and she told Masengale she was going to take some Tylenol
and lie down for a while until she had to pick up her son John at work. Around
3:15 p.m., Masengale left the house, locking the back door as he left. He always used the
back door at Session’s house, as did everyone who knew her. Session usually left the
back door unlocked when she was home so she could tend to her garden, but she would
lock the back door if she were going to lie down. The front door was always locked.
Neighbors of Session reported seeing a man and two women in the area that
afternoon. Patricia Sandoval lived on a cul-de-sac off Camino Sierra. Sometime
between 2:00 and 4:00 p.m., she noticed her dogs were barking, and she went to the front
door. She saw a Black male at her door and two females standing at the front of her
driveway. Sandoval opened the door and asked if she could help them. One of the
women asked if Matthew was there. Sandoval told them no one by that name lived there,
and the three walked away. Later that night, Sandoval reported this incident to law
enforcement. She described the man as Black, about six feet tall, wearing a red shirt,
black gym shorts, and about 19 or 20 years old. The woman who spoke to Sandoval was
short, a little wide and her hair was colored and worn in braids. The other woman was
taller and wider than the woman Sandoval talked to.
Janet York lived two doors down from Session on Camino Sierra. Around
4:00 p.m., her dog started barking, and York noticed a young woman standing at the end
of her front porch and looking over her fence. York thought the woman was Hispanic but
agreed she could have been light-skinned Black. The woman asked if Erika was there.
York also saw a young man and woman standing at the front of her driveway by the
6 All further dates in this section occurred in 2010.

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street. The man appeared to be Black and about 19 or 20 years old; the woman appeared
to be Hispanic or light-skinned Black and about the same age. York told the woman on
her porch that no one named Erika lived there, and the woman left.
Kimbria Lopez’s parents were Session’s next door neighbors on Camino Sierra.
That day, Lopez took her mother shopping, and the two of them returned to Lopez’s
parents’ house around 3:45 to 4:00 p.m. At that time, Lopez saw Session on her front
porch; Session retrieved her mail, walked back inside her house, and closed the front
door. Lopez’s son Jacob, who was 14 years old, did not go shopping with his mother and
grandmother, and instead stayed at Lopez’s parents’ house all afternoon with his
grandfather. At some point, Jacob went to the bathroom, which had a window looking
out on Session’s driveway and house. Through the bathroom window, he saw a woman
walking in the middle of Session’s driveway. She wore an orange shirt and jeans. At
trial, he identified Angelique as possibly the woman he had seen near Session’s house.
Around 6:00 p.m., Masengale received a call from his mother asking him to check
on Session because she had not picked up his Uncle John from work. Masengale and his
friend, Megan Winder, drove to Session’s house. They entered through the back door,
which was closed but unlocked. There were no signs of forced entry. Masengale noticed
a buzzer for the oven was on, and he turned it off. He stepped on Session’s glasses,
which were on the floor. Then he noticed some blood on a chair and he walked around
and found Session lying on the floor in the dining room. There was dried blood all over
her face and she was throwing up blood. She was still conscious.
Winder called 911, and Masengale spoke to the dispatcher. Winder went outside
where she saw a California Highway Patrol (CHP) officer and flagged him down.
Masengale starting talking to Session. He asked her if she fell, and she said no. She said
a Black man and Black woman were in the house and they wanted money. She asked
Masengale to check for her purse. He found her purse in a dresser drawer in her

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bedroom. It appeared that the bedroom had not been touched and nothing had been taken
from her purse. Nothing appeared to be out of place in the house.
Richard Pierce was the CHP officer Winder flagged down. He arrived at
Session’s house at 6:35 p.m. Pierce knelt down beside Session and tried to make sure her
airway was open. He asked Session “who had done this,” and eventually Session said it
was a young Black man. Pierce asked “how many had done this,” and she responded
two. He asked her to describe the second man, and Session stated it was a female. She
did not identify the woman’s race or ethnicity.
Kern County Sheriff’s deputy Joe Weiss responded to Session’s house based on a
dispatch report of a victim beaten in her home. In the house, he observed Pierce giving
Session first aid. Weiss asked Session “who did this” and she said a Black male and a
Black female. Within a few minutes, additional law enforcement officers and ambulance
and fire department personnel arrived.
Session was 81 years old. She was taken to Kern Medical Center by ambulance
and died later that night.
Criminalist Jeanne Spencer arrived at Session’s house shortly after 10:00 p.m. to
investigate the crime scene. She observed blood spatter and blood stains in the den and
kitchen. In the den, there were blood stains on the floor in front of the fireplace, in front
of a chair next to the fireplace, and near another chair that was next to the entry to the
dining room. Blood was also spattered on the fireplace. A right shoe was found in the
den near the entry to the kitchen. A tooth and what appeared to be dental hardware were
lying on the floor near the fireplace. A left shoe and a tooth were found in another area
of the den near the entry to the dining room. There were more blood stains in the dining
room. In the kitchen, there was blood spatter on the side of the stove and at the threshold

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to the den. A Wave brand cigarette butt was found in the kitchen near the back door and
collected as evidence.7
Based on the pattern of blood spatter, Spencer concluded there had been at least
two events in the house: one event in the kitchen area by the entry to the den and another
event in the den near the fireplace. Spencer characterized most of the blood spatter in
these areas as “impact spatter,” meaning the spatter was likely caused by a forceful event
such as a punch to the victim. She also observed linear marks on the floor that suggested
the victim had been dragged a short distance in the den near the entry to the kitchen.
Forensic pathologist Lesley Wallis-Butler conducted an autopsy of Session the
next day. Wallis-Butler observed “quite a bit of facial trauma.” Session had a fractured
nose, significant bruising over both eyes, and an abrasion on the center of her nose with a
laceration that extended down the right side of her nose. She had a laceration that tore
through the outer and inner part of the upper aspect of her lip and another laceration to
the inner aspect of her upper lip. Session appeared to have been struck with such force
that it tore the tissues under her lip and nose. She also had a laceration to her lower lip
and a contusion to her lower lip. Session had a small contusion on her chest and bruises
on the backs of her hands, her forearms, and her right elbow. In the internal examination,
Wallis-Butler saw injuries consistent with falling and striking the back of the head. She
concluded the cause of Session’s death was blunt force head trauma. Based on the facial
injuries, Wallis-Butler believed Session had been struck at least twice.
Jason Balasis, a detective in the robbery-homicide unit of the Kern County
Sheriff’s Office, was the lead investigator for the case. He received his assignment
7 At trial, there was testimony that Session did not allow smoking in or near her house. In
addition, a criminalist was able to find a mixture of DNA on the filter end of the cigarette butt,
and she testified that she could not exclude any of the three defendants as contributors to the
DNA on the cigarette.

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around 8:00 p.m. on April 14, and he went to Session’s house that night. He interviewed
Kimbria and Jacob Lopez, York, John Session, and Masengale.
The next day, law enforcement received information about the crime from Cecilia
Martinez. Martinez lived in a converted garage behind a main house on Center Street.
Her adult neighbors in the main house (the Center Street house) were Sonja Arnold and
Roxy Dukes. According to Martinez, “quite a few kids” (teenagers and young adults)
also stayed at the Center Street house. Arnold’s niece, Nefertiti Patterson, and
Patterson’s child lived there. Arnold’s nephew, Darontrell Gage, and Jesse Estrada lived
there. Patterson and Gage were half-siblings. Moses was Patterson’s first cousin, and
Moses had been staying at the Center Street house for about six weeks. In addition,
Patterson and Angelique had known each other for 10 years and were best friends, and
Angelique would visit the Center Street house. On April 15, Martinez received
information about what happened to Session from Estrada and a niece of Arnold’s named
Tiarny. Based on what Estrada and Tiarny told her, Martinez called a secret witness
hotline.
As a result of the secret witness tip, Balasis interviewed Martinez. After speaking
with Martinez, Balasis interviewed Patterson, Gage, Arnold, and Estrada, all residents of
the Center Street house.
Patterson told Balasis she spoke to the three defendants on the afternoon of
April 14 before 5:00 p.m. The majority of her conversation was with Angelique.
Angelique told Patterson that she was going to rob the old lady until the lady started
screaming. Angelique said she left the house because the old lady started screaming.
Patterson reported that, during her conversation with Angelique, Nash was crying and
Moses was shaking his head and repeatedly saying, “I’m sorry, cuz.”
Patterson stated that Moses said he thought the lady was still alive but he was not
sure. Moses told Patterson he heard the lady making noises. Angelique told Patterson
that Moses had knocked the old lady over. Angelique said that she left, but went back for

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Nash because she could not leave her sister, that she was going to take something from
the victim’s home, but she did not because the lady scared her by screaming. Nash said
she did not take anything from the house. Patterson told Balasis that Angelique was
wearing an orange shirt. She also reported that Moses and Nash smoked cigarettes and
she was not sure if Angelique smoked. Patterson did not think any of the defendants had
been drinking or smoking when she talked to them.8
Balasis also interviewed Gage. One of the first things Gage told Balasis was that
he did not want to go to court and he did not want to be involved. Gage said he had
contact with the three defendants on April 14. He indicated that he received most of his
information from Moses. Gage stated that Moses told him he entered a lady’s home and
hit her. Moses said the lady yelled. Gage reported that Moses seemed scared and uneasy
and Nash was crying.9
On April 17, Balasis assisted in the arrest of Nash and Angelique at a hotel. An
orange shirt was found among their clothes. Balasis interviewed Nash and Angelique the
day they were arrested. Moses turned himself in later that day, and Balasis interviewed
him the next morning.
Balasis interviewed Angelique first. She told him they were looking for
Matthew’s house to smoke weed. They knocked on doors looking for Matthew.
8 At trial, Balasis testified about what Patterson told him as described. Patterson was also
called as witness. She testified that she remembered talking to Balasis and generally did not
dispute that she made the statements as Balasis testified. However, Patterson denied or claimed
not to remember the underlying facts. For example, Patterson testified that she could not
remember whether Angelique told her what Moses had done, even though she agreed she told the
police what he had done. In a similar vein, Patterson denied she saw Nash crying, and she could
not remember whether Moses said, “I’m sorry cuz,” but she agreed that she told the police these
things.
9 Gage’s statements to Balasis were introduced at trial through Balasis’s testimony. Gage
was also called as witness, but he testified generally that he did not recall what Moses told him
or what he (Gage) said during his interview with Balasis. For example, he testified that he did
not remember whether Moses told him that the old lady yelled and he also did not remember his
conversation with the police.

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Angelique stated they went to three houses. At the first house, a lady told them Matthew
did not live there. Angelique said a Mexican lady answered the door at the house she
went to prior to the victim’s house.
Angelique told Balasis that no one answered the front door at the victim’s house.
Angelique stayed outside and stood by a truck. She stated that she walked to the back
part of the victim’s house and then went back to the front of the house. She heard
someone screaming, “Oh, Lord, help me,” but she did not see the victim. She was
wearing an orange shirt. Angelique told Balasis that, after the incident, she went to the
Center Street house and told Patterson what happened. Balasis told Angelique that
Patterson had told him Angelique said she was looking for a house to steal from, but
Angelique denied saying this to Patterson.
Next, Balasis spoke to Nash. She told him she was supposed to be living at a
group home but she was staying with her mother in Bakersfield on Niles Street. She said
they walked down the street knocking on doors and asking for Matthew. She admitted
that she went inside the victim’s home.
Nash remembered speaking to a lady with a dog. She talked to a Mexican woman
who told her Matthew did not live there. At one point during the interview, Nash told
Balasis that the victim answered the back door and Nash asked if she could use the
telephone. Nash said she did not take anything from the home. She told Balasis that she
saw the victim and began to cry. She also said she was scared and she should have called
the police.
Balasis asked Nash whether she approached a house and asked for Erika, and she
remembered doing so. Initially, Nash denied that she went to the victim’s house to break
in. Balasis, however, told her he believed she went to steal things, and Nash admitted
this was true. Nash said she intended to make sure no one was at home before she went
to the back of the victim’s house and the victim surprised her. She stated that, inside the

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house, she picked up the phone to call her sister, Sherina, to come get her. Nash told
Balasis that the victim was making noises and asking for help.
Balasis interviewed Moses the next day. Moses told him that he had run away
from a group home and he was originally from Bakersfield. He was staying at the Center
Street house. He stated that he smoked marijuana on April 14 and he was looking for
someone named Matthew. Moses told Balasis that he was high on KJ10 and did not
remember what happened that day, although he did remember going to houses near the
victim’s house and knocking on doors and asking for Erika.
Moses also told Balasis that he smoked a blunt11 and after the high faded he went
to the Center Street house to meet up with Patterson. He said he heard details of the
crime and saw his photograph on the television news on April 17 and 18, and he was
scared and did not know what to do.
Moses told Balasis that he probably told Gage what he had done because he was
scared. Moses told Gage he hit the lady two times.
Balasis noticed that Moses’s right hand looked different from his left hand. A
knuckle on his right hand was very swollen. There was redness and it appeared to have
fresh scabbing.
Later in the interview, Moses admitted that he wanted to break into a house to get
money for food. He said he went to the victim’s home and asked to use the phone. He
was wearing gloves. Moses stated that he was not planning on killing anyone. He
thought the victim had a portable emergency pager that would call 911, and he did not
know if she pressed the button. The victim went to the back door. Moses asked her to
use the telephone to get a ride. He said the victim let him in the house, and then she
10 Balasis explained that KJ refers to phencyclidine (PCP) and is often mixed with
marijuana and smoked.
11 A blunt typically refers to a marijuana cigarette with a cigar wrapper. Moses told Balasis
that he walked down Niles Street and bought the blunt from some Mexicans.

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looked like she was scared of him. At that point, Moses thought she may have pushed a
button on a device to call the police.
Moses told Balasis he struck the victim twice. The first time she was standing and
the second time she was on the ground. She was saying, “oh, God,” and calling for help.
He stated that he dragged her from the kitchen into the living room area because he did
not know if anyone else was in the house. Moses thought the victim was still alive
because she was making noises when he left the house. He told Balasis he was at the
victim’s house to get money to get something to eat. He said he asked to use the phone
because the victim surprised him. Moses denied that he had a weapon. He said he
burned the shoes he wore that day because he was scared and he did not want to get
caught.
Call records for Session’s telephone number showed that a call from her phone
was made to a cell phone number for Moses’s uncle, Mike Patterson, at 4:17 p.m. on
April 14. The call lasted nine seconds.
Defense
Forensic psychologist Donald Hoagland assessed Nash and testified at trial about
her cognitive deficits and psychological issues. Nash’s full scale intelligence quotient
(IQ) score of 76 fell in a range “between below average and mental retardation or
deficiency.” She had mixed receptive expressive language disorder, and she had
“difficulty processing more than one stimulus at a time.” In addition, she had difficulties
maintaining a sense of self and was very erratic in her attitudes, plans, and behaviors.
Hoagland opined that an adolescent with Nash’s conditions and abilities, including
attention deficit hyperactivity disorder (ADHD), would not “have the reasoning ability or
the words needed to understand and form or carry out plans.”
Psychologist Thomas Middleton evaluated Moses. Moses’s IQ of 84 fell in the
borderline range. Moses was placed in a group home when he was 13, and he was treated
for ADHD. Middleton diagnosed Moses with ADHD, combined type, impulse control

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disorder, not otherwise specified (NOS), depressive disorder, NOS, polysubstance abuse
in institutional remission, physical abuse or neglect of child as victim, sexual abuse of
child as perpetrator, borderline intellectual functioning, and personality disorder, NOS,
with antisocial and borderline traits and paranoid and dependent features. Middleton was
presented the hypothetical that “an individual enters a residence and at the time or while
inside of the residence the individual strikes another because that individual panicked and
thought someone was [going to] push a button—a Life Alert type of a button.” He gave
his opinion that this hypothetical behavior was entirely consistent with Moses’s
diagnoses. Assuming the hypothetical individual had taken PCP, the conditions could
“result in extreme impulsivity and angry, unplanned, aggressive behavior.”
DISCUSSION
I. Nash’s competency trial
Generally, a person who is under 18 years old when she violates the law is subject
to delinquency proceedings in the juvenile court. (Welf. & Inst. Code, § 602, subd. (a).)
In certain circumstances specified by statute, however, the district attorney has discretion
to file an accusatory pleading against a minor directly in adult criminal court. (See Welf.
& Inst. Code, § 707, subd. (d).) Here, Nash was 15 years old at the time of the offense,
but the district attorney was permitted to prosecute her as an adult because she was
14 years of age or older at the time of the offense and the charged offense is punishable
by death or LWOP if committed by an adult. (Id., subds. (b)(1) & (d)(2)(A); § 190.2,
subd. (a)(17)(G).)12
Because she was tried as an adult, Nash was subject to the competency
determination procedures provided for adult criminal defendants. Nash contends that, as
12 The information alleged Nash’s offense was punishable by death or LWOP if committed
by an adult. An alleged murder (regardless of degree or special circumstances) and a victim who
is 65 years of age or older are also circumstances that permit the district attorney to try a minor
who is at least 14 years of age as an adult. (Welf. & Inst. Code, § 707, subds. (b)(1) &
(d)(2)(C)(iv).)

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a matter of due process, she was entitled to the procedures of rule 5.645(d), which applies
in juvenile proceedings. She raises two claims. First, she claims the trial court was
required to appoint an examiner who met the qualifications listed in rule 5.645(d).
Second, she faults the jury instruction on competence because it described the standard
for adult criminal defendants rather than a standard of competence tailored to juvenile
proceedings. We conclude Nash has failed to establish a due process violation.
A. Standard and procedures for competence determination
1. Due process rights
It is well-established that the criminal trial of an incompetent defendant violates
the due process clause of the state and federal constitutions. (Drope v. Missouri (1975)
420 U.S. 162, 171–172 (Drope); Timothy J. v. Superior Court (2007) 150 Cal.App.4th
847, 857 (Timothy J.).) Further, “[b]ecause this principle is fundamental to our adversary
system of justice [citation], the [United States Supreme Court] has held that failure to
employ procedures to protect against the trial of an incompetent defendant is a
deprivation of due process. [Citations.]” (Timothy J., supra, at p. 857, citing Pate v.
Robinson (1966) 383 U.S. 375, 385 & Drope, supra, at p. 172.)
The Supreme Court set forth the federal constitutional test for determining
competence to stand trial in Dusky v. United States (1960) 362 U.S. 402 (Dusky). The
test is whether the defendant “‘has sufficient present ability to consult with [her] lawyer
with a reasonable degree of rational understanding—and whether [she] has a rational as
well as factual understanding of the proceedings against [her].’” (Ibid.) It is not
sufficient for the court to determine the defendant is oriented to time and place and is able
to recall events. (Ibid.)
2. Statutory framework in adult criminal proceedings
For criminal defendants, section 1367 is intended to codify the constitutional
standard. (See People v. Welch (1999) 20 Cal.4th 701, 777.) It provides the following
definition of incompetence: “A defendant is mentally incompetent … if, as a result of

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mental disorder or developmental disability, the defendant is unable to understand the
nature of the criminal proceedings or to assist counsel in the conduct of a defense in a
rational manner.” (§ 1367, subd. (a), italics added.)
The procedures for determining whether a defendant is competent are provided in
the sections that follow section 1367. Under section 1368, subdivision (a), if “a doubt
arises in the mind of the judge as to the mental competence of the defendant, he or she
shall … inquire of the attorney for the defendant whether, in the opinion of the attorney,
the defendant is mentally competent.” If the defendant’s attorney “informs the court that
he or she believes the defendant is or may be mentally incompetent, the court shall order
that the question of the defendant’s mental competence is to be determined in a hearing
which is held pursuant to Sections 1368.1 and 1369.” (§ 1368, subd. (b).) Even if
counsel informs the court he or she believes the defendant is competent, the court may
order a competency hearing. (Ibid.)
If the court determines a trial on competence is necessary, it must suspend the
criminal proceedings and appoint a psychiatrist or licensed psychologist to examine the
defendant. (§§ 1368, subd. (c), 1369, subd. (a).) The court-appointed examiner is
required to “evaluate the nature of the defendant’s mental disorder, if any, [and] the
defendant’s ability or inability to understand the nature of the criminal proceedings or
assist counsel in the conduct of a defense in a rational manner as a result of a mental
disorder .…” (§ 1369, subd. (a), italics added.) Section 1369 provides the procedures for
holding a trial on competence.
3. Statutory framework in juvenile delinquency proceedings
Minors subject to delinquency proceedings are entitled to due process, and this
includes the right to a determination of competence. (Timothy J., supra, 150 Cal.App.4th
at p. 857.) Procedures for determining competence in juvenile proceedings are provided
in Welfare and Institutions Code section 709 and rule 5.645(d). A minor is defined as
incompetent “if he or she lacks sufficient present ability to consult with counsel and assist

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in preparing his or her defense with a reasonable degree of rational understanding, or
lacks a rational as well as factual understanding, of the nature of the charges or
proceedings against him or her.” (Welf. & Inst. Code, § 709, subd. (a).) Unlike
section 1367, the definition applicable in juvenile proceedings does not require a minor’s
incompetence to be a “result of mental disorder or developmental disability.”
If the trial court “finds substantial evidence raises a doubt as to the minor’s
competency,” it must suspend the proceedings and order a hearing on competence.
(Welf. & Inst. Code, § 709, subds. (a) & (b).) “The court shall appoint an expert to
evaluate whether the minor suffers from a mental disorder, developmental disability,
developmental immaturity, or other condition and, if so, whether the condition or
conditions impair the minor’s competency.” (Id., subd. (b).) The court-appointed expert
must “have expertise in child and adolescent development, and training in the forensic
evaluation of juveniles, and shall be familiar with competency standards and accepted
criteria used in evaluating competence.” (Ibid.) Rule 5.645(d) requires additional
specific experience and training for a court-appointed expert in juvenile proceedings.13
“Whether an adult or a child, the question at the competency hearing is the same:
Does the individual have sufficient present ability to consult with his or her lawyer with a
reasonable degree of rational understanding and a rational, as well as a factual,
understanding of the proceedings?” (In re Christopher F. (2011) 194 Cal.App.4th 462,
13 For example, under rule 5.645(d)(1)(C), a court-appointed expert must: “(i) Possess
demonstrable professional experience addressing child and adolescent developmental issues,
including the emotional, behavioral, and cognitive impairments of children and adolescents; [¶]
(ii) Have expertise in the cultural and social characteristics of children and adolescents; [¶]
(iii) Possess a curriculum vitae reflecting training and experience in the forensic evaluation of
children; [¶] (iv) Be familiar with juvenile competency standards and accepted criteria used in
evaluating juvenile competence; [¶] (v) Possess a comprehensive understanding of effective
interventions as well as treatment, training, and programs for the attainment of competency
available to children and adolescents; and [¶] (vi) Be proficient in the language preferred by the
child, or if that is not feasible, employ the services of a certified interpreter and use assessment
tools that are linguistically and culturally appropriate for the child.”

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468, disapproved on another point in In re R.V. (2015) 61 Cal.4th 181, 203, fn. 5.) In
both adult criminal and juvenile delinquency cases, there is a presumption of competence,
and the defendant or the minor has the burden to prove incompetence. (§ 1369; Medina
v. California (1992) 505 U.S. 437, 449, 452–453; In re R.V., supra, at pp. 196–198.)
4. Timothy J.
Nash’s due process claims rest almost entirely on the Court of Appeal’s reasoning
in Timothy J., supra, 150 Cal.App.4th 847. For this reason, before we address her claims,
we consider the case in some detail.
In Timothy J., the court addressed the question whether, under a prior rule of court
governing competence determinations in juvenile delinquency proceedings,14 a minor
was required to show he or she suffered from “a mental disorder or developmental
disability” in order to establish incompetence. (Timothy J., supra, 150 Cal.App.4th at
p. 858.) The court held the answer was no, holding the prior rule of court “d[id] not
require that the minor have a mental disorder or developmental disability before a doubt
may be raised or a finding made that he [or she] is incompetent to stand trial.” (Id. at
p. 861.)
In reaching its conclusion, the court observed that the constitutional standard as
stated in Dusky, supra, 362 U.S. at page 402, does not define incompetency in terms of
mental illness or disability. (Timothy J., supra, 150 Cal.App.4th at p. 860.) Rather, the
phrase “mental disorder or developmental disability” is found in section 1367, which
applies to adult criminal proceedings. The court reasoned:
14 The court considered former rule 1498(d), which was amended and renumbered as
rule 5.645 effective January 1, 2007. (Timothy J., supra, 150 Cal.App.4th at p. 851, fn. 2.)
Former rule 1498(d) provided, in part: “If the court finds that there is reason to doubt that a child
who is the subject of a petition filed under [Welfare and Institutions Code] section 601 or 602
[authorizing juvenile delinquency proceedings] is capable of understanding the proceedings or of
cooperating with the child’s attorney, the court shall stay the proceedings and conduct a hearing
regarding the child’s competence.” Former rule 1498(d) did not mention “mental disorder,”
“developmental disability,” or “mental retardation.”

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“As a matter of law and logic, an adult’s incompetence to stand trial
must arise from a mental disorder or developmental disability that limits his
or her ability to understand the nature of the proceedings and to assist
counsel. (See Pen. Code, § 1367, subd. (a).) The same may not be said of
a young child whose developmental immaturity may result in trial
incompetence despite the absence of any underlying mental or
developmental abnormality.” (Timothy J., supra, 150 Cal.App.4th at
p. 860.)
Underlying the court’s reasoning was the presumption that a “normal adult” would
be competent to stand trial and, therefore, an adult’s incompetence must be the result of
an abnormality, but that presumption would not necessarily apply to young children. In
other words, a young child could be incompetent simply as a result of her age-appropriate
immaturity even if she is “normal.” (Timothy J., supra, 150 Cal.App.4th at p. 861.) The
court further explained:
“Certainly no one would dispute that a three-year-old child would be
incompetent to stand trial because of his or her cognitive inability to
understand the proceedings or to assist his or her attorney in preparing a
defense. Thus, for purposes of determining competency to stand trial, we
see no significant difference between an incompetent adult who functions
mentally at the level of a 10 or 11 year old due to a developmental
disability and that of a normal 11 year old whose mental development and
capacity are likewise not equal to that of a normal adult. Under either
condition or state, the test is ‘“whether he has sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding—and whether he has a rational as well as factual
understanding of the proceedings against him.”’” (Timothy J., supra, 150
Cal.App.4th at p. 861.)
Timothy J. was a consolidated appeal, and one of the cases involved a minor
named Dante, who was 11 years old at the time of the juvenile proceedings. (Timothy J.,
supra, 150 Cal.App.4th at p. 851.) Dante’s expert witness, Dr. Edwards, determined that
Dante had an IQ of 102 and “was performing in the normal range for his age with no
psychological problems or personality disorders.” (Id. at p. 853.) Nonetheless, Edwards
concluded the boy was incompetent to stand trial “because he was unable to understand
the issues, including the role of the courtroom participants, and the nature of the

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punishment.” (Id. at p. 854.) Edwards explained that “the brain of a young child has
mildly developed frontal lobes” and “[a]s the person reaches puberty around the ages of
11, 12, and 13, the myelination process takes place in the frontal lobes and the individual
begins to develop the ability to think logically, abstractly, and to have a sense of the
future.” (Id. at p. 854, fn. omitted.) Both Edwards and the court-appointed expert who
assessed Dante concluded that his “brain ha[d] not fully developed and he was unable to
think [logically and abstractly].” (Id. at p. 860.)
The Court of Appeal noted that the experts’ conclusions were “supported by the
literature, which indicates that there is a relationship between age and competency to
stand trial and that an adolescent’s cognitive, psychological, social, and moral
development has a significant biological basis.” (Timothy J., supra, 150 Cal.App.4th at
p. 860, citing Steinberg, Juveniles on Trial: MacArthur Foundation Study Calls
Competency Into Question (2003) 18 Crim. Just. 20, 21.) The court continued, “While
many factors affect a minor’s competency to stand trial, ‘the younger the juvenile
defendant, the less likely he or she will be to manifest the type of cognitive understanding
sufficient to satisfy the requirements of the Dusky standard.’ [Citations.]” (Timothy J.,
supra, at pp. 860–861, fns. omitted.) The court cited a researcher who “found that
30 percent of the 11 to 13 year olds, and 19 percent of the 14 and 15 year olds, performed
at the level of mentally ill adults who have been found incompetent to stand trial in
matters of understanding and reason.” (Id. at p. 861, fn. 14, citing Steinberg, 18 Crim.
Just., supra, p. 21.)
The court was careful to note that it was not holding that age alone could be the
basis for a finding of incompetency. (Timothy J., supra, 150 Cal.App.4th at p. 861.)
B. Facts
On July 18, 2012, the trial court heard Nash’s attorney’s motion to suspend
criminal proceedings pursuant to section 1368. The prosecutor noted that Nash’s
attorney had been her counsel of record for over two years but he was raising the issue of

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competence a week and a half before trial was set to start for all three defendants. Nash’s
attorney explained that Dr. Donald Hoagland (a doctor appointed by the court to assist
the defense in psychological forensic issues) had recently spent two days reevaluating
Nash. The court stated it had no choice but to suspend proceedings. It appointed
Dr. Michael Musacco to examine Nash and instructed the court clerk to ask the doctor to
conduct an expedited interview, so his report would be ready by July 30, 2012.
After the trial court identified Musacco as the appointed examiner, Nash’s attorney
requested a doctor who had experience with minors: “If I [can] briefly inquire pursuant
to the Timothy J. case, I would ask that the court appoint someone from this list who has
the experience in adolescent child development.” (Italics added.) The court responded
that it had a list of doctors and asked Nash’s attorney if he knew who qualified under the
criteria requested; Nash’s attorney did not know. The court stated it did not know either,
“So we’re going with Dr. [Musacco].”
The matter proceeded to a jury trial in August 2012. Nash presented the testimony
of her expert, Hoagland, and her attorney for juvenile court matters, James Sorena. The
prosecution called Musacco and two Juvenile Hall employees as witnesses.
1. Nash’s evidence
At the time of the competence trial, Hoagland had been a licensed psychologist for
26 years, and his practice involved assessment testing and psychotherapy with a focus on
adolescents. He met with Nash for two days in February 2011, one day in August 2011,
and two days in June 2012. He spent up to eight hours with Nash on each occasion and
administered eight different tests, including the Juvenile Adjudicative Competence
Interview. He also reviewed Nash’s records, including police reports, social study
reports from Child Protective Services, and education records. Nash had been a
dependent of the court since she was 10 years old. Her records reflected that Nash’s
mother was an addict and used methamphetamine when she was pregnant with her and

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Nash’s father molested her and had issues with substance abuse. The potential effects of
prenatal exposure to methamphetamine include abnormal brain development.
Hoagland concluded that Nash was not competent to stand trial based in large part
on her poor verbal skills. He explained, “[S]he lacked understanding or ability to reason
about a lot of significant issues related to her case, and also, a real concern comes from
her very, very limited verbal skills.” He found Nash’s verbal skills fell within the mildly
retarded range.15 He gave Nash the Woodcock-Johnson test to diagnose whether she had
expressive or receptive language disorders. Her ability to listen to a story and
immediately repeat it back was at the level of a second grader. Her ability to recall the
story the next day fell to first grade level. Her oral comprehension was at the second
grade level. Hoagland concluded Nash had a “receptive and expressive language,
listening and communicating language disorder.”
In addition, Nash had anxiety, depression, obsessive-compulsive disorder
(OCD),16 posttraumatic stress disorder (PTSD), and biologically based ADHD, and these
conditions contributed to Hoagland’s conclusion that Nash was not competent to stand
trial. Hoagland testified that her anxiety would disrupt many aspects of her functioning
and that her inability to concentrate, together with her other deficits, made her unable to
follow what was happening in the courtroom. Hoagland’s primary concern was Nash’s
impaired language ability. She did not understand words such as “illegal,” “defense,”
“automobile,” and “tides,” and she did not have the basic vocabulary or reasoning ability
to understand and communicate in a courtroom.
15 Hoagland testified that Nash’s overall IQ was 76 and usually a score of 70 or lower
(sometimes 75 or lower) is considered retarded. Her language score, however, was 68.
16 During one of their meetings, Nash counted the spirals in Hoagland’s spiral binder, a sign
of OCD. She would also count to herself in the courtroom as part of her OCD, once counting up
to 5,000.

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Hoagland also reviewed Musacco’s report. Musacco had given Nash the Georgia
Court Competency Test (GCCT), which is composed of 21 questions and takes about 10
to 15 minutes to administer. Hoagland testified that the GCCT was very simple and basic
and some of the questions were “totally unrelated to whether she can assist [her defense
attorney] in any way.” He further opined that evidence of Nash’s ability to follow
directions was unrelated to whether she could comprehend the trial proceedings or assist
in her defense.
Nash’s second witness, Sorena, was an attorney who had represented Nash in
juvenile court (in both dependency and delinquency proceedings) continuously since
2005, when she was about 10 years old. In 2005, Nash was the subject of a dependency
case in which it was alleged she was the victim of neglect and abuse by her mother and
father. In 2007, a delinquency petition was filed against Nash alleging two counts of
battery. At that time, Sorena had doubts about Nash’s competence to go to trial on the
battery charges, and he filed a motion requesting an evaluation. Based on his contacts
with her over the previous two years (2005–2007), Sorena found Nash to be very naïve
and immature. He testified, “[F]acing the formalities of a full trial, … I wasn’t confident
in my own mind that she would be qualified or mentally endowed … to assist me in the
course of a full trial.” At all times, Nash has seemed to Sorena to be younger than her
chronological age. At 10 years old, Nash struck Sorena as being like a seven- or eight-
year-old; when Nash was 17 years old (at the competency trial), she seemed more like a
13- or 14-year-old.
In the 2007 delinquency case, Sorena reached a plea agreement allowing Nash to
plead to a misdemeanor battery charge, and he withdrew his request for formal evaluation
of her competence. He explained, “If there was not going to be a trial, then I believed
that her level of understanding at that time was sufficient to support the entry of a plea,
and so I withdrew the request.” Sorena spent a lot of time talking with Nash about what
her rights were and what was required of her to enter a plea. He discussed possible

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defenses, likely outcomes, and potential penalties with her. He testified, “It took some
doing, but she understood it.”
More recently, during the two years she was awaiting trial in the present case,
Nash entered a guilty plea to felony resisting an officer under section 69. Sorena
discussed the case in detail with Nash. He did not raise the issue of competency. He
testified, “She understood [her] rights to my satisfaction that at the entry of a negotiated
settlement on the case that she was able to … effectively assist counsel— [¶] … [¶] —at
that proceeding under those circumstances.”
2. Prosecution’s evidence
Musacco, the court-appointed examiner, concluded that Nash was competent to
stand trial.
Musacco had been a licensed psychologist since 1995. He was on a panel of
experts who were appointed by the court to conduct evaluations. As part of an
evaluation, he interviews the subject, asking background information such as educational
and mental health treatment history, and conducts a mental status examination and
psychological testing. The court instructed examiners to administer three tests: an IQ
test, a malingering test, and a test of trial competency.
The prosecutor asked Musacco what definition of competency he applies when
conducting an evaluation. He responded as follows:
“Now the legal definition in our state is in order to be found
incompetent, the person has to suffer from a mental illness or a mental
disorder which causes them to be unable to understand the courtroom
procedures, to be unable to understand the outcome of their case, or if
they’re unable to assist their attorney in their defense.
“So they have to be able to know that there’s a lawyer that’s on their
side. There’s another lawyer that’s trying to convict them. They have to
know what their charges are, and if they’re convicted, they have to have an
understanding of what type of sentence they might receive out of that.

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“So if the person has a mental disorder which inhibits their
comprehension or understanding or their ability to … assist their attorney,
then they can be found incompetent to stand trial.”
Musacco met with Nash in July 2012 at juvenile hall. He had very little
information about her prior to the meeting. He spent about 50 minutes to an hour with
her. He believed she was being honest with him, and he saw no evidence that she was
trying to manipulate or exaggerate. Nash told him about her childhood. Musacco
described her childhood as difficult and chaotic. There was abuse and neglect, she lived
in a series of group homes, she developed symptoms of depression and a conduct
disorder, she ran away from home, and her school performance was affected.
In the mental status examination, Nash said she was sad, irritable, and upset. Her
self-esteem was low, and she had suicidal thoughts and had made attempts before. Her
symptoms were consistent with major depression and PTSD, but there was no evidence
of psychosis.
Nash scored 75 on a nonverbal intelligence test, which Musacco described as “in
the borderline range.” Nash scored at the sixth grade level on a test of reading ability.
Musacco tested Nash with the GCCT. He described the test as “fairly easy to
administer and score and [it] addresses the major areas of trial competence.” Scores
above 70 are considered passing, scores of 60-70 are marginal, and a score below 60
would be considered failing. Musacco asked Nash what the judge does at trial, and she
said he listens to her attorney and the prosecutor and “gives us time.” Musacco asked if
she meant a “sentence” and she said yes. Musacco took this to mean she understood the
judge would impose a sentence if she were found guilty. Nash said the jury finds out
whether she is guilty or not. She said her lawyer was supposed to help her. Musacco
asked how her lawyer was supposed to help her. She responded, “Well, he offers me
encouragement,” and, after Musacco followed up, she said, “He tells the people why I’m
not guilty.” Nash said the prosecutor is “supposed to do the opposite of my attorney,”

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witnesses “tell what happened,” and people attending the trial “sit quietly.” She said
during trial she would not talk and she would listen and pay attention.
Nash knew the names of her criminal defense attorney and her attorney for
juvenile court matters and knew how to fill out a slip at juvenile hall in order to contact
them. Musacco asked how she could help her attorney defend her and she responded,
“Tell him what happened.” She said she had done that. Nash felt her attorney was
looking out for her and was trying to help her. She said she was charged with murder,
which means “you killed someone,” and conspiracy, which is “when you’re with
someone who did something.” Nash told Musacco, “They said I helped David [Moses]
kill a lady.” “They said we were going to rob someone. And we didn’t know the lady
was there, and we got scared.” She believed if the jury found her guilty, she could be
sentenced to 15 years to life in prison.
Musacco gave Nash a score of 90 out of 100, within the passing range. In direct
examination, the prosecutor asked Musacco if Nash understood the roles of the various
parties, the charges, and the basic facts. Musacco responded, “Really she had no
difficulty understanding any of these questions.” While the test was not a definitive
measure of competence, in Nash’s case, her GCCT test score “was consistent with the
rest of the data that [Musacco] had, which she is able to understand what’s going on, she
can assist her attorney, and she knows what her potential penalties are.” He testified,
“There’s really no question of it” and concluded Nash was competent to stand trial.
Musacco also reviewed Hoagland’s report. Musacco testified that the report “went
into minutia and details of very fine points of things, like academic functioning and
neuropsychology, which is perfect for a neuropsychological evaluation, but may be …
irrelevant to the issue of trial competency.” He observed that, in 20 years of doing
competency evaluations, he had never seen an evaluation even half as long as Hoagland’s
report. (Hoagland’s report was over 50 pages.)

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Musacco further opined that Nash’s scores from Hoagland’s testing were not
consistent with mild mental retardation. He testified that a person who has mental
retardation would have a global depression in intelligence (verbal, visual, motor,
attention), but Nash’s test results showed strengths and weaknesses, suggesting she had a
learning disability or possibly a head injury. He noted that Nash’s records showed that
she had been diagnosed with a learning disability, not mental retardation, through the
school system.
Standing by his opinion that Nash was competent to stand trial, Musacco
expanded on his explanation of what is required to find a person incompetent: “In order
to be found incompetent to stand trial, it has to be due to a mental disorder or a disease.
A learning disability would not be that type of mental disorder. Mental retardation
would. Schizophrenia could. But not a learning disability.” As part of an evaluation,
Musacco considers the person’s ability to communicate. In Nash’s case, “there was no
difficulty with that in terms of a give-and-take conversation.”
In cross-examination, Musacco indicated that an expressive language disorder
would be considered a learning disability. He did not test for such disorders, but Nash
did not appear to him to have an expressive or receptive language disorder. Musacco
thought her ability to communicate was commensurate with her level of intelligence. He
did not ask Nash whether she understood the proceedings in court beyond asking about
the roles of various court personnel. He did not ask her if she had any problems
concentrating.
At the time of the competence trial, witness Maribel Vega worked in the Kern
County Probation Department assigned to juvenile hall. She processed juveniles and
supervised them during program activities. Vega conducted Nash’s intake when she
entered juvenile hall in April 2010. Nash had been in custody since then, so Vega had
about two and one-half years’ experience observing and interacting with her.

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Nash had been placed on administrative restriction several times for manipulating
staff. Generally, this meant Nash tried to get away with rule violations if less
experienced staff were on duty. She also got in trouble for defiance and profanity toward
staff. “Junior staffing” is a rule violation in which a juvenile “that has been in custody
for a longer period of time … attempts to give instruction and ways to get around the
system and the program within the facility to other juveniles.” Nash had rule violations
for junior staffing. Vega testified that, in her interactions with Nash, Nash always
seemed to understand what Vega was talking about.
Nash was not allowed to go to classrooms with other children at juvenile hall. She
did her schoolwork by herself independently in her room. A teacher would tutor her in
her room for 30 minutes, three or four times per week.
Maria Lopez, a juvenile correctional officer at juvenile hall, had known Nash for
11 months. She observed that Nash would have a different tone depending on the staff.
She was very professional with Lopez, but she could be rude to other staff. Lopez had
counseled Nash on rules violations and never noticed that Nash did not understand what
she was talking about.

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C. Analysis
Nash was prosecuted as an adult, but she was 17 years old at the time of her jury
trial on competence. The questions she raises are (1) whether she was entitled to an
appointed expert who met the qualifications of rule 5.645(d) and (2) whether the trial
court erred by giving a definition of competence applicable to adults rather than the
standard described in Timothy J. and rule 5.645(d).17
1. The trial court was not required to appoint an examiner who met
the qualifications of rule 5.645(d) as a matter of due process
The procedures of Welfare and Institutions Code section 709 apply only “[d]uring
the pendency of any juvenile proceeding.” (Welf. & Inst. Code, § 709, subd. (a).)
Likewise, the procedures of rule 5.645(d) only apply to “a child who is the subject of
petition filed under [Welfare and Institutions Code] section 601 or 602.”
(Rule 5.645(d)(1).) In this case, there was no “juvenile proceeding” or “petition filed
under [Welfare and Institutions Code] section 601 or 602” because the district attorney
elected to charge Nash in adult criminal court. Accordingly, by their own terms, Welfare
and Institutions Code section 709 and rule 5.645(d) did not apply to Nash’s competency
trial in adult criminal court. (Cf. In re Christopher F., supra, 194 Cal.App.4th at p. 469
[juvenile proceedings are governed by provisions of the Welfare and Institutions Code
and Penal Code § 1369 does not apply].) Instead, the provisions of the Penal Code,
including section 1369, applied to Nash. (See In re Christopher F., supra, at p. 469 [on
its face, § 1369 applies to adult criminal proceedings].)
17 Consistent with Timothy J., rule 5.646(d)(1)(A) suggests that a child’s incompetence may
be the result of developmental immaturity or other condition, and a finding of mental disorder or
developmental disability is not required. The rule provides: “The court must appoint an expert
to examine the child to evaluate whether the child suffers from a mental disorder, developmental
disability, developmental immaturity, or other condition and, if so, whether the condition or
conditions impair the child’s competency.”

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Although not called for as a matter of statute, Nash claims she was entitled to the
“more specific rule 5.645 and the standard articulated in Timothy J.” as a matter of due
process. She acknowledges that her case was properly in the adult criminal court, but
asserts “the fact remains that [Nash] was a minor at the time she was evaluated for
competence to stand trial” and the “failure to appoint an expert who met the
qualifications to evaluate a minor for competency violated her rights under the federal
Constitution to due process and a fair trial, as well as her Eighth Amendment right to a
reliable guilt proceeding.” We disagree.
The federal due process clause requires states to “observe procedures adequate to
protect a defendant’s right not to be tried or convicted while incompetent to stand trial.”
(Drope, supra, 420 U.S. at p. 172.) Here, the trial court appointed an examiner with
experience in assessing competence. Nash presented her own expert and her juvenile
court attorney as witnesses, and her attorney cross-examined the prosecution’s witnesses.
We believe the procedures used were adequate to protect Nash’s rights.
Nash asserts that Musacco apparently lacked special expertise in evaluating
children, but she does not explain how this fact denied her due process in the
circumstances of her case. She does not, for example, point to any evidence showing that
minors who are 17 years old (as she was at the time of her competency trial) are
significantly developmentally or psychologically different from adults who are 18 years
old. Further, the question for the examiner and trier of fact—“Does the individual have
sufficient present ability to consult with his or her lawyer with a reasonable degree of
rational understanding and a rational, as well as a factual, understanding of the
proceedings?”—is the same whether the subject is an adult or a minor. (In re
Christopher F., supra, 194 Cal.App.4th at p. 468.)
Nash claims that the only examiner who met the “statutory qualifications”
(presumably referring to rule 5.645(d)) to evaluate Nash “as a minor” was Hoagland, but,
again, she has not explained how this rendered the competency trial inadequate.

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Hoagland’s opinion does not appear to be based on Nash’s age or age-related brain
development. We have found nothing in Hoagland’s testimony similar to the testimony
in Timothy J. from two experts that Dante’s brain had not fully developed.18 (Timothy J.,
supra, 150 Cal.App.4th at p. 861.) Nor do we see any citation to “literature” supporting a
theory that 17 year olds are unlikely to be competent to stand trial for some biological
reason. (Cf. id. at p. 860.) On the record before us, we cannot say a court-appointed
examiner who met the requirements of rule 5.645(d) was required in this case as a matter
of due process.
For her position, Nash cites recent United States Supreme Court cases dealing
with the punishment of defendants who were minors when they committed their crimes.
(See Miller v. Alabama (2012) 567 U.S. ___ , ___ [132 S.Ct. 2455, 2475] (Miller)
[mandatory LWOP for juveniles without consideration of their age, age-related
characteristics, and nature of their crimes violates Eighth Amendment’s principle of
proportionality]; Graham v. Florida (2010) 560 U.S. 48, 82 (Graham) [Eighth
Amendment prohibits imposition of LWOP for a juvenile offender who did not commit
homicide]; Roper v. Simmons (2005) 543 U.S. 551, 578 (Roper) [Eighth and Fourteenth
Amendments prohibit imposition of the death penalty for offenders who were under
18 years old at time of their offenses].)
In these cases, the high court recognized that “children are constitutionally
different from adults for purposes of sentencing.” (Miller, supra, 567 U.S. at p. ___ [132
S.Ct. at p. 2464], italics added.) In the context of punishment, the high court held that
juveniles are less deserving of the most severe punishments because they have
“diminished culpability and greater prospects for reform.” (Id. at p. ___ [ibid.].) The
18 As we have described, Hoagland’s primary concern about Nash was her verbal
impairment. On cross-examination, he was asked what the treatment would be for Nash’s
cognitive issues. Hoagland answered that she would require a variety of treatment and also
observed, “You couldn’t fix retardation.” Nothing in his response suggested that growing older
could improve Nash’s conditions.

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court relied, in part, on “‘psychology and brain science.’” (Id. at p. ___ [132 S.Ct. at
pp. 2464–2465].)19
These cases, however, have nothing to do with competence determinations for
minors. In Miller, Roper, and Graham, the high court did not consider what procedures
are adequate to protect a minor’s right not to be tried while she is incompetent to stand
trial. To the contrary, the cases all involved minors who were found guilty of crimes and
sentenced to death or LWOP, circumstances that presuppose the minors were competent
to stand trial. As a result, these cases are not particularly relevant to Nash’s claim, and
they certainly do not suggest that the appointment of an expert who met the qualifications
of rule 5.645(d) was required in this case as a matter of due process.
We do not believe Timothy J. supports Nash’s claim either for several reasons.
First, Nash contends that Timothy J. requires that the court apply rule 5.645 as a
matter of due process simply because she was under the age of 18. Timothy J. does not
support that contention. The opinion specifically qualifies its holding by stating that “we
do not hold that age alone may be the basis for a finding of incompetency.” (Timothy J.,
supra, 150 Cal.App.4th at p. 861.)
19 In Miller, the court described the scientific research it relied on in Roper and Graham:
“Our decisions rested not only on common sense—on what ‘any parent
knows’—but on science and social science as well. [Citation.] In Roper, we cited
studies showing that ‘“[o]nly a relatively small proportion of adolescents”’ who
engage in illegal activity ‘“develop entrenched patterns of problem behavior.”’
[Citation.] And in Graham, we noted that ‘developments in psychology and brain
science continue to show fundamental differences between juvenile and adult
minds’—for example, in ‘parts of the brain involved in behavior control.’
[Citation.] We reasoned that those findings— of transient rashness, proclivity for
risk, and inability to assess consequences—both lessened a child’s ‘moral
culpability’ and enhanced the prospect that, as the years go by and neurological
development occurs, his ‘“deficiencies will be reformed.”’ [Citation.]” (Miller,
supra, 567 U.S. at p. ___ [132 S.Ct. at pp. 2464–2465], fn. omitted.)

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Second, the Court of Appeal in Timothy J. was asked to interpret a rule of court in
a juvenile proceeding. It was not asked to identify constitutionally required procedures
for determining competence for a minor charged as an adult.
Third, to the extent Timothy J. does suggest that due process may require treating
young children differently from adults in competency determinations, this does not help
Nash because she was not a young child at the time of her competency trial. Nash was
17 years old at the time of her competency trial. The minor in Timothy J. was 11 years
old. As we have discussed, the Timothy J. court presumed that a normal adult would be
competent to stand trial, but concluded that this presumption may not be appropriate for
“a young child whose developmental immaturity may result in trial incompetence despite
the absence of any underlying mental or developmental abnormality.” (Timothy J.,
supra, 150 Cal.App.4th at p. 860, italics added.) The court cited expert evidence that
significant development occurs in the brain at puberty around the ages of 11 to 13. The
court also noted that there was “no significant difference between an incompetent adult
who functions mentally at the level of a 10 or 11 year old due to a developmental
disability and that of a normal 11 year old whose mental development and capacity is
likewise not equal to that of a normal adult.” (Id. at p. 861.) Thus, the court focused on
the limited brain development and cognitive ability of young children up to around
ages 11 to 13.
Arguably, Timothy J. might be helpful to Nash if she had been a young child at the
time of the competency evaluation and trial, but she was not.20 When she met with
Musacco, Nash was less than five months shy of her 18th birthday. The Court of Appeal
20 While the Timothy J. court focused on children from ages 11 to 13, the court did cite a
study showing that 19 percent of 14 and 15 year olds performed at the level of mentally ill
incompetent adults. (Timothy J., supra, 150 Cal.App.4th at p. 861, fn. 14.) The court made no
mention of the performance of 16 and 17 year olds, however. At best, Nash could argue that
Timothy J. suggests that children up to age 15 should not be treated like adults for purposes of
competency determinations.

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in Timothy J. did not consider older minors such as Nash. (And, as we have mentioned,
Nash did not present evidence suggesting that 17-year-old minors are different from 18-
year-old adults in any way relevant to competence determinations.) For this reason, we
do not read Timothy J. as support for Nash’s claim that due process required the trial
court to employ rule 5.645(d)—a rule that, on its face, did not apply—solely because she
was 17 years old at the time of her competency trial.
Finally, in her reply brief, Nash notes that the United States Supreme Court has
determined what constitutes cruel and unusual punishment based on “the ‘evolving
standards of decency that mark the progress of a maturing society.’” (Thompson v.
Oklahoma (1988) 487 U.S. 815, 821.) She urges this court to decide her due process
claim based on the same notion of evolving standards of decency. This argument is
unavailing because she has offered no evidence or case law showing that evolving
standards of decency require the application of rule 5.645(d) in a competency trial
involving a 17-year-old minor tried as an adult.
2. The jury instruction on competence did not violate due process
The trial court instructed the jury on competence in relevant part:
“You must decide whether [Nash] is mentally competent to stand trial.
That is the only purpose of this proceeding.…
“[Nash] is mentally competent to stand trial if she can do all of the
following: Number one, understand the nature and purpose of the criminal
proceedings against her; number two, assist in a rational manner her
attorney in presenting the defense; and three, understand her own status and
condition in the criminal proceeding.
“The law presumes that a defendant is mentally competent. In order
to overcome this presumption, the defendant must prove that it is more
likely than not that the defendant is now mentally [in]competent because of
a mental disorder or developmental disability.
“A developmental disability is a disability that begins before a
person is 18 years old and continues or is expected to continue for an

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indefinite period of time. It must be a substantial handicap and does not
include other handicap conditions that are solely physical in nature.
“Examples of developmental disabilities include mental retardation,
cerebral palsy, epilepsy, autism, and conditions closely related to mental
retardation or requiring treatment, similar to that required for mentally
retarded individuals.”
Nash does not dispute that this is a correct statement of the law under
sections 1367 through 1369. Her trial counsel neither objected to nor requested a
different instruction. Nonetheless, she argues the instruction violated due process in her
case because it provided that incompetence must be because of “a mental disorder or
developmental disability” and did not allow incompetence to be based on developmental
immaturity. She relies solely on Timothy J., supra, 150 Cal.App.4th at pages 861–862.
As we have explained, however, Timothy J. does not support Nash’s argument
because she was not a young child at the time of her competency trial. The Timothy J.
court reasoned:
“As a matter of law and logic, an adult’s incompetence to stand trial
must arise from a mental disorder or developmental disability that limits his
or her ability to understand the nature of the proceedings and to assist
counsel. [Citation.] The same may not be said of a young child whose
developmental immaturity may result in trial incompetence despite the
absence of any underlying mental or developmental abnormality.”
(Timothy J., supra, 150 Cal.App.4th at p. 860.)
The evidence in the Timothy J. case focused on children who had not yet reached
puberty, but also included studies of children up to 15 years old. (Timothy J., supra, 150
Cal.App.4th at pp. 854, 860–861.)
Nothing in Timothy J. suggests that a 17-year-old is likely to be incompetent
because of developmental immaturity without any underlying disorder. Nash did not
present any evidence regarding the brain development of older minors such as herself.
Dr. Hoagland did not testify that a 17 year old is developmentally different from an

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18 year old or that Nash’s brain was not fully developed. Thus, Nash did not present
evidence that even implicates a due process analysis under Timothy J.
Dr. Hoagland applied the adult standard in concluding that Nash was incompetent.
He testified that her incompetence was due to multiple mental disorders. The People’s
expert concluded otherwise. Both sides also presented lay witness testimony about her
competence. The jury considered all of the evidence and found that she was competent.
The record in this case does not require us to decide whether the jury should have
received an instruction on incompetence that mirrored Welfare and Institutions Code
section 709 because Nash didn’t object to the Penal Code section 1367 instruction, didn’t
request a different instruction, her own expert used the section 1367 definition and no
Timothy J. evidence was introduced. On the record before us, we cannot say the jury
instruction given was not “adequate to protect [Nash’s] right not to be tried or convicted
while incompetent to stand trial.” (Drope, supra, 420 U.S. at p. 172.)21
We have rejected Nash’s claim that age alone mandates that she receive the
benefit of Welfare and Institutions Code section 709’s definition of incompetence. We
likewise reject the Attorney General’s contention that the competence of any juvenile
tried as an adult must always be adjudicated according to the definitions and procedures
of the adult courts. While this contention finds support in the statutory language, it
doesn’t necessarily answer due process concerns in every case. Accordingly, we do not
hold that the due process clause will never entitle juveniles tried as adults to an
incompetence instruction that is broader than Penal Code section 1367, such as Welfare
and Institutions Code section 709. Instead, we hold that on this record the jury
instruction given did not violate Nash’s due process rights.
21 Nash has called our attention to the recent California Supreme Court case decision of In
re R.V., supra, 61 Cal.4th 181, but that decision did not address the issue presented here, namely,
the manner in which a minor’s competency is to be determined when tried as an adult.

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Finally, we deem any instructional error harmless. Since Dr. Hoagland utilized
the adult standard in reaching his opinion, which the jury found unpersuasive, we believe
beyond a reasonable doubt the same result would have occurred even if a broader jury
instruction on incompetence (e.g., Welf. & Inst. Code, § 709) had been given. (Chapman
v. California (1967) 386 U.S. 18, 24; People v. Huggins (2006) 38 Cal.4th 175, 193–194
[declines to resolve question whether Chapman or People v. Watson (1956) 46 Cal.2d
818 standard of prejudice applies to error in competency instruction].)
II. Admission of Nash’s statements to law enforcement officers
After Nash was taken into custody, she was interviewed by Balasis and Detective
Kavin Brewer, and the interview was videotaped. Balasis read Nash her Miranda22
rights, and she does not dispute that she responded affirmatively when asked if she
understood her rights and then voluntarily waived her rights.
After answering questions for about 35 minutes, Nash stated that she wanted her
sister and that she did not “want to do this anymore,” but the questioning continued. The
detectives ended the interview about 12 minutes later, when Nash said she wanted her
lawyer. Nash contends her request for her sister and her statement that she did not want
to do this anymore constituted a clear invocation of her right to terminate the interview
and, as a result, evidence of her subsequent statements to the detectives should have been
suppressed. In the alternative, Nash asserts the statements she made after she said she did
not want to do this anymore were involuntary because the detectives employed trickery.
We conclude there was no error in admitting evidence of Nash’s statements at trial.
A. Facts
1. Nash’s interview
Balasis advised Nash of her Miranda rights and then asked her background
information such as where she was living, her age, and her grade in school. In response
22 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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to a question about her full name, Nash stated her name and then asked, “Where’d you
guys take my sister?” Balasis told her Angelique was in the other part of the building and
continued asking questions.
Balasis told Nash that they had just finished talking with Angelique and “she
pretty much told us everything that happened.” He said they now wanted to get Nash’s
version of what happened. Nash began by telling Balasis she was watching television
with Angelique. Moses came and told them they needed to go to Matthew’s house to go
smoke some weed. Nash said they were all knocking on doors asking for Matthew. She
went to a house with Moses, and “he said something about using the phone.” Nash told
the detectives, “[T]he next thing you know … I heard … (sound) … and then I got
scared.” Nash demonstrated the sound she heard by making a fist with her right hand and
punching her left palm.
Balasis then asked to go through what happened “detail by detail.” Nash said she
did not remember which doors she knocked on. Balasis asked whether she remembered a
lady with a dog, and Nash responded affirmatively. Nash said she could not remember
that day because it was hard. She told the detectives, “[W]e didn’t know this was gonna
happen,” “I swear we didn’t,” and “I’m so sorry.” She began to cry again.
Later in the interview, Nash said that Moses went up to the victim’s house while
she and Angelique waited near a truck parked on the street. Moses returned and told her
it was Matthew’s house, so Nash went with him to the back door. She thought the victim
was Matthew’s grandma. She said she was going to use the telephone. She picked up the
phone and put it back down. Nash told the detectives she heard Moses say, “They’re
coming,” and then she heard a sound like Moses hit the victim. Nash ran and got
Angelique.
Nash said that when she went to the back door with Moses, the door was open but
the screen door was closed. Moses knocked on the door and the victim answered. Nash
asked if she could use the phone, and the victim said yes. Balasis asked whether the

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victim actually opened the door for her and Moses to go in the house, and Nash began to
cry again. She said she heard “maybe two or three” hits or smacking sounds but she did
not see Moses hit the victim. Balasis asked what the victim was doing, and Nash
responded, “Just screaming.” Nash said: “She was like, ‘Ahh, help.’ And then I got so
scared. And I didn’t want to call the police ’cause I’m on the run. And I didn’t want to
get caught. So … I should have just called the police.”
Brewer asked Nash if she remembered asking for Erika. She said they “were
gonna go to Erika’s but … turned out to be Matthew.” About 29 minutes into the
interview, Brewer confronted Nash with information (from Patterson and Gage) that they
were not looking for Matthew but were looking for a house to break into. Nash denied
this.
Balasis urged Nash to be “a hundred percent honest” because if she were not
truthful about some things, “it makes it look like you’re lying about other things.” The
questioning continued:
“Balasis: [E]ven if it might not be a really good thing for you … it
makes the rest of your story believable because we can prove
what happened there. You know what I mean?
“Nash: Yeah.
“Balasis: And we can prove what happened here.
“Nash: Right.
“Balasis: So, you know, that’s why it’s important that you’re honest
about every detail. And not leave out even a little … the,
stuff like this that, that … may make you look a little bit bad.
“Nash: (Inaudible.)
“Balasis: Okay? Just because you guys were … doing that, doesn’t
mean that you wanted this thing to happen to this woman[.]
Okay[?] It’s two separate dif- … two, two different things,
okay?

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“Nash: But we didn’t … we didn’t go for break … breaking. We
didn’t … we didn’t go to break in anybody houses. I’m
telling you—”
Balasis then told Nash that was not what Angelique told “people over there are on
Center Street,” including Patterson. Balasis said that Angelique told people they were
looking for a house “to get money or weed from.” The interview continued:
“Nash: So who told you this? I want to know who told you this.
Because—
“Balasis: [Angelique] told me this … just now.
“Nash: She told you we were going to go break in some houses?
“Balasis: Yes. Not at first, but when I told her that Titi [Patterson] had
already told us … she told me. She broke down and told me.
Okay? Because she knows … that the most important thing
to do is be honest in this whole thing. Because … if you’re
lying about this … how do I know that you’re not lying about
the other part? Okay?
“Nash: Well—
“Balasis: How do I know that you’re not the one that hit the lady?”
Nash insisted that she and her sister did not hit the victim, only Moses did.
She said, “All … all I heard was a smack … and then I … like I told you, I … got
scared … ran in … through the front door [¶] … [¶] … through the front door to
go get my sister.” Balasis responded that he wanted to know the real reason they
were out in the neighborhood that afternoon and again suggested they wanted to
steal.
“Balasis: … I understand that part of it … but I … what I want to get
back to is the real reason why you guys were in this
neighborhood. Okay? I need to hear it from you. You guys
wanted to, to get some stuff, is that right?
“Nash: Not to get weed.
“Balasis: What … what was it for?

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“Nash: Just … I …
“Balasis: To … some cash or something like that?
“Nash: … I was just in it. I was just in it. I don’t … I just went with
him.
“Balasis: Okay.
“Brewer: Okay.
“Balasis: (Inaudible).
“Brewer: What was [Moses] looking for? Was he trying to just get
some TVs or whatever he could get to sell for weed?
“Balasis: Or cash or what?
“Nash: I don’t know.
“Balasis: [Nash], I, I … listen.
“Brewer: You guys all left there together, [Nash]. You do … you, you
do know, okay?”
At this point, about 35 minutes into the interview, Nash began to sob again. She
put her hands on top of her head and leaned forward, putting her elbows on the table in
front of her and hiding her face with her arms. The questioning continued:
“Balasis: And like I said … uh, we’ve already, we’ve already talked to
[Angelique]. Okay? And we’re gonna talk to David. Okay?
“Nash: I want my sister. I don’t want to do this anymore.
“Balasis: Well yeah, I … I don’t … I don’t want to do it anymore
either. I want to get it … I want to get it all behind us.
“Nash: Oh, no. I didn’t do it.
“Brewer: [Nash], listen.
“Balasis: I understand.” (Italics added.)
When Nash said she wanted her sister and did not want to do this anymore, she sat
up and covered her face with her hands. She was still crying. The detectives continued

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questioning her. Nash took a tissue and stopped crying. Brewer said, “If you guys …
went over there to do one thing … and [Moses] did something stupid .… [¶] … [¶] …
you need to tell us, okay?” Balasis said, if this was the case, “you need to let us know
now.” Nash responded, “But we’re gonna get in trouble,” and pointed to herself.23 The
interview continued:
“Balasis: We need to know what your part of it was. If you went over
there to plan and kill her …
“Nash: We didn’t …
“Balasis: [W]e need to hear that. Or if you went over there because
we’re gonna go … get into the house and maybe see if we can
get some cash so we can get some weed and [Moses] went off
and did something stupid, that’s what we need to hear from
you right now. Not this stuff that we went to go find
Matthew, who doesn’t exist … and Erika who doesn’t exist.
“Nash: (Inaudible) it’s true, it’s true.
“Balasis: That part …
“Nash: Everything (inaudible).
“Balasis: [T]hat part’s not true. I already know that part’s not true.
“Nash: No, not that part but I’m telling you about what you just said.
“Balasis: That’s true[?]
“Nash: Yes.
“Balasis: Okay. So what I just said … you guys were going to get in
the houses to get cash … and he did something stupid[?]
That’s true[?] That’s true[?] Okay.”
23 We note that the transcript of the interview reads, “So we’re gonna get in trouble?”
However, we have watched the recording of the interview and it looks and sounds like Nash
made a declarative statement with an emphasis on “we’re,” her intonation did not suggest a
question, and she began her statement “But,” not “So.”

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Nash agreed with Balasis that the plan was to knock and make sure nobody
was home.24 She agreed that she was not expecting the victim to be in the house
and the victim surprised her. Nash said that Moses went up to the victim’s house
first and knocked on the door. He returned and said, “it was okay,” meaning
nobody was there. Then Nash went into the house with Moses. Moses asked to
use the phone. Nash said she really did need to use the telephone and intended to
do so. She picked up the phone, and then she heard a smack. She went outside to
get her sister. Nash went back into the house and the victim was in a different
place. She said Moses must have dragged the victim, but she did not see him do it.
Nash told the detectives she did not touch the victim at all. She said the
victim said, “‘Help,’” and moaned. Brewer asked if Moses ever talked about
moving the victim or putting her in a closet, and Nash said no. Balasis asked if
anybody talked about putting her in closet. Nash responded, “I want my lawyer.”
Balasis said, “Okay,” and the questioning stopped. Nash asked for her lawyer
about 46 minutes after the detectives entered the interview room and about
12 minutes after she said she wanted her sister and did not “want to do this
anymore.”
2. Motion to suppress
Before the joint trial, Nash moved to exclude all statements she made to law
enforcement officials on the grounds that her statements were obtained involuntarily and
in violation of her Miranda rights. On August 21, 2012, the trial court held an
evidentiary hearing on Nash’s motion. A DVD and transcript of Nash’s interview were
provided, and Balasis was called to testify. Nash’s attorney also indicated that he
planned to call psychologist Hoagland to testify regarding Nash’s cognitive deficits and
24 Again, we note that our understanding of the interview differs from the transcript, which
provides that Nash’s response to Balasis’s questions was “(Inaudible).” We hear Nash indicate
agreement with Balasis twice.

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verbal disability. Later in the hearing, however, he informed the court that he would not
call Hoagland.
The court watched and listened to portions of the interview more than once to
determine whether Nash appeared to understand her Miranda rights. After viewing the
beginning of the interview, the court stated, “[I]t certainly appears, at least at this point,
absent any testimony from a healthcare professional … that, in my estimation, it’s free
and voluntary and non-violative of Miranda.” (Italics added.)25
During cross-examination of Balasis, Nash’s attorney asked him, “Is there a
reason why you didn’t ask her what do you mean by ‘I don’t want to do this anymore’?”
Balasis responded, “No, there’s not.”
Nash’s attorney argued that her statement, “I don’t want to do this anymore,” was
an invocation of her Miranda rights and everything she said after that should be
suppressed. The prosecutor countered that Nash’s statement was connected to her
request for her sister and was not an unambiguous invocation of her right to remain silent.
Further, he argued, “[W]hen she really doesn’t want to talk anymore she clearly and
unequivocally and unambiguously invokes her rights by saying I want my lawyer.”
Denying Nash’s motion to suppress any part of the interview, the court stated:
“There’s no unambiguous request until the end of the interview where it terminates to
request counsel. The request to see her sister, she voluntarily talks right after that. Find
no violation of Miranda.” (Italics added.)
B. Analysis
1. Nash did not invoke her right to remain silent by asking for her
sister and stating, “I don’t want to do this anymore”
“The Fifth Amendment to the United States Constitution, which applies to the
states by virtue of the Fourteenth Amendment, provides that no person may be compelled
25 At the point it made this ruling, the court understood that Nash was going to call
Hoagland as a witness, but no healthcare professional testified at the hearing.

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to be a witness against himself or herself. [Citations.] In Miranda, supra, 384 U.S. 436,
the United States Supreme Court ‘adopted a set of prophylactic measures to protect a
suspect’s Fifth Amendment right from the “inherently compelling pressures” of custodial
interrogation.’ [Citation.] Pursuant to Miranda, a suspect ‘must be warned prior to any
questioning that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior to any questioning if
he so desires.’ [Citation.]” (People v. Linton (2013) 56 Cal.4th 1146, 1170–1171.)
“It is well settled, however, that after the familiar Miranda advisements are given,
a suspect can waive his or her constitutional rights.” (People v. Linton, supra, 56 Cal.4th
at p. 1171.)
“Determining the validity of a Miranda rights waiver requires ‘an evaluation of
the defendant’s state of mind’ [citation] and ‘inquiry into all the circumstances
surrounding the interrogation’ [citation].” (People v. Nelson (2012) 53 Cal.4th 367, 375
(Nelson).) “When a juvenile’s waiver is at issue, consideration must be given to factors
such as ‘the juvenile’s age, experience, education, background, and intelligence, and …
whether he has the capacity to understand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those rights.’ [Citations.]” (Ibid.)
In reviewing Miranda issues on appeal, we accept the trial court’s determination
of disputed facts if supported by substantial evidence, and we independently decide
whether the challenged statements were obtained in violation of Miranda. (People v.
Lessie (2010) 47 Cal.4th 1152, 1169.)
Here, the trial court determined that, after Balasis advised her of her Miranda
rights, Nash waived her rights and voluntarily answered the detectives’ questions. Nash
does not dispute this determination, which is supported by the record. Instead, Nash
contends that, after waiving her rights and voluntarily submitting to questioning, she

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invoked her right to silence when she said, “I want my sister. I don’t want to do this
anymore.”
In Nelson, our Supreme Court specifically addressed how to determine whether a
juvenile suspect has invoked her Miranda rights after initially waiving those rights. The
court held, “[O]nce a juvenile suspect has made a valid waiver of the Miranda rights, any
subsequent assertion of the right to counsel or right to silence during questioning must be
articulated sufficiently clearly that a reasonable police officer in the circumstances would
understand the statement to be an invocation of such rights.” (Nelson, supra, 53 Cal.4th
at pp. 379–380.)
The court explained, “[A]fter a suspect makes a valid waiver of the Miranda
rights, the need for effective law enforcement weighs in favor of a bright-line rule that
allows officers to continue questioning unless the suspect clearly invokes the right to
counsel or right to silence.” (Nelson, supra, 53 Cal.4th at p. 377.) Therefore, after a
suspect waives her Miranda rights, her subsequent invocation of those rights must be
“unambiguous and unequivocal,” and further, questioning officers have no duty to clarify
ambiguous statements. (Ibid.; Davis v. United States (1994) 512 U.S. 452, 459, 461.)
In Nelson, the defendant, who was 15 years old, was convicted of the murder of a
72-year-old neighbor and five counts of first degree burglary. On appeal, he challenged
the admission of his statements made during a custodial interrogation. The defendant did
not dispute that he initially waived his Miranda rights. He argued, however, that he
invoked his Miranda rights postwaiver by asking several times to speak to his mother and
by making certain other statements. (Nelson, supra, 53 Cal.4th at p. 371.)
During questioning, the defendant admitted that he entered the victim’s house and
took jewelry and her purse, but he denied responsibility for her death. About three and
one-half hours into the questioning, the investigators asked if he wanted to take a
polygraph test, and he asked to call his mother. (Nelson, supra, 53 Cal.4th at p. 372.)
The investigators continued their questioning, and the defendant continued to answer. He

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made additional requests to call his mother and was allowed to call. He did not reach his
mother, but he spoke to his grandmother and brother. At one point, the defendant
“indicated he wanted the investigators to leave him alone.” (Id. at p. 373.) At other
points, he declined to take a polygraph test because his relatives had told him they did not
want him to do anything until a lawyer or his mother arrived. Eventually, the defendant
wrote a statement admitting he killed his neighbor by striking her with a hammer. (Ibid.)
The trial court denied the defendant’s motion to exclude his statements. (Nelson,
supra, 53 Cal.4th at p. 374.) It found that whenever the defendant asked to speak to his
mother, he did so because he wanted to tell her what was going on and to ask her what he
should do. The trial court also noted that, although he indicated he did not want to take a
polygraph test without his mother or a lawyer, he “‘continued to consent to voluntarily
talk’ to the authorities on other topics.” (Id. at p. 381.) After reviewing the videotape
and transcript of the interview, the Supreme Court concluded the trial court’s ruling was
both legally and factually supported. (Id. at pp. 381–382)
The Supreme Court observed, “Although [the] defendant became increasingly
upset during the interview, and quieter toward the end, the questioning properly
continued because [the] defendant never communicated an intent to stop the interview
altogether.” (Nelson, supra, 53 Cal.4th at p. 382.) Even though the defendant said that
his relatives “told him not to take a polygraph test ‘until my mom or a lawyer is here,’
and that those family members ‘don’t want me to do anything until a lawyer or my mom
is here,’” the court determined that, taken in context, these statements were not an
unambiguous request to stop all questioning. (Ibid.)
In addition, the court concluded the defendant “did not unambiguously assert his
right to silence when he told the investigators … he did not care who might be caught for
… murder, ‘as long as you guys leave me alone.’” (Nelson, supra, 53 Cal.4th at p. 383.)
This was because “[a] reasonable officer in the circumstances could view that statement
as an expression of frustration with the investigators’ repeated refusal to accept his denial

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of guilt for the murder,” rather than an invocation of the right to silence. (Ibid.) In
reaching this conclusion, the court cited People v. Williams (2010) 49 Cal.4th 405
(Williams) and People v. Jennings (1988) 46 Cal.3d 963 (Jennings).
In Williams, an officer repeatedly asked the defendant about the murder victim,
and the defendant repeatedly answered that he did not know her. The officer persisted,
asking what the defendant did with the victim. The defendant responded, “‘I don’t want
to talk about it.’” (Williams, supra, 49 Cal.4th at p. 433, italics omitted.) The Supreme
Court held this was not an invocation of the right to remain silent. The court explained:
“‘A defendant has not invoked his or her right to silence when the
defendant’s statements were merely expressions of passing frustration or
animosity toward the officers, or amounted only to a refusal to discuss a
particular subject covered by the questioning.’ [Citations.] In our view, the
statement … —‘I don’t want to talk about it’—was an expression of [the]
defendant’s frustration with [the officer’s] failure to accept [the]
defendant’s repeated insistence that he was not acquainted with the victim
as proof that he had not encountered her on the night of the crime, rather
than an unambiguous invocation of the right to remain silent. [Citations.]
A reasonable officer could interpret [the] defendant’s statement as
comprising part of his denial of any knowledge concerning the crime or the
victim, rather than an effort to terminate the interrogation. [Citation.]”
(Williams, supra, 49 Cal.4th at p. 434.)
In Jennings, the defendant said to an officer during an interrogation: “‘I’m not
going to talk,’” and, “‘You, nothing personal man, but I don’t like you. You’re scaring
the living shit out of me.… That’s it. I shut up.’” (Jennings, supra, 46 Cal.3d at p. 977,
fn. omitted.) After reviewing a recording of the interrogation, the Supreme Court
concluded the defendant’s statements were not an invocation of the right to silence:
“Viewing the tape, observing [the] defendant’s demeanor before, during,
and after the statements, and considering the context in which [the]
defendant made the statements on which he relies here, we conclude that
the statements reflect only momentary frustration and animosity toward
[the questioning officer]. It is evident that [the] defendant believed [the
officer] was misconstruing [the] defendant’s statements and persisting in
his attempt to get [the] defendant to recall details about his whereabouts

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[after he already said he could not recall] .…” (Jennings, supra, 46 Cal.3d
at p. 978.)
Returning to our case, the trial court found no unambiguous invocation of rights
until Nash asked for her lawyer. The court noted that, after requesting to see her sister,
Nash voluntarily talked “right after that.” We have reviewed the videotape and
transcript, and we agree with the trial court’s ruling. Nash’s request for her sister, like
the defendant’s request for his mother in Nelson, was not a clear invocation of the right to
remain silent or the right to counsel. Her statement, “I don’t want to do this anymore”
was not an unambiguous invocation of the right to remain silent either. Viewed in
context, a reasonable officer could understand that Nash was expressing momentary
frustration because the detectives persisted in questioning her about her intent when she
went into Session’s house, and they refused to accept her denial of any intent to steal.
(See Nelson, supra, 53 Cal.4th at p. 383.) Her statement “I don’t want to do this
anymore” could be construed as “I don’t want to lie anymore,” and, in fact, Nash did
admit they were looking for an empty house to steal from soon afterwards. Alternatively,
a reasonable officer could understand Nash’s statement together with her request for her
sister to mean she wanted to confer with her sister to get their story straight. The
possibility of more than one reasonable interpretation of Nash’s conduct bolsters our
conclusion that, in context, Nash’s statement, “I don’t want to do this anymore” was not
an objectively unambiguous invocation of her Miranda rights.
Nash argues the trial court should have concluded that her statement that she did
not want to do this anymore “was her way of saying she wanted the interview to end.”
(Italics added.) But Nash’s subjective intent is not relevant to the determination whether
she made an unambiguous postwaiver invocation of the right to remain silent. (Nelson,
supra, 53 Cal.4th at p. 377 [“suspect’s subjective desire” not relevant to determination
whether suspect made clear postwaiver invocation of Miranda rights].) Further, as the
trial court noted, Nash continued to talk to the detectives after making the statement that

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she did not want to do this anymore, and she was able to invoke her Miranda rights
clearly when she later said, “I want my lawyer.” For these reasons, Nash’s argument
fails.
2. Nash’s statements were not involuntary
Next, Nash claims that the statements she made to the detectives after she said, “I
don’t want to do this anymore” were involuntary because the detectives used “trickery”
to obtain her statements. Nash complains that the detectives urged her to tell the truth
“[e]ven if it might be a little bit bad” for her and that Balasis told her there was a
difference between stealing and “want[ing] this thing to happen to this woman.”
“A minor has a Fifth Amendment privilege against self-incrimination, which
precludes admission of a minor’s confession obtained without the minor’s voluntary,
intelligent, and knowledgeable waiver of his or her constitutional rights. [Citations.] To
determine whether a minor’s confession is voluntary, a court must look at the totality of
circumstances, including the minor’s age, intelligence, education, experience, and
capacity to understand the meaning and consequences of the given statement.
[Citations.]” (People v. Lewis (2001) 26 Cal.4th 334, 383.) However, “‘[t]he decision to
confess cannot be of itself an indicium of involuntariness in the complete absence of
coercive circumstances.’ [Citation.]” (Ibid., italics added.) “A court should look at
whether the minor ‘was exposed to any form of coercion, threats, or promises of any
kind, trickery or intimidation, or that he was questioned or prompted by … anyone else to
change his mind.’ [Citation.]” (Ibid., citing In re Frank C. (1982) 138 Cal.App.3d 708,
714 (Frank C.).)
We review “the evidence independently to determine whether a defendant’s
confession was voluntary, but will uphold the trial court’s findings of the circumstances
surrounding the confession if supported by substantial evidence.” (People v. Lewis,
supra, 26 Cal.4th at p. 383.)

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Nash contends that Balasis knew “he was maneuvering [her] into exposing herself
to prosecution for first degree felony murder if he could get her to admit she knew
[Moses] was looking for houses to burglarize.” Nash offers no authority for the
proposition that seeking this kind of information constitutes coercion. Nor does she offer
any support for her claim that urging her to tell the truth or stating that an intent to steal is
different from an intent to kill amounts to trickery. Mere advice or exhortation by law
enforcement to tell the truth, unaccompanied by any threat or a promise, does not render
a subsequent confession involuntary. (In re Shawn D. (1993) 20 Cal.App.4th 200, 210.)
Even deceptive comments do not necessarily render a suspect’s statement involuntary.
(Williams, supra, 49 Cal.4th at p. 443.) “‘“The courts have prohibited only those
psychological ploys which, under all the circumstances, are so coercive that they tend to
produce a statement that is both involuntary and unreliable.”’ [Citation.]” (Ibid.) In our
review of the videotape of the interview, we see no evidence that the circumstances of the
interview or the detectives’ conduct was coercive.
In her reply brief, Nash emphasizes that she was crying when she stated that she
wanted her sister and that she did not want to do this anymore. Viewed in context,
however, this does not demonstrate that her subsequent statements were coerced. Nash
cried at early points in the interview as well, and each time—including after she said did
not want to do this anymore—she was able to stop crying, compose herself, and continue
to answer questions.
In Frank C., the minor argued that his confession was coerced because he was left
in a detention room for an hour without food or drink, and this “constituted ‘sufficient
pressure to induce’ him to give whatever information the officer desired.” (Frank C.,
supra, 138 Cal.App.3d at p. 713.) The appellate court rejected this argument as sheer
speculation, given that the minor did not take the stand and offered no evidence regarding
the voluntariness of his confession. (Ibid.) Similarly, in the present case, Nash did not
testify that she felt coerced, and no mental health expert offered any opinion that her

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statements were coerced. Accordingly, on the record before us, we reject Nash’s
argument that her statements should have been suppressed because they were made
involuntarily.
III. Special circumstance finding
The prosecution’s theory was that Moses, Nash, and Angelique were guilty of first
degree felony murder because they all participated in a burglary during which Session
was killed. (§ 189.) The prosecutor argued Moses was the actual killer, and Nash and
Angelique were liable for felony murder because they aided and abetted the underlying
burglary. The jury found Nash guilty of first degree murder.
The jury also found the burglary special circumstance true. (§ 190.2,
subd. (a)(17)(G).) Because Nash was not the actual killer, to establish the special
circumstance, the prosecution was required to prove she aided and abetted Moses in the
burglary with reckless indifference to human life and as a major participant. (Id.,
subd. (d).)
The parties filed supplemental briefs addressing the special circumstance finding
in light of the Banks decision, and Nash contends the special circumstance finding must
be vacated because there was no substantial evidence that she harbored the requisite state
of mind of reckless indifference to human life or was a major participant.26 We
subsequently requested the parties file supplemental letter briefs addressing whether,
under the California Supreme Court’s recent decision in People v. Clark (2016) 63
Cal.4th 522 (Clark), there is substantial evidence supporting the jury’s finding that Nash
acted with “reckless indifference to human life.” (§ 190.2, subd. (d).) We now
26 Nash did not originally challenge the jury’s implied finding that she was a “major
participant” in the underlying burglary. (§ 190.2, subd. (d).) She argued only that there was
insufficient evidence for the jury to find that she acted with “reckless indifference to human life,”
claiming the evidence did not show that she “subjectively appreciated” (ibid.) there was the
possibility of grave danger to human life when she entered Mrs. Session’s house believing that
no one was home. Nash now advances both arguments.

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reconsider our opinion through the lens of Banks and Clark and conclude these decisions
compel reversal of the special circumstance finding on the ground that the evidence is
insufficient to support the jury’s finding Nash was recklessly indifferent to human life.
Given this conclusion, we do not reach the issue of whether she was a major participant.
(Clark, supra, at p. 614.)
A. Standard of review
In assessing a claim of insufficiency of the evidence, “we review the whole record
to determine whether any rational trier of fact could have found the essential elements of
the crime or special circumstances beyond a reasonable doubt.” (People v. Zamudio
(2008) 43 Cal.4th 327, 357.) “The record must disclose substantial evidence to support
the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence.… A reversal for insufficient evidence
‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support”’ the jury’s verdict. [Citation.]” (Ibid.)
The same standard applies where the prosecution relies primarily on circumstantial
evidence, and we accept any logical inferences the jury could have drawn from the
circumstantial evidence. It is the jury, not the reviewing court, that must be convinced of
the defendant’s guilt beyond a reasonable doubt. (People v. Zamudio, supra, 43 Cal.4th
at pp. 357–358.)
B. Applicable law
For defendants who are 18 years old or older, the punishment for first degree
murder is death, LWOP, or imprisonment in state prison for a term of 25 years to life.
(§ 190, subd. (a).) The punishment for first degree murder where a special circumstance

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described in section 190.2, subdivision (a), is found true is either death or LWOP. (Id.,
subd. (b).)
The punishment for minors tried as adults is different. The death penalty cannot
be imposed on any person who was under the age of 18 at the time of the commission of
the crime. (§ 190.5, subd. (a).) Further, LWOP cannot be imposed on any person who is
under the age of 16 at the time of the commission of the crime. (Id., subd. (b); People v.
Demirdjian (2006) 144 Cal.App.4th 10, 17.) Instead, the greatest permissible punishment
for a minor under 16 years of age who commits a first degree murder with a special
circumstance is 25 years to life. (People v. Demirdjian, supra, at p. 17.)
Because Nash was under age 16 at the time of the murder, she was sentenced to a
term of 25 years to life. A successful challenge to the special circumstance finding would
not result in a reduction of her sentence because her remaining first degree murder
conviction requires the same punishment of 25 years to life in prison. (§ 190, subd. (a);
see People v. Bustos (1994) 23 Cal.App.4th 1747, 1754, fn. 4 (Bustos).) Nevertheless,
we address the issue because, if her contention is correct, she “would be entitled to have
the special circumstance stricken and be treated as an ‘ordinary’ first degree murderer.”
(Bustos, supra, at p. 1754, fn. 4.)
“In order to support a finding of special circumstances murder, based on murder
committed in the course of designated felonies, against an aider and abettor who is not
the actual killer, the prosecution must show either that the aider and abettor had intent to
kill (§ 190.2, subd. (c)) or acted with reckless indifference to human life while acting as a
major participant in the underlying felony. (§ 190.2, subd. (d).)” (Bustos, supra, 23
Cal.App.4th at p. 1753.)
Section 190.2, subdivision (d),27 “was added to existing capital sentencing law in
1990 as a result of the passage of the initiative measure Proposition 115, which, in
27 Section 190.2, subdivision (d), provides, in full: “Notwithstanding subdivision (c), every
person, not the actual killer, who, with reckless indifference to human life and as a major

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relevant part, eliminated the former, judicially imposed requirement that a jury find intent
to kill in order to sustain a felony-murder special-circumstance allegation against a
defendant who was not the actual killer.” (People v. Estrada (1995) 11 Cal.4th 568, 575
(Estrada).) The statutory phrases “reckless indifference to human life” and “major
participant” are taken verbatim from the United States Supreme Court’s decision in Tison
v. Arizona (1987) 481 U.S. 137, 158 and footnote 12 (Tison). “The incorporation of
Tison’s rule into section 190.2[, subdivision ](d)—in express terms—brought state capital
sentencing law into conformity with prevailing Eighth Amendment doctrine.” (Estrada,
supra, at p. 575.)
In Clark, the California Supreme Court explained that “the actus reus for the
felony-murder aider and abettor special circumstance requires more than simply being an
aider and abettor of the underlying felony under section 31. The special circumstance
requires that the defendant be a ‘“major participant”’ in the underlying felony. [Citation.]
Likewise, the mens rea requirement for the felony-murder aider and abettor special
circumstance is different from that required for first degree felony murder. The special
circumstance requires that the defendant have ‘“reckless indifference to human life.”’
[Citation.]
“Because the elements are different, what is sufficient to establish the elements for
an aider and abettor of first degree felony murder is not necessarily sufficient to establish
the elements of the felony-murder aider and abettor special circumstance. In Banks, we
rejected the argument that any defendant involved in a felony enumerated in the first
degree felony-murder statute (§ 189) automatically exhibited reckless indifference to
participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the
commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the
death of some person or persons, and who is found guilty of murder in the first degree therefor,
shall be punished by death or imprisonment in the state prison for life without the possibility of
parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found
to be true under Section 190.4.”

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human life. [Citation.] We observed that, although the felonies listed in section 189 are
those that the Legislature views as ‘“inherently dangerous,”’ this did not collapse the
differences between an analysis involving felony murder, on the one hand, and an
analysis of reckless indifference to human life, on the other. [Citation.] As we
concluded, ‘[w]hether a category of crimes is sufficiently dangerous to warrant felony-
murder treatment, and whether an individual participant has acted with reckless
indifference to human life, are different inquiries.’” (Clark, supra, 63 Cal.4th at pp. 615–
616.)
C. Analysis: Reckless indifference to human life
“[T]he culpable mental state of ‘reckless indifference to life’ is one in which the
defendant ‘knowingly engag[es] in criminal activities known to carry a grave risk of
death’ [citation] .…” (Estrada, supra, 11 Cal.4th at p. 577, citing Tison, supra, 481 U.S.
at p. 157; accord, Clark, supra, 63 Cal.4th at p. 611; Banks, supra, 61 Cal.4th at p. 801.)
“The defendant must be aware of and willingly involved in the violent manner in which
the particular offense is committed, demonstrating reckless indifference to the significant
risk of death his or her actions create.” (Banks, supra, at p. 801.) “[I]t encompasses a
willingness to kill (or to assist in another killing) to achieve a distinct aim, even if the
defendant does not specifically desire that death as the outcome of his actions.” (Clark,
supra, at p. 617.)
Our Supreme Court has further explained that reckless indifference to human life
“encompasses both subjective and objective elements. The subjective element is the
defendant’s conscious disregard of risks known to him or her. But recklessness is not
determined merely by reference to a defendant’s subjective feeling that he or she is
engaging in risky activities. Rather, recklessness is also determined by an objective
standard, namely what ‘a law-abiding person would observe in the actor’s situation.’”
(Clark, supra, 63 Cal.4th at p. 617.) Thus, “although the presence of some degree of

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[the] defendant’s subjective awareness of taking a risk is required, it is the jury’s
objective determination that ultimately determines recklessness.” (Id. at p. 622.)
1. Background
a. Tison and Enmund decisions28
The United Supreme Court’s decisions in Tison and Enmund were foundational to
the decisions in Banks and Clark. Enmund preceded Tison and our Supreme Court
described the decision, which had been dismissed as irrelevant by the Court of Appeal in
Banks, as inseparable from Tison. (Banks, supra, 61 Cal.4th at p. 806.) The Tison-
Enmund standard was imported to section 190.2 and, as a statutory matter, the “standard
is ‘applicable to all allegations of a felony-murder special circumstance, regardless of
whether the People seek and exact the death penalty or a sentence of life without [the
possibility of] parole.’” (Banks, supra, at p. 804.)
With the core constitutional principle that “punishment must accord with
individual culpability” as the starting place (Banks, supra, 61 Cal.4th at p. 801; accord,
Tison, supra, 481 U.S. at pp. 147–149; Enmund, supra, 458 U.S. at p. 788), the Supreme
Court “described the range of felony-murder participants as a spectrum.” (Banks, supra,
61 Cal.4th at p. 800.) The Enmund case exemplifies one extreme end of this spectrum: a
minor actor not on the scene who did not intend to kill anyone and lacked “‘any culpable
mental state.’ [Citation.] At the other extreme were actual killers and those who
attempted or intended to kill.” (Banks, supra, at p. 800.) The Tison case exemplifies
those cases in “the gray area in between” in which the actor was not the actual killer and
did not attempt or intend to kill but was nonetheless a major participant who exhibited
reckless indifference to human life and thus satisfies the culpable requirement. (Banks,
supra, at p. 800.)
28 Enmund v. Florida (1982) 458 U.S. 782 (Enmund).

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Given their foundational importance, we briefly summarize the facts underlying
Enmund and Tison before considering Banks and Clark. At issue in Enmund was
whether it was constitutional to impose the death penalty where the defendant did not kill
the victims, did not attempt to kill the victims and did not intend the victims be killed.
(Enmund, supra, 458 U.S. at p. 787.) In that case, an elderly couple was killed during the
course of an armed robbery at their house. The defendant was the getaway driver who
was waiting a few hundred feet away from the house. (Id. at pp. 786–788.) The court
concluded it was not constitutional and reversed the defendant’s sentence because it had
been imposed “in the absence of proof that [he] killed or attempted to kill, and regardless
of whether [he] intended or contemplated that life would be taken .…” (Id. at p. 801.)
In the Tison case, the court considered whether it was constitutional to impose the
death penalty where neither of the defendants, two brothers, were the actual killers nor
specifically intended the victims’ deaths. (Tison, supra, 481 U.S. at p. 138.) The court
rejected the minority position among courts that an intent to kill was required to support
imposition of capital punishment, stating “the reckless disregard for human life implicit
in knowingly engaging in criminal activities known to carry a grave risk of death
represents a highly culpable mental state, a mental state that may be taken into account in
making a capital sentencing judgment when that conduct causes its natural, though also
not inevitable, lethal result.” (Id. at pp. 157–158.) The court held “that major
participation in the felony committed, combined with reckless indifference to human life,
is sufficient to satisfy the Enmund culpability requirement.” (Id. at p. 158.)
The two Tison brothers, along with a third brother, entered a prison with an ice
chest containing guns. (Tison, supra, 481 U.S. at p. 139.) Once inside, they armed their
father and his cellmate, both convicted murderers, and all fled the prison. (Ibid.) Several
days later, one brother flagged down a passing motorist after the group’s car, a Lincoln,
got a flat tire and they decided to steal a car. (Id. at pp. 139–140.) After the others
emerged from hiding, the motorist and his family were forced into the Lincoln and driven

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into the desert by two of the brothers. (Id. at p. 140.) After transferring belongings from
the disabled Lincoln to the motorist’s car, one brother drove the Lincoln even farther into
the desert at his father’s direction. (Ibid.) The motorist begged not to be killed but after
the brothers’ father apparently considered the options, he and his cellmate killed the
family of four. (Id. at pp. 140–141.) They all fled and several days later, the group was
stopped at a roadblock. (Id. at p. 141.) One brother was killed during the shootout with
police, the father died of exposure after fleeing into the desert, and the two remaining
brothers and the father’s cellmate were brought to trial, convicted and sentenced. (Ibid.)
The court found the facts “clearly support a finding that [the brothers] subjectively
appreciated that their acts were likely to result in the taking of innocent life” (id. at
p. 152) and described the brothers’ participation in the crime as “‘substantial’” (id. at
p. 158).
Guided by Enmund and Tison, our Supreme Court articulated in Banks and Clark
some of the factors relevant in determining whether a defendant is a major participant and
acted with reckless indifference to human life, although it cautioned that no one factor is
either necessary or necessarily sufficient. (Clark, supra, 63 Cal.4th at p. 618; Banks,
supra, 61 Cal.4th at p. 803.) Our analysis of Nash’s conduct in this case is informed by
the facts underlying the decisions in Banks and Clark and, therefore, we briefly turn to
the facts of those cases.

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b. Banks decision
The Banks case involved the planned armed robbery of a medical marijuana
dispensary. (Banks, supra, 61 Cal.4th at p. 795.) One of the victims, an armed security
guard, was shot and killed during the robbers’ escape. (Id. at pp. 795–796.) The court
found the getaway driver, Lovie Troy Matthews, was not a major participant and did not
act with reckless indifference to human life, and it reversed the jury’s true special
circumstance finding. (Id. at pp. 807, 811.)
Matthews was not at the scene of the armed robbery; after dropping his three
confederates off to rob the dispensary, he waited three blocks away for 45 minutes before
he received a phone call from one of them and picked them up. (Banks, supra, 61 Cal.4th
at pp. 804–805.) There was no evidence Matthews had a role in planning the robbery,
obtained the weapons, could see or hear the shooting, instigated the shooting or could
have prevented the shooting. (Id. at p. 805.) There was also no evidence Matthews had
previously committed any crimes of violence (ibid.); as to his three confederates,
evidence of past acts of violence was nonexistent as to one and “so attenuated as to be
essentially nonexistent” as to the other two (id. at p. 811); and there was no evidence he
knew there would be a guard at the dispensary, let alone an armed guard (ibid.).
The court found “Matthews was, in short, no more than a getaway driver, guilty …
of ‘felony murder simpliciter’ [citations] but nothing greater.” (Banks, supra, 61 Cal.4th
at p. 805.) The court concluded that “[b]ecause nothing in the record reflects that
Matthews knew there would be a likelihood of resistance and the need to meet that
resistance with lethal force, the evidence failed to show Matthews ‘knowingly engag[ed]
in criminal activities known to carry a grave risk of death.’” (Id. at p. 811.)
c. Clark decision
Approximately one year after the issuance of Banks, the California Supreme Court
issued its decision in Clark. The defendant in that case was more than just a mere
getaway driver; he masterminded and organized the after-hours armed robbery of a

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computer store, and he orchestrated the robbery itself from a car in the store’s parking lot.
(Clark, supra, 63 Cal.4th at pp. 612, 623.) The court concluded there, too, however, that
the evidence was not sufficient to support the finding of special circumstance murder
because “there appear[ed] to be nothing in the plan … that elevated the risk of human life
beyond those risks inherent in any armed robbery.”29 (Clark, supra, at p. 623.)
The court considered that the group knew there would still be employees present
in the store at the planned time, although most would have left already. (Clark, supra, 63
Cal.4th at pp. 612–613, 620.) During the robbery, they handcuffed the employees who
were present and left them in the bathroom, as planned. (Id. at pp. 536, 613, 620.) There
was one weapon involved in the robbery, loaded with one bullet, although there was
some evidence it was intended to be unloaded. (Id. at pp. 613, 619.) When one of the
employee’s mothers approached the store, apparently to find out what was taking her son
so long to come out, her arrival caught one of the participants, Nokkuwa Ervin, off guard
and he shot her in the head, killing her. (Id. at pp. 535, 537, 612–613.) At that time, the
defendant was in a car in the store’s parking lot and not in the immediate area of the
shooting. (Id. at pp. 614, 619.) The court found no evidence the defendant directed
Ervin to use lethal force, knew Ervin had a propensity for violence, had the opportunity
to observe Ervin’s response to the victim’s arrival at the store, or could have intervened
in time. (Id. at pp. 619, 621.)
2. Nash’s culpability
Turning to the facts of this case, we focus on the evidence of Nash’s culpability in
Session’s death, guided by the factors in Clark.30 (Clark, supra, 63 Cal.4th at
29 The court discussed whether the defendant qualified as a major participant, but did not
decide the issue. (Clark, supra, 63 Cal.4th at p. 614.)
30 In Banks, the court identified some factors that distinguished the defendants in Tison
from the defendant in Enmund and, thus, might be relevant in determining whether a defendant is
a major participant in the crime. (Banks, supra, 61 Cal.4th at p. 803.) As we need not reach that
issue, we do not repeat those factors here. We note, however, the court’s recognition in Clark

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pp. 618-623.) Nash argues that under Banks and Clark, the evidence is insufficient as a
matter of law to support the special circumstance finding. The Attorney General argues
that, to the contrary, three of the five factors articulated in Clark apply in this case and,
therefore, our prior determination that substantial evidence supports the jury’s finding of
special circumstances should not be disturbed. (Clark, supra, at pp. 618–623.)
As previously stated, our analysis of the factors articulated in Clark compels the
conclusion that the special circumstance finding must be reversed.
a. Weapons
The first factor takes into consideration the presence and/or use of any weapons.
In Clark, a case involving armed robbery, the court explained that “mere … awareness
that a gun will be used in the felony is not sufficient to establish reckless indifference to
human life.” (Clark, supra, 63 Cal.4th at p. 618.) However, bringing an arsenal of
weapons into a prison and later guarding the victims with those weapons was viewed as a
significant fact in Tison, as is “use of a firearm,” even in the absence of intent to kill or
evidence identifying which defendant killed the victim. (Ibid.)
In this case, there is no evidence Nash, Moses or Angelique were armed with any
weapons. Session was fatally injured by blows from Moses’s fists. We emphasize this
fact makes her death no less tragic or reprehensible. It does, however, distinguish this
crime from those in which some or all of the participants arm themselves with weapons
prior to or during the crime. (Tison, supra, 481 U.S. at p. 139; Enmund, supra, 458 U.S.
at p. 784; Clark, supra, 63 Cal.4th at p. 618; Banks, supra, 61 Cal.4th at p. 803.) We
therefore find no increase in Nash’s culpability through the presence of any weapons.
that there is a “‘significant[] overlap’” between the elements of major participation and reckless
indifference to human life. (Clark, supra, 63 Cal.4th at pp. 614–615.)

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b. Nash’s presence and opportunity to restrain crime or aid
victim
We next consider Nash’s presence at the scene of the crime and any opportunity to
restrain the crime from occurring or aid the victim once the crime occurred. We agree
with the Attorney General that this factor is of the greatest weight in assessing Nash’s
culpability for Session’s death, but we are not persuaded by the argument that the
evidence supports a reasonable inference Nash saw Moses hit Session. As well, we reject
Nash’s argument that the evidence fails to show she saw Session after she was hit by
Moses and it is improperly speculative for the jury to have concluded otherwise.
There is evidence that Nash saw Session after Moses hit her and heard her ask for
help, but Nash chose to flee rather than aid Session or summon help; she later admitted to
Balasis that she should have called the police. There is insufficient evidence, however,
that Nash saw Moses hit Session, and there is no evidence that she had any opportunity to
restrain Moses from hitting Session, either because she knew it was going to occur in
advance or because she saw it as it was happening and could have intervened in time.
Thus, unlike the defendants in Clark and Banks, Nash was not at a distance from
the scene of the crime and merely acting as the functional equivalent of a getaway driver.
She was instead present in the house when Session was hit, but failed to render aid to or
seek assistance for Session. We note Session’s house was very small, there was only a
very short distance between the kitchen where the phone was located and the dining room
where Session was found, and the view from the phone area in the kitchen to the spot
where Session was found was unobscured.
Moreover, also unlike in Clark, the police were not arriving at the scene as Nash
fled, from which she would have known help was imminent. (Clark, supra, 63 Cal.4th at
p. 620.) Here, Nash had no idea when Session might be found and Session in fact lay on
the floor of her house for up to two hours, approximately, before Masengale found her.

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A reasonable trier of fact could therefore conclude that Nash was in the position to
either aid Session or seek help. She failed to do so and while her failure may have been
attributable to panic, consideration of this factor increases her culpability.
c. Duration of felony
“The duration of the interaction between victims and perpetrators” is another
consideration. (Clark, supra, 63 Cal.4th at p. 620.) We are unpersuaded by the Attorney
General’s argument that the duration of the felony increased Nash’s culpability. This is
not a case in which Session’s death occurred “at the end of a prolonged period of restraint
of the victim[] by defendant,” giving the perpetrators time to consider their next steps and
increasing the “‘window of opportunity for violence.’” (Ibid.) As the Attorney General
concedes, Moses’s attack on Session was “swift.” Nash, along with Moses and
Angelique, was looking to burglarize an unoccupied home and was surprised by
Session’s presence. While precisely what unfolded in the house minute by minute is
unclear, the crime did not unfold over a prolonged period of time; it was sudden and
brief. Thus, there was insufficient evidence “to show that the duration of the felony
under these circumstances supported the conclusion that [the] defendant exhibited
reckless indifference to human life.” (Id. at p. 621.)
d. Nash’s knowledge of Moses’s likelihood of killing
“A defendant’s knowledge of factors bearing on a cohort’s likelihood of killing [is
also] significant to the analysis of reckless indifference to human life. [A d]efendant’s
knowledge of such factors may be evident before the felony or may occur during the
felony.” (Clark, supra, 63 Cal.4th at p. 621.) In this case, there is no evidence Moses
had a propensity for violence or that Nash was aware of any propensity for violence. The
Attorney General does not argue otherwise and we find no increase in Nash’s culpability
under this factor.

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e. Effort to minimize violence
Finally, in an issue of first impression, the California Supreme Court concluded
“that a defendant’s apparent efforts to minimize the risk of violence can be relevant to the
reckless indifference to human life analysis. If the evidence supports an argument that
[the] defendant engaged in efforts to minimize the risk of violence in the felony, [the]
defendant may raise that argument and the appellate court shall consider it as being part
of all the relevant circumstances that considered together go towards supporting or failing
to support the jury’s finding of reckless indifference to human life. But the existence of
evidence that [the] defendant made some effort to minimize the risk of violence does not,
in itself, necessarily foreclose a finding that [the] defendant acted with reckless
indifference to human life, for the reasons set forth below concerning the two-part nature
of the mens rea analysis for recklessness under Tison and section 190.2, subdivision (d).”
(Clark, supra, 63 Cal.4th at p. 622.)
The Attorney General argues that this factor points to Nash’s increased culpability
because she made no effort to minimize the risk of violence.
Nash, however, contends she took steps to minimize the risk. As she previously
argued and we discussed in our now-vacated opinion, there is evidence that defendants
walked away from two houses where someone answered the door, and that she told
Balasis she wanted to make sure no one was home before she went to the back of
Session’s house and the victim surprised her. This evidence supports the prosecution’s
theory that Nash and her codefendants intended to commit a burglary, as it suggests they
were looking for an empty house from which to steal.
On the other hand, there is also evidence that Nash knew someone was home
when she entered Session’s house. At one point, Nash told Balasis that the victim
answered the door and Nash asked to use the telephone, although she also stated that the
victim surprised her. Separately, Moses told Balasis that he asked the victim if he could
use the telephone, the victim let him in the house, and he only struck the victim because

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she looked scared, and he thought she may have used her emergency pager. There was
also evidence that Masengale locked the back door at 3:15 p.m., but there was no
indication of forced entry at the back door when Session was discovered shortly after
6:00 p.m. The jury could have inferred that Session answered the back door after not
answering the front door and that she let Moses and Nash in to use the telephone. In that
case, Nash and Moses would have been aware of Session’s presence when they entered
the house.
Whether Session surprised Nash at the back door prior to entry or after she had
entered the house, however, her culpability in the burglary of what she had at one point
anticipated was an empty house is neither greater than nor equivalent to that of the
defendant in Clark. Even if he planned for the robbery to occur after the store closed and
planned for the weapon to be unloaded, and even though evidence showed the weapon
was loaded with only one bullet, the defendant in Clark nevertheless masterminded and
orchestrated an armed robbery of a store knowing there would be some employees
present, knowing there was the possibility that others might be present or interrupt, and
knowing the plan required employees be overtaken and handcuffed. (Clark, supra, 63
Cal.4th at pp. 621–622.) Therefore, we find some effort to minimize the risk of violence
occurred by virtue of the plan to target empty houses, unarmed.
3. Conclusion
Having reconsidered the evidence in this case in light of the recent decisions in
Banks and Clark, we find the evidence insufficient to support the jury’s finding of special
circumstance murder. Nash’s culpability for Session’s murder at the hands of Moses
rests in her failure to either aid Session or summon help for Session, despite being in the
house with Moses when he struck Session and seeing Session after she had been struck.
(Clark, supra, 63 Cal.4th at p. 623.) Consideration of all the factors, and viewed in the
context of the defendants’ conduct in Banks and Clark found to be insufficient to support
special circumstance murder, Nash’s mere presence in the house and her flight from the

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scene after Session was injured is not sufficient to show she was “aware of and willingly
involved in the violent manner in which the particular offense [was] committed,
demonstrating reckless indifference to the significant risk of death … her actions
create[d].” (Banks, supra, 61 Cal.4th at p. 801.) Session’s death at Moses’s hands was
senseless and cruel, but Nash’s individual culpability does not suffice to support the
special circumstance finding. To conclude otherwise under the facts of this case would
be to conflate special-circumstance murder with the felony-murder rule.31 (Clark, supra,
at pp. 616–617, 623; Banks, supra, at p. 810.)
IV. Nash’s sentence
Nash was convicted of first degree murder with a burglary special circumstance—
a conviction that would be punishable by LWOP or death if committed by an adult.
(§ 190.2, subd. (a)(17)(G).) As we have explained, however, because Nash was under
16 years old at the time of the murder, the only statutorily authorized punishment for her
conviction was 25 years to life in prison and her successful challenge to the special-
circumstance finding does not result in a reduction of her sentence because her remaining
31 We relied on People v. Smith (2005) 135 Cal.App.4th 914, 927 (Smith), overruled on
another ground as recognized in People v. Garcia (2008) 168 Cal.App.4th 261, 291–292, in our
previous opinion. We need not weigh in on what the result in that case would be today under
Banks and Clark; our role is to apply the California Supreme Court’s more recent decisions to
the evidence in this case. We note, however, the Court of Appeal’s description of the attack and
the defendant’s role: “Even if Taffolla remained outside Star’s room as a lookout, the jury could
have found Taffolla gained a ‘subjective awareness of a grave risk to human life’ during the
many tumultuous minutes it would have taken for Star to be stabbed and slashed 27 times, beaten
repeatedly in the face with a steam iron, and had her head slammed through the wall. In
addition, when Smith emerged from her room covered in enough blood to leave a trail from the
motel to McFadden Street, Taffolla chose to flee rather than going to Star’s aid or summoning
help.” (Smith, supra, at p. 927.) The court concluded that “[u]nlike the hypothetical ‘non-major
participant’ in Tison[, supra,] 481 U.S. [at page] 158—who ‘merely [sat] in a car away from the
actual scene of the murders acting as the getaway driver to a robbery’—Taffolla stood sentry just
outside Star’s room, where the jury could infer he monitored and guarded the increasingly
lengthy, loud, and violent attempted robbery-turned-murder.” (Id. at p. 928.)

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first degree murder conviction requires the same punishment of 25 years to life in prison.
(See §§ 190, subd. (a), 190.5, subd. (b); Bustos, supra, 23 Cal.App.4th at p. 1754, fn. 4.)
On appeal, Nash asserts that, because she was 15 years old at the time of the
crime, the matter should be remanded to the trial court to determine whether she could
benefit from treatment in juvenile court or should be placed on probation. She further
contends that the sentence she received of 25 years to life in prison violates the
prohibition against cruel and unusual punishment.
A. Facts
After the joint trial on guilt began, Nash filed a motion to transfer her case to
juvenile court. She argued that her prosecution in adult criminal court violated her due
process and Eighth Amendment rights because (1) she would be deprived of treatment
and rehabilitative opportunities, (2) her young age and lack of intent to kill could not be
taken into consideration by the jury in deciding her guilt, (3) she would be subjected to a
disproportionate punishment of 25 years to life in prison, (4) the trial court would have no
discretion to impose a lesser term based on her individual characteristics, and (5) an adult
criminal conviction would have far more severe and lifelong detrimental consequences
than a juvenile adjudication would have.
The prosecution filed an opposition to the motion, which included a summary of
Nash’s record of poor conduct at school and in her foster care and group home
placements. According to the opposition brief, in 2005, Nash was arrested for battery. In
2006, when Nash was 11 years old, she assaulted a staff member at her group home and
was arrested for vandalism. In 2007, she was reported for beating another student on a
school bus. School officials reported that Nash was defiant and disrespectful. She was
placed in group homes and often ran away. In 2009, she was arrested for assaulting two
girls. In November 2009, Nash absconded from her group home and her whereabouts
were unknown at the time of her arrest in this case.

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After the close of evidence but before the matter was submitted to the jury, the
trial court heard the parties’ arguments and denied Nash’s motion to transfer her case to
juvenile court. The court made the following findings:
“That unfortunately [Nash] would not benefit, should she be convicted of
the special circumstance felony murder, would not benefit from further
rehabilitative efforts offered by the juvenile justice system due to
increasingly violent—violations of the law by [Nash].
“Second, we don’t have a case …, a statute or binding authority that
would stand for the proposition that a 25-to-life sentence is somehow
unconstitutional under the Eighth Amendment.
“And then should she be convicted in this case, I feel that the
punishment of 25-to-life is fitting due to the brutal nature of the homicide
to the poor 81-year-old defenseless lady in her own home, the
circumstances of the crime, and her individual participation, certainly in my
opinion, indicate that, should she be convicted, the appropriate sentence
would be what the law requires, especially when you consider the goals of
retribution, deterrence, and rehabilitation.
“Unfortunately, efforts at rehabilitation and deterrence have not
worked for [Nash]. She does have … the meaningful opportunity to obtain
release, should she be convicted on a 25-to-life sentence, through the Parole
Board based on what she would have to show, demonstrated maturity and
rehabilitation. I do not feel at this time there has been any showing of
demonstrated maturity and rehabilitation on her part, unfortunately.”
On October 30, 2012, Nash moved for a new trial or verdict modification
challenging the jury’s true finding as to the special circumstance. She argued there was
insufficient evidence that she harbored reckless indifference to human life as no evidence
showed that she had reason to suspect Moses would kill anyone or that she aided and
abetted his sudden and quick attack of Session.
On November 13, 2012, the court heard arguments on Nash’s motion. Her
attorney urged the court to consider her limited intellect in determining whether there was
sufficient evidence of the requisite mental state for the special circumstance finding.

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After hearing the parties’ arguments, the court denied Nash’s motion and moved on to
sentencing.
A probation officer’s report prepared for sentencing found Nash was unsuitable
for probation and recommended a sentence of 25 years to life in prison. Nash provided a
statement for the report. She denied committing the offense and said she and her sister
did not know what was going to happen. Nash stated: “What [Moses] did was in his
mind not ours. I think they made a mistake. I am innocent and always will be innocent.”
The probation officer concluded that Nash “still does not understand or take
responsibility for her actions.”
Nash’s attorney asked the court to strike the probation officer’s conclusion that
Nash did not take responsibility for her actions. He argued Nash’s statement was
“unartful on the part of my 17-year-old client with a 76 IQ,” but was correct in the sense
that Nash and her sister did not know or have reason to know Moses would strike Session
as he did. The prosecutor responded that Nash was aware she was involved in a burglary
and that her statement to the probation officer showed she was not taking responsibility.
The court denied Nash’s request to strike that portion of the report.
The court found no factors or circumstances in mitigation and found the following
circumstances in aggravation:
“[One,] the crime involved acts disclosing a high degree of cruelty,
[viciousness], callousness in that the victim was pleading, begging for help
and mercy during the incident. Two, the victim was particularly vulnerable
in that she was 81 years of age and apparent to her in the sanctity and safety
of her own home.…
“Three, the defendant was on juvenile probation when the instant
crime was committed. Four, [Nash’s] prior performance on juvenile
probation was unsatisfactory in that she violated the terms. I find no factors
in mitigation. Factors in aggravation clearly outweigh the absence of
findings in mitigation.”

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The court found that Nash was an unsuitable candidate for probation “due to [the]
seriousness and violent nature of the offense.” The court observed: “[W]hat also is very
striking to the Court in listening to the evidence of the case that though she was youthful
at the time of the offense and was aware what was happening in the home, absolutely no
attempt was made to help the defenseless elderly victim. She still does not understand or
take responsibility for her actions and her conduct demonstrates a significant danger to
our community. [¶] And regretfully I have to find that a lengthy prison sentence is the
only suitable disposition in this case.” The court imposed a term of 25 years to life in
prison.
B. Analysis
1. Nash has not shown a violation of due process
In her first challenge to the sentence, Nash asserts that due process required the
trial court to impose an individualized sentence. She contends, “[P]rinciples of fairness
in punishing minors required the court to consider imposing an individualized
disposition” for her. Nash requests that we vacate her sentence and remand the matter to
the trial court either “to determine whether [she] could have benefitted from treatment in
juvenile court” or, alternatively, “for consideration whether [she] should have been
placed on probation with terms and conditions suited to treatment and rehabilitation.”
Nash begins her argument with a discussion of her motion to transfer her case to
the juvenile court, which the trial court denied, and a description of juvenile court
procedures. To the extent Nash intends to suggest that her case should have been in
juvenile court rather than in adult criminal court, she offers no authority to support this
suggestion. As we have mentioned, the district attorney was permitted to try her as an
adult because of the circumstances of the case (Welf. & Inst. Code, § 707, subd. (d)) and,
on this record, we have no reason to conclude there was any error in the trial court
denying her motion to transfer her case to juvenile court.

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Nash next asserts that a sentencing court must have options when sentencing a
minor, citing “due process and Eighth Amendment considerations.” (Some capitalization
and underlining omitted.) Nash relies on recent United States Supreme Court sentencing
cases. In 2005, the United States Supreme Court held the death penalty is prohibited for
offenders who were under 18 years old when they committed their crimes. (Roper,
supra, 543 U.S. at p. 578.) Five years later, in Graham, supra, 560 U.S. at page 82, the
court held, “The Constitution prohibits the imposition of a life without parole sentence on
a juvenile offender who did not commit homicide.” Most recently, in 2012, the Supreme
Court held that a mandatory sentencing scheme that requires minors convicted of
homicide to be sentenced to LWOP, “regardless of their age and age-related
characteristics and the nature of their crimes,” violates the Eighth Amendment. (Miller,
supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2475].)
As the Attorney General argues, however, these cases do not apply to sentences
that “leave the possibility of substantial life expectancy after prison,” such as Nash’s 25-
years-to-life sentence. (People v. Perez (2013) 214 Cal.App.4th 49, 52 (Perez), review
den., cert. den. (2013) ___ U.S. ___ [134 S.Ct. 527].) In Graham, the court indicated that
a life sentence with the possibility of parole would be permissible even for a nonhomicide
juvenile offender. (Graham, supra, 560 U.S. at p. 82 [“A State need not guarantee the
offender eventual release, but if it imposes a sentence of life it must provide him or her
with some realistic opportunity to obtain release before the end of that term.”].) In
Miller, the court reasoned that, for minors, LWOP is akin to the death penalty, and, just
as individualized sentencing is required in capital cases, individualized sentencing is
required before LWOP may be imposed on a minor. (Miller, supra, 567 U.S. at p. ___
[132 S.Ct. at pp. 2466–2470].) We do not read Miller as suggesting that individualized
sentencing, which is required in capital cases for adults and in LWOP cases for minors, is
also required for minors when the sentence is 25 years to life in prison with the

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possibility of parole. (See id. at p. 2466 [LWOP shares characteristics with the death
penalty, which are not shared by any other sentences].)
The Court of Appeal reached a similar conclusion in Perez. In that case, the
defendant was convicted of molesting two young boys when he was 16 years old. (Perez,
supra, 214 Cal.App.4th at p. 51.) Under California’s one strike law, his convictions
required a sentence of two consecutive terms of 15 years to life in prison. (Id. at p. 58,
citing § 667.61, subds. (b) & (i).) On appeal, the defendant argued that the Miller line of
cases implied that California’s one strike law was unconstitutional as applied to minors
because it deprived trial courts of the discretion to take into account age. (Perez, supra,
at p. 58.)
The Court of Appeal rejected the defendant’s argument. After examining the
major United States Supreme Court cases on sentencing minors and California cases
applying Miller, the court summarized the law as follows: “There is a bright line
between LWOP’s and long sentences with eligibility for parole if there is some
meaningful life expectancy left when the offender becomes eligible for parole. We are
aware of—and have been cited to—no case which has used the [Miller] line of
jurisprudence to strike down as cruel and unusual any sentence against anyone under the
age of 18 where the perpetrator still has substantial life expectancy left at the time of
eligibility for parole.” (Perez, supra, 214 Cal.App.4th at p. 57, fn. omitted.) The court
noted that the defendant in Perez would be eligible for parole when he reaches age 47.
(Id. at p. 58.)
The Perez court concluded:
“[T]his is not an LWOP case. The state’s most severe penalties are not at
stake here. So, essentially, [the defendant’s] argument boils down to
proposing a judicially imposed rule of mandatory discretion, namely that no
matter how heinous the crime—or how mild the penalty otherwise imposed
on adults—the federal and state cruel and unusual punishment clauses
require states to hold out some possibility of discretionary reduction in that
penalty to take into account an offender’s youth.…

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“This seems to us a question properly addressed to the Legislature
and we need only note that, at the moment at least, no high court has
articulated a rule that all minors who commit adult crimes and who would
otherwise be sentenced as adults must have the opportunity for some
discretionary reduction in their sentence by the trial court to account for
their youth.” (Perez, supra, 214 Cal.App.4th at p. 59, fn. omitted.)
Following Perez, we reject Nash’s position that the mandatory penalty of 25 years
to life for felony murder violates due process or the Eighth Amendment as applied to
minors. We observe that Nash was arrested when she was 15 years old and, with credit
for time served, she could become eligible for parole when she is 40 years old.
Nash also describes sentencing alternatives, suggesting that the trial court could
have ordered her placement in a diagnostic facility for observation and treatment pursuant
to section 1203.03. But her attorney did not request such a placement during the
sentencing hearing, and the Attorney General points out the trial court had no obligation
to pursue this option. To the extent Nash argues otherwise, we see no abuse of discretion
in the trial court not ordering a diagnostic placement. (See People v. McNabb (1991) 228
Cal.App.3d 462, 471.)32
2. Nash’s sentence is not cruel and unusual punishment
In her second challenge to her sentence, Nash contends 25 years to life in state
prison is cruel and unusual punishment as applied to her because of her youth, minimal
culpability, mild mental retardation, psychological challenges, and her mental disorders.
We disagree.
32 Nash also mentions as sentencing alternatives the possibility of probation or imposing a
lesser term because the mandated sentence is grossly disproportionate to her culpability. Nash
notes that the probation officer’s report failed to mention her chaotic childhood or her psychiatric
diagnoses and identified no mitigating circumstances. She also argues that she did not touch the
victim and she had a panicked reaction to Moses’s assault on Session. These observations,
however, do not demonstrate the trial court’s decision to deny probation was an abuse of
discretion. We address Nash’s grossly disproportionate argument in our discussion of her
challenge to her sentence as cruel and unusual punishment.

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The Eighth Amendment of the United States Constitution prohibits infliction of
“cruel and unusual punishments”; it applies to the states through the Fourteenth
Amendment. (Roper, supra, 543 U.S. at p. 560.) Article I, section 17 of the California
Constitution prohibits infliction of “[c]ruel or unusual” punishment. “The touchstone in
each is gross disproportionality.” (People v. Palafox (2014) 231 Cal.App.4th 68, 82
(Palafox); see Rummel v. Estelle (1980) 445 U.S. 263, 271.) “Whether a punishment is
cruel and/or unusual is a question of law subject to our independent review, but
underlying disputed facts must be viewed in the light most favorable to the judgment.”
(Palafox, supra, at p. 82.)
“[A] punishment may violate the California constitutional prohibition [against
cruel or unusual punishment], ‘if, although not cruel or unusual in its method, it is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.’” (People v. Dillon (1983) 34 Cal.3d
441, 478 (Dillon), disapproved on another point in People v. Chun (2009) 45 Cal.4th
1172, 1185–1186.) To determine whether a punishment is cruel or unusual, courts
“examine[] the nature of the offense and/or the offender, with particular regard to the
degree of danger both present to society.” (In re Lynch (1972) 8 Cal.3d 410, 425, italics
added.) “Successful challenges based on the traditional Lynch–Dillon line [of cases] are
extremely rare.” (Perez, supra, 214 Cal.App.4th at p. 60; see Rummel v. Estelle, supra,
445 U.S. at p. 272 [“Outside the context of capital punishment, successful challenges to
the proportionality of particular sentences have been exceedingly rare.”].)
Here, the trial court found the nature of the crime involved “a high degree of
cruelty, [viciousness], [and] callousness in that the victim was pleading, begging for help
and mercy during the incident” and, “the victim was particularly vulnerable in that she
was 81 years of age and … in the sanctity and safety of her own home.” As to the nature
of the offender, the court noted—in denying Nash’s motion to transfer her case to
juvenile court—that her conduct had become “increasingly violent” and the juvenile

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justice system would not benefit her. In imposing her sentence, the court observed that
Nash’s performance on juvenile probation was unsatisfactory. Of great significance to
the court, Nash “was aware what was happening in [Session’s] home, [but] absolutely no
attempt was made to help the defenseless elderly victim.” The court concluded that
“[Nash’s] conduct demonstrates a significant danger to our community.” (Italics added.)
Given the circumstances of Session’s murder in her own home, Nash’s juvenile history,
and the sentencer’s express finding that Nash is a significant danger to the community,
we cannot say the sentence of 25 years to life in state prison shocks the conscience.
Nash again cites Miller, supra, 567 U.S. ___ [132 S.Ct. 2455], and Roper, supra,
543 U.S. 551, and argues she is less culpable for her crime because of her youth. We
observe that California’s sentencing scheme has already reduced her potential
punishment twice because of her age. First, even though she was convicted of a crime
punishable by LWOP or death if committed by an adult, she could not receive the death
penalty because she was under 18 years old when the crime was committed. (§§ 190.2,
subd. (a)(17)(G), 190.5, subd. (a).) Second, she could not receive LWOP because she
was under 16 years old when the crime was committed. (§ 190.5, subd. (b); People v.
Demirdjian, supra, 144 Cal.App.4th at p. 17.)
Nash asserts that she does not pose a danger to society because she is only
responsible for Session’s murder based on the felony-murder rule. We reject this
assertion as it ignores both the facts underlying this senseless, callous crime and the trial
court’s observation that she represents a “significant danger to our community.” Nash
argues that her state of mind reflected a lessened culpability because she cried and said
she was sorry during her interview with the detectives. Again, this argument ignores the
nature of the crime and the trial court’s observation.
Nash also relies on Dillon, supra, 34 Cal.3d 441. In Dillon, the defendant was
convicted of first degree felony murder, but our high court held his sentence of life
imprisonment (as was required under former section 190 (as amended by Stats. 1976,

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ch. 1124, § 1)) was excessive under the facts of the case. (Dillon, supra, at pp. 487, 489.)
The trial court in Dillon initially committed the defendant, who was 17 years old at the
time of the offense, to the Youth Authority (now the Division of Juvenile Facilities). The
trial court gave three reasons for not sentencing the defendant to state prison: (1) the
defendant’s immaturity, “‘emotionally, intellectually, and in a lot of other ways’”; (2) the
court’s belief that the defendant was not dangerous; and (3) the fact that this was the
defendant’s first offense. (Id. at p. 486.) In addition, the jury foreman submitted a letter
to the court stating that most or all of the jurors believed the defendant should be
committed to the Youth Authority rather than sentenced to state prison. (Id. at p. 485.)
Subsequently, however, the People challenged the commitment order, and the
Court of Appeal held the defendant was ineligible for commitment to the Youth
Authority as a matter of law. The defendant was then sentenced to life imprisonment in
state prison. (Dillon, supra, 34 Cal.3d at pp. 486–487.) Thus, the Supreme Court
observed, the punishment “turned out to be far more severe than all parties expected.”
(Id. at p. 486.) In the circumstances of the case, the court held the sentence of life
imprisonment was unconstitutional; the court reduced the defendant’s murder conviction
to second degree murder and remanded the matter for resentencing. (Id. at p. 489.)
The facts of Dillon are easily distinguished from Nash’s case. Here, the trial court
found Nash to be a significant danger to the community, and she had at least one prior
juvenile adjudication as well as a history of violent confrontations.33 Further, in Dillon,
the jury and trial court apparently agreed that commitment to the Youth Authority would
be the appropriate disposition for the defendant, but here, the trial court determined that
Nash would not benefit from further rehabilitative efforts offered by the juvenile justice
33 Nash argues that her criminal history is explained by her mental deficiencies and
emotional challenges, relying on Hoagland’s testimony. But the trial court heard all the evidence
presented at trial and determined that Nash was a danger to the community. We cannot say this
determination was made in error.

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system. In sum, we conclude this is not one of the “extremely rare” cases in which the
punishment must be set aside because of gross disproportionality. (Perez, supra, 214
Cal.App.4th at p. 60.)
However, in light of the California Supreme Court’s recent decision in Franklin,
we shall remand this matter to the trial court to determine whether Nash had an “adequate
opportunity at sentencing to make a record of mitigating evidence tied to [her] youth.”
(Franklin, supra, 63 Cal.4th at p. 269.) Although Nash’s age was documented in the
probation report and mentioned by the trial court, the trial court found no factors in
mitigation. At the time of her sentencing in 2012, Miller had been decided but the
legislation leading to the enactment of section 3051 and the amendment to section 4801
had not yet been proposed and, of course, Franklin had not been decided. (Sen. Bill
No. 260 (2013-2014 Reg. Sess.) introduced Feb. 13, 2013.) As recognized by the court,
“[t]he criteria for parole suitability set forth in … sections 3051 and 4801 contemplate
that the [Board of Parole Hearing’s] decisionmaking at [the defendant’s] eventual parole
hearing will be informed by youth-related factors, such as … cognitive ability, character,
and social and family background at the time of the offense.” (Franklin, supra, at p.
269.) Inasmuch as the parties and the trial court did not have the benefit of sections 3051
and 4801 or Franklin at the time of sentencing, it is appropriate to remand this matter for
consideration of youth-related factors.
V. Wheeler/Batson motion
Moses contends the trial erred by denying his Wheeler/Batson motion. Nash joins
in and adopts this contention. We conclude substantial evidence supports the trial court’s
findings.
A. Applicable law
“Both the state and federal Constitutions prohibit the use of peremptory challenges
to exclude prospective jurors based on race[, ethnicity,] or gender. [Citations.] Such a
use of peremptories by the prosecution ‘violates the right of a criminal defendant to trial

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by a jury drawn from a representative cross-section of the community under article I,
section 16 of the California Constitution. [Citations.] Such a practice also violates the
defendant’s right to equal protection under the Fourteenth Amendment to the United
States Constitution.’ [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341
(Bonilla); see People v. Trevino (1985) 39 Cal.3d 667, 683 [Hispanics are cognizable
group protected from discriminatory exclusion from jury service], disapproved on other
grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1219–1221.)
“There is a rebuttable presumption that a peremptory challenge is being exercised
properly, and the burden is on the opposing party to demonstrate impermissible
discrimination.” (Bonilla, supra, 41 Cal.4th at p. 341.) When a defendant challenges the
prosecution’s peremptory strikes in a Wheeler/Batson motion, the trial court decides the
motion using a three-step procedure. First, the defendant must make a prima facie case
by showing that the totality of the circumstances gives rise to a reasonable inference of
discriminatory purpose. Second, if the defendant makes a prima facie case of
discriminatory purpose, the burden shifts to the prosecution to adequately explain its
peremptory challenges by offering permissible group-neutral justifications for the strikes.
Third, if such an explanation is offered, the trial court must decide whether the defendant
has proven purposeful discrimination. (Bonilla, supra, at p. 341.)
“A prosecutor asked to explain his conduct must provide a ‘“clear and reasonably
specific” explanation of his “legitimate reasons” for exercising the challenges.’
[Citation.] ‘The justification need not support a challenge for cause, and even a “trivial”
reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be
excused based upon facial expressions, gestures, hunches, and even for arbitrary or
idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any
number of bases to select jurors, a legitimate reason is one that does not deny equal
protection. [Citation.]” (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).)

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“At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to
whether the trial court finds the prosecutor’s race-neutral explanations to be credible.
Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how
reasonable, or how improbable, the explanations are; and by whether the proffered
rationale has some basis in accepted trial strategy.’ [Citation.] In assessing credibility,
the court draws upon its contemporaneous observations of the voir dire. It may also rely
on the court’s own experiences as a lawyer and bench officer in the community, and even
the common practices of the advocate and the office that employs him or her.
[Citation.]” (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.)
“Review of a trial court’s denial of a Wheeler/Batson motion is deferential,
examining only whether substantial evidence supports its conclusions. [Citation.] ‘We
review a trial court’s determination regarding the sufficiency of a prosecutor’s
justifications for exercising peremptory challenges “‘with great restraint.’” [Citation.]
We presume that a prosecutor uses peremptory challenges in a constitutional manner and
give great deference to the trial court’s ability to distinguish bona fide reasons from sham
excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to
evaluate the nondiscriminatory justifications offered, its conclusions are entitled to
deference on appeal. [Citation.]’ [Citation.]” (Lenix, supra, 44 Cal.4th at pp. 613–614,
fn. omitted.)
B. Facts
On August 31, 2012, Nash made a timely Wheeler/Batson motion and Moses and
Angelique joined in the motion. The trial court noted for the record that the existing
panel of prospective jurors included two Hispanic men and three Hispanic women, one of
whom appeared to the court to be part African-American.34 The court then recounted
34 The parties do not state, and we have not been able to discern from the record, the
ultimate composition of the jury.

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that, over the course of three days, the prosecutor had used peremptory challenges to
excuse the following ten panelists: A.O., P.H., S.G., G.B., J.S., P.L.M., M.G., P.B.,
P.P.M., and B.M.
Nash’s attorney noted that four of the 10 panelists excused by the prosecution,
G.B., J.S., M.G., and P.P.M., were Hispanic women, S.G. was a Hispanic man, and the
remaining excused panelists were women. Moses’s attorney argued the prosecutor’s
challenges “were systematic in that they were targeting females and minority females.”
He asked the court “to take into consideration that each of those individuals that were
kicked [off] by [the prosecutor] have indicated that they would be fair and impartial, and
there was nothing about their responses that would indicate otherwise.” After the court
asked about one of the excused panelists who was a mental health specialist (B.M.),
Angelique’s attorney noted that a male nurse who worked in a nursing home remained on
the panel.
The court found the defense had made a prima facie case, and the burden shifted to
the prosecutor to explain the reasons for his peremptory challenges.
The prosecutor offered the following explanations:
“As to Miss [M.], I removed her because we met with her
individually. She indicated her son had been convicted and sent to prison
for five years. When she came in and made the box, when she was asked if
she’d had a bad experience with law enforcement, she said kind of, or she
qualified and changed her statement slightly from what we had discussed
with her individually. So based on that, I removed her. That qualification
caused me concern since we had spoken to her individually.
“Miss [G.] is a psychiatric nurse, and because the defense, for two
defendants, is very reliant on psychiatric experts, I didn’t want a hidden
expert in the back. And for that reason, her closeness to the subject
material, her knowledge of it, I didn’t feel comfortable having her as a juror
based on the defense I expect to be presented. [¶] … [¶]
“Miss [M.], there was a little bit of the psych issue on her, but the
big issue on her is she was on a hung jury. My practice has always been to
remove jurors with prior jury experience of a hung jury. The question in

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my mind is are they going to be able to in a group setting—and granted the
defense doesn’t have to worry about this issue, but I do. I have to convince
all 12. And I am also—in addition to looking at individuals, I’m looking at
a group composition. Individuals who have been on hung juries, in my
opinion, strike me as individuals who kind of had that experience before
and for one reason or another didn’t rise to the challenge, so to speak, at
least in a group setting.
“The other part of that actually came from [Angelique’s attorney’s]
questioning in that he asked what she learned from it. She learned that
people can be swayed. That’s not necessarily indicative of the kind of juror
I’m looking for. But also that she would hold her ground. And that can go
both ways, but either way it causes me concern. So that’s Miss [M.]
“As to Miss [B.], the sole issue on her was— [¶] … [¶] She’s not
Hispanic, but a female. I removed her because her answer was qualitatively
different from every other juror when I asked about juveniles being charged
as adults. She had reservations. And because of the amount of
peremptories I had, I elected not to take that risk.
“Every other juror I’ve questioned who’s remained and has been
accepted, with the exception of one who we excused for cause during
individual voir dire, has indicated they have no issue or strong opinions
about that. She did, and so in the abundance of caution I removed her.
“[B.M.] was the same issue I had with Miss [G.], too close to the
psychological stuff, and also substance abuse. One of the main defenses,
especially as to [Moses], is that somehow he was intoxicated or under the
influence of something or another. My impression—or my thoughts on her
was just too close and too much of a possible hidden expert in the back. So
that’s why I removed her.
“Miss [S.] was on a hung jury and it was 6–6. Granted, it was a
[section] 288, but still, same comments I made earlier. Jurors—I’m looking
for a group of 12 who can come to a unanimous verdict, so a hung juror just
doesn’t do it for me.
“Miss [B.] was also on a hung jury and indicated she was in the
minority. A lot of times I go on the assumption—and I recognize this is an
assumption—that when it’s in the minority, that she was in the minority for
the defense. I recognize that [it’s] also possible she was in the minority for
the People. But in either event, she was on a hung jury and on a relatively
simple case, so that causes me concerns as far as being on a case this

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complicated … she causes me the concerns that I—comments I’ve made
regarding others who have been on hung juries.
“Miss [H.] was the custodian from Tehachapi. I removed her simply
because her interactions with defense counsel was much more friendly,
much more open. She smiled, she laughed, a variety of more personal
interactions. When I questioned her it was very cold. It was very short
answers, very curt, was the impression I got from her. I, in fact, tried to ask
her what are your feelings about being here, are you excited to be here, you
disappointed to be here, and still very nonresponsive with me. So I
removed her for that reason.
“And the last female is Miss [O.] She indicated she was
unemployed and was involved in food prep. If memory serves, she was 18,
19 years old, very young, and was unemployed. I just didn’t feel for a
complicated murder case with multiple theories, three defendants, mental
health defenses, I didn’t feel she had sufficient life experience that I felt
comfortable leaving her as a juror.”
The court asked the prosecutor about comparative analysis with the prospective
jurors on the panel. The prosecutor responded that there was a nurse, C.C., on the panel,
but C.C. indicated he had no experience with psychology. The prosecutor reiterated that
his concern was with prospective jurors involved with mental health issues. He also
noted that two of the remaining panelists had served on juries, but they had reached
verdicts.
The court then denied defendants’ motion, stating: “Based on what I’ve heard
from the totality of the record and the evidence, find that the prosecutor has adequately
explained the racial-exclusion allegation by offering permissible race-neutral
justifications to the exercise of the peremptory challenges as to the Hispanic and non-
Hispanic women on the panel. [¶] And further find that there was subjective
genuineness of the race-neutral reasons given for the exercise of the challenges. And
further find that the prosecutor’s race-neutral explanations given as to the exercise of
each challenge is credible and, from my perspective, sincere and genuine. [¶]
Respectfully deny the Wheeler-Batson motion.” (Italics added.)

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C. Analysis
Moses questions the prosecutor’s stated reasons for excusing the nine female
panelists.35 He argues the explanations were not plausible and therefore suggest the
prosecutor’s real reason for excusing the panelists was improper discrimination. We
conclude the record contains substantial evidence to support the trial court’s findings.
1. P.L.M.
As to P.L.M., the prosecutor told the court:
“I removed her because we met with her individually. She indicated her
son had been convicted and sent to prison for five years. When she came in
and made the box, when she was asked if she’d had a bad experience with
law enforcement, she said kind of, or she qualified and changed her
statement slightly from what we had discussed with her individually. So
based on that, I removed her. That qualification caused me concern since
we had spoken to her individually.”
The record indicates that, for the first two days of jury selection, the court and
attorneys questioned panelists individually and privately on preliminary questions
regarding hardship, knowledge of the case or witnesses, and other reasons they might be
excused from jury service.36 This is the questioning the prosecutor referred to as when
“we met with [P.L.M.] individually.” On the third day, after the venire had been
35 In responding to the motion, the prosecutor did not offer a reason for excusing S.G., a
Hispanic man, and neither the trial court nor the defense attorneys followed up with a request for
an explanation regarding S.G. On appeal, Moses does not argue the prosecutor excused S.G.
based on improper motive. Accordingly, Moses has waived any challenge to the excusal of S.G.
36 The court gave the panelists six questions and then spoke individually to those who
answered yes to at least one question. The questions were: (1) “do you have any knowledge of
the facts or of any pretrial publicity or do you know any of the parties, witnesses, or attorneys?”;
(2) “is there anything about the nature of the case or crimes charged that would affect your
ability to be a fair and impartial juror?”; (3) “Has your life or that of someone close to you been
touched or affected by a crime of violence or a crime similar to what’s alleged in this case?”;
(4) “is there any reasons you feel you can’t serve, such as an extreme financial, medical, or
vacation hardship?”; (5) “is there any reason that you feel that you couldn’t be a fair and
impartial juror in this case?”; (6) “any legitimate reason, from your perspective, that you feel
would prevent you from serving?”

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screened in this manner, 12 randomly selected panelists were seated in the jury box and
questioned while the remaining panelists sat in the audience. This was the questioning
the prosecutor described as “[w]hen she came in and made the box.”
During her individual questioning, P.L.M. stated that her son was convicted of
felony drunk driving and felony child endangerment and was sentenced to five years four
months in prison. The court asked if she “ha[d] a chip on [her] shoulders in regard to the
District Attorney’s Office for prosecuting him.” She responded, “No, not really.”
(Italics added.) The court asked her what she meant by “not really,” and she stated, “Not
really, because he was drunk and he was driving and he had his kids in his car, so—.”
P.L.M. said she could decide the case solely on the evidence and the law. The prosecutor
asked if there were anything about her son’s case that she thought was not fair. She
responded that her son should have had a more prepared public defender. However, she
concluded, “I don’t have any problem with the system punishing him for the choice that
he made that day.”
Later, when P.L.M. was seated in the jury box with other potential jurors, the court
asked her, “Have you ever had a less-than-pleasurable experience with law
enforcement?” She replied, “We kind of touched on that, but no, not really.” (Italics
added.) The questioning continued:
“Q. Okay. Would any experience you’ve had with law enforcement in
the less-than-pleasurable category cause you to have any feeling of bias or
prejudice in regard to peace officers that might testify—
“A. No.
“Q. —the court, or the prosecutor?
“A. No.”
Moses argues that, contrary to the prosecutor’s statement, P.L.M. never “qualified
and changed her statement” and instead her responses were entirely consistent. As the
Attorney General points out, however, P.L.M. did qualify her response (“not really”)

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when questioned about her feelings toward law enforcement, but she did so both during
the individual questioning and in the subsequent voir dire in open court. Thus, the record
supports the prosecutor’s explanation that P.L.M. qualified her response, although the
record shows he may have been incorrect about whether the qualification was a change
from her response during the individual questioning.
The Attorney General suggests the prosecutor may have “combined these
responses” in his mind, but argues his concern about P.L.M.’s feelings toward law
enforcement was legitimate. We agree. The California Supreme Court has “‘repeatedly
upheld peremptory challenges made on the basis of a prospective juror’s negative
experience with law enforcement.’” (Lenix, supra, 44 Cal.4th at p. 628; Bonilla, supra,
41 Cal.4th at p. 343 [felony conviction of spouse or relative recognized as race-neutral
reason for excusing prospective jurors].) P.L.M’s qualified response regarding her
experience with law enforcement and the fact her son was serving time in prison for a
felony are substantial evidence supporting the trial court’s finding that the prosecutor’s
stated reason for excusing P.L.M. was credible and genuine. Moses offers no evidence
indicating that the prosecutor’s concern about P.L.M. was not sincere or was pretext for
discrimination against female jurors. Accordingly, we will not disturb the trial court’s
finding as to P.L.M.
2. M.G. and B.M.
The prosecutor explained that he excused M.G., a psychiatric nurse, and B.M.,
whom he described as “too close to the psychological stuff, and also substance abuse,”
because he did not want a “hidden expert” on the jury. These were valid reasons to
excuse M.G. and B.M. (See People v. Clark (2011) 52 Cal.4th 856, 907 [fact that
potential juror had taken college courses in psychology was race-neutral reason to excuse
her; as to another prospective juror who was an administrative law judge, prosecutor
could reasonably believe she might exert undue influence during deliberative process].)

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The record confirms that M.G. stated she was a nurse with a specialty in
psychiatry and that B.M. reported she was a mental health recovery specialist managing
the cases of clients who have a “mental health diagnosis with substance abuse.” This is
substantial evidence to support the prosecutor’s explanation and the trial court’s finding
that the prosecutor’s explanation was credible and genuine.
Moses challenges the prosecutor’s explanation for excusing M.G. by minimizing
her experience and knowledge in the mental health field. However, the fact that “the
only training [M.G.] had in this field was that obtained in nursing school” does not tend
to show the prosecutor’s concern about her expertise was implausible, disingenuous, or
pretext for discrimination.
Moses also compares M.G. with impaneled jurors. He notes that Juror
No. 2749474 was a nurse and Juror No. 2840883 was a special education teacher who
worked with severely disabled youths. Although Juror No. 2749474 was a registered
nurse, she worked in the intensive care unit and then in case management, not in
psychiatry. Juror No. 2840883 stated that she worked with children in wheelchairs, many
of whom have cerebral palsy. She reported that the only time she interacts with
psychologists is when a school psychologist is needed for an evaluation. The work and
experience of these jurors was not so similar to M.G.’s as to put into question the
prosecutor’s explanation for excusing M.G. M.G.’s work in outpatient psychiatry
involved handling telephone calls from individuals who “may be in crises” and, among
her duties, she would “alert a physician or law enforcement if maybe the person’s
suicidal.” M.G.’s day-to-day work involved mental health issues; the work of the
impaneled jurors did not. Consequently, Moses’s comparative juror analysis is not
persuasive. (See Lenix, supra, 44 Cal.4th at p. 630.)
3. P.P.M., J.S., and G.B.
The prosecutor said he excused P.P.M., J.S., and G.B. because each had served on
a jury that did not reach a verdict. Moses claims this explanation is “spurious” and

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argues the fact that the panelists being on hung juries says nothing about their personal
ability to deliberate fairly and impartially and is not predicative of how they might vote
on this matter. This argument is unavailing.
“‘The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective
genuineness of the [group]-neutral reasons given for the peremptory challenge, not on the
objective reasonableness of those reasons.’ [Citation.]” (People v. Chism (2014) 58
Cal.4th 1266, 1317.) A prosecutor’s reason may be “arbitrary or idiosyncratic” so long
as it does not deny equal protection. (Lenix, supra, 44 Cal.4th at p. 613.) Here, the
prosecutor explained that it was his practice to remove jurors with prior jury experience
on a hung jury. The genuineness of this explanation is supported by the fact that he
excused at least three panelists who had served on juries that could not reach a verdict.
When the motion was argued, the prosecutor pointed out that the remaining panelists in
the jury box who had prior jury experience had served on juries that reached verdicts.
The trial court found the prosecutor’s explanations credible, and we discern no grounds
for setting this finding aside. We note that Moses does not claim any of the impaneled
jurors served on hung juries.
Moreover, our Supreme Court has recognized that prior jury service on a hung
jury may be a valid reason to excuse a potential juror “[s]ince one who has had such an
experience ‘constitutes a legitimate concern for the prosecution, which seeks a jury that
can reach a unanimous verdict’ [citation] .…” (People v. Farnam (2002) 28 Cal.4th 107,
138.)
4. P.B.
The prosecutor stated that he excused P.B. because “her answer was qualitatively
different from every other juror” with respect to trying juveniles as adults. “She had
reservations.” During voir dire in open court, the prosecutor questioned P.B. as follows:
“Q. Do you have any strong opinions about juveniles being charged as
adults?

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“A. To be honest, no, I believe that’s fine. I just have a problem with—
well, it’s not our duty to [do] the sentencing. I have a problem with them
being [housed] with adults at a young age.
“Q. Okay.
“A. I don’t know how it works. I don’t understand being tried as an
adult, if that means—you know, I just don’t feel—or their IQ I believe has
a—also a—I believe that they know—if they know what they’re doing, but
I don’t believe they should be involved with adults.”
“Q. Okay. Do you think that—well, do you think you’re going to lend
more credence to a defense argument automatically that they’re just not
smart enough, they just don’t understand?
“A. No, that would not affect my opinion or the evidence that I’ve
looked at.”
On appeal, Moses accuses the prosecutor of misrepresenting the record because,
while P.B. “might have believed, for whatever reason, juveniles should not be ‘involved
with adults,’ she never expressed any reservations about a juvenile being tried as an
adult .…” We disagree with Moses’s reading of the record. It appears to us that P.B.’s
answers easily could be understood as showing concern or reservations about treating
juveniles as adults in the criminal justice system. This is a valid, nondiscriminatory
reason to excuse a potential juror. (Cf. People v. Stanley (2006) 39 Cal.4th 913, 939–940
[prosecutor’s perception that potential juror harbored “‘sympathy for the defendant’” was
race-neutral reason for peremptory excusal]; People v. Ledesma (2006) 39 Cal.4th 641,
677–678 [potential juror’s expression of uncertainty whether she could vote to impose
death penalty was valid reason to exercise peremptory challenge, even if insufficient to
justify challenge for cause].) The record provides substantial evidence supporting the
prosecutor’s explanation and the trial court’s finding that the prosecutor’s explanation
was credible and genuine.

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5. P.H.
The prosecutor’s stated reason for excusing P.H. was that “her interactions with
defense counsel was much more friendly, much more open.” He observed that she
smiled and laughed with them, while she seemed more “cold” with him and her answers
were “very curt.”
“A prospective juror may be excused based upon facial expressions, gestures, [or]
hunches” (Lenix, supra, 44 Cal.4th at p. 613), and Moses does not dispute that a
panelist’s friendlier interactions with defense counsel could be a valid reason to excuse
the panelist. Instead, he argues the prosecutor’s proffered excuse “is not supported by the
record.” The record, however, cannot convey whether P.H. smiled or laughed with
defense counsel or appeared cold to the prosecutor. We have reviewed the reporter’s
transcript of the questioning of P.H., and nothing indicates that the prosecutor’s stated
reason for excusing her is untrue. The trial court assessed the prosecutor’s credibility,
“draw[ing] upon its contemporaneous observations of the voir dire” (ibid.), and found the
prosecutor to be credible and sincere. We will not disturb this finding.
6. A.O.
As to A.O., the prosecutor observed that she was 18 or 19 years old and
unemployed. He told the court, “I just didn’t feel for a complicated murder case with
multiple theories, three defendants, mental health defenses, I didn’t feel she had sufficient
life experience that I felt comfortable leaving her as a juror.”
Moses agrees the record supports the prosecutor’s description of A.O., and he does
not dispute that youth and lack of life experience are legitimate reasons to excuse a
prospective juror. He merely points out that Juror No. 2776999 had recently graduated
from college with an associate’s degree in merchandise marketing, “suggesting she
similarly was young and had little life experience.” However, the record does not
affirmatively show that Juror No. 2776999 was a teenager like A.O., although it does
show that she had lived in Los Angeles, graduated from college, and was currently

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employed. This comparative juror analysis does not suggest that the prosecutor’s
explanation for excusing A.O. was disingenuous or pretext for discrimination. We also
note Juror No. 2776999 and A.O. are both women and Moses does not claim A.O. is
Hispanic and, therefore, the comparative juror analysis would not be particularly relevant
even if Juror No. 2776999 and A.O. were more similarly situated.
Given that Moses acknowledges A.O. was young and unemployed, we have no
reason to disturb the trial court’s finding that the prosecutor’s explanation for excusing
her was credible and sincere.
VI. Moses’s sentence
Moses’s conviction for first degree special circumstance murder is punishable by
LWOP or death if committed by an adult. (§ 190.2, subd. (a)(17)(G).) Because he was
17 years old when he committed the offense, Moses was not subject to the death penalty,
and the potential penalties were LWOP or a term of 25 years to life. (§ 190.5, subds. (a)
& (b).)37
Moses contends a sentence of LWOP for a minor constitutes cruel and unusual
punishment. Alternatively, he argues the trial court abused its discretion by imposing
LWOP instead of 25 years to life in prison.
A. Facts
Probation officer Tabitha Raber prepared a report for Moses’s sentencing hearing.
Moses had a prior juvenile adjudication in June 2005 for battery and indecent exposure,
and he was found in violation of probation twice. He admitted culpability for the murder
37 Section 190.5, subdivision (b), provides: “The penalty for a defendant found guilty of
murder in the first degree, in any case in which one or more special circumstances enumerated in
Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age
or older and under the age of 18 years at the time of the commission of the crime, shall be
confinement in the state prison for life without the possibility of parole or, at the discretion of the
court, 25 years to life.”

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but did not submit a written statement. Raber recommended a sentence of LWOP. She
identified no circumstances in mitigation. In her analysis, Raber wrote:
“The term prescribed by law for murder with special circumstances
is … [LWOP]. The presumptive sentence is Life without parole; however,
in circumstances where the defendant is 16 or 17 at the time of the offense,
the Court has the discretion to impose an indeterminate sentence of 25
years to Life if they feel the defendant fits certain criteria such as
immaturity, lacking in family support and/or upbringing and mental
deficiencies. When considering the appropriate disposition in this matter,
all facts were considered. It is recognized [Moses] was a ward of the Court
and placed in numerous group homes during his childhood. Additionally,
[Moses] indicates he suffers from Attention Deficit Disorder and other
mental health issues.
“However, all of these considerations can not overcome the
viciousness and callous nature of the crime. The victim of this crime was
extremely vulnerable based on her advanced age. What makes a further
justification for a sentence of [LWOP] is the fact [Moses] knew his actions
were wrong during the crime as he dragged the victim into another room to
avoid being caught in the act. Furthermore, both [Moses and Nash] admit
they heard the victim pleading for mercy; however, [Moses] continued to
strike the victim ultimately causing her death. When all of these factors are
evaluated and weighed, it is felt the appropriate sentence is [LWOP].”
(Italics added.)
At the sentencing hearing on October 25, 2012, his attorney asked the court to give
Moses “hope” by giving him the possibility of parole. He stated that Moses had a “tragic
upbringing” with physical, emotional, and verbal abuse growing up, and he had a low IQ
and various disorders. Moses’s attorney cited Miller and Graham and argued the cases
show “the importance of realizing that we’re dealing with juveniles, and juveniles are not
as developed as adults.”
The trial court stated, “Section 190.5, subdivision (b) differs from the mandatory
schemes that are found unconstitutional in Miller because it gives the court the discretion
to impose a term that affords the possibility of parole in lieu of an LWOP sentence. And

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that’s what we’re doing here today. [¶] … [¶] We’re trying to weigh the various
factors.” (Italics added.)
The prosecutor urged the court to impose LWOP. He stated that Moses had
molested his cousin. He argued that Moses showed no concern about Session and he also
did not care about how the murder impacted Session’s family. He noted that Masengale,
who found Session after she had been beaten, had PTSD from the experience. The
prosecutor argued Moses demonstrated “an utter lack of remorse or concern” at trial, and
asserted, “The horror and magnitude of this crime demands [LWOP], his lack of
concern.”
The trial court imposed LWOP. In doing so, the court cited a very recent Court of
Appeal case, People v. Gutierrez.38 The court stated that the case was similar “in the
horrific nature of the crime that was committed”—a minor stabbed his aunt 28 times and
attempted to sexually assault her. The court described the appellate case: “[I]t’s
provided in that case that the sentencing statute for 16- or 17-year-olds convicted of
special circumstance murder requires a proper exercise of discretion in choosing whether
to grant leniency and impose a lesser penalty of 25 years to life, which, of necessity,
involves an assessment of what, in logic, would mitigate or not mitigate the crime.”
(Italics added.)
The court then described the “extremely brutal, savage, and cowardly beating” of
Session, and the pathologist’s testimony of Session’s injuries. The court considered
Middleton’s psychological evaluation of Moses. It noted there was no evidence of
mental retardation and that Moses had attention deficit disorder and “impulsive control
disorder, explosive temper, and assaultive and violent conduct, and prior reports of that.”
The court further explained:
38 The California Supreme Court later granted review and the appellate decision was
superseded by Gutierrez, supra, 58 Cal.4th 1354.

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“I’ve thought long and hard about what punishment would be
appropriate, and I’m absolutely convinced at this stage that [LWOP] is the
only thing this Court can do that would redress the amount of violence that
was inflicted on Miss Session.
“There’s been no showing that there is a categorical ban of LWOP
sentences for juveniles that’s required under the Eighth Amendment.
“We have in this case determined that the amount of violence that
was inflicted … is totally inexplicable. There’s been, as the prosecutor
points out, a devastation to her family, her children. No amount of time
could be imposed as a punishment that would repay the damages caused,
not only to the family, but those close around her.
“And, as I say, I am aware and I have weighed the factors, exercised
discretion, and I feel that it would be inappropriate to impose the more
lenient possible sentence.” (Italics added.)
The court went on to find no circumstances in mitigation and the following
aggravating circumstances: (1) the crime involved “a high degree of cruelty, viciousness,
and callousness,” (2) the victim was particularly vulnerable, (3) Moses was on juvenile
probation when the crime was committed, and (4) his performance on juvenile probation
was unsatisfactory.
B. Analysis
1. The prohibition against cruel and/or unusual punishment does not
categorically ban LWOP for minors convicted of murder
Moses’s first contention is that the imposition of LWOP on a juvenile offender is
prohibited as cruel and unusual punishment. After the parties completed briefing in this
appeal, however, this court “reject[ed] the notion … an LWOP term cannot properly be
imposed under California law or the Eighth Amendment.” (Palafox, supra, 231
Cal.App.4th at p. 90.) In doing so, we observed that the California Supreme Court had
implicitly rejected this contention in Gutierrez, supra, 58 Cal.4th 1354, by remanding
two cases for resentencing under section 190.5, subdivision (b). (Palafox, supra, at
p. 90.) Similarly, the United States Supreme Court has not foreclosed the possibility of

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imposing LWOP for a minor convicted of a homicide. (Miller, supra, 567 U.S. ___ [132
S.Ct. at p. 2471].) Following Palafox, we reject Moses’s first contention.
2. The matter must be remanded for resentencing under Gutierrez
Next, Moses argues the trial court abused its discretion by imposing LWOP
instead of 25 years to life in prison. We will remand the matter for resentencing because,
at the time of sentencing, the trial court did not have the benefit of Gutierrez, supra, 58
Cal.4th 1354, in which our high court construed section 190.5 in light of Miller, supra,
567 U.S. ___ [132 S.Ct. 2455].
In Gutierrez, the court recognized that section 190.5, subdivision (b), had long
been understood as establishing a presumption in favor of LWOP for juveniles convicted
of special circumstance murder. (Gutierrez, supra, 58 Cal.4th at p. 1369.) Given
Miller’s reasoning, however, “a sentence of life without parole under section 190.5[,
subdivision ](b) would raise serious constitutional concerns if it were imposed pursuant
to a statutory presumption in favor of such punishment.” (Gutierrez, supra, at p. 1379.)
Instead, the court held that section 190.5, subdivision (b), confers discretion on a
sentencing court to impose LWOP or 25 years to life with no presumption in favor of
LWOP. (Gutierrez, supra, at p. 1387.)
In addition, based on the discussion in Miller, the Gutierrez court held that a
sentencing court is required to consider the following:
“First, a court must consider a juvenile offender’s ‘chronological age
and its hallmark features—among them, immaturity, impetuosity, and
failure to appreciate risks and consequences.’ [Citations.] Miller observed
that ‘“developments in psychology and brain science continue to show
fundamental differences between juvenile and adult minds,”’ and that
‘those findings—of transient rashness, proclivity for risk, and inability to
assess consequences—both lessened a child’s “moral culpability” and
enhanced the prospect that, as the years go by and neurological
development occurs, his “‘deficiencies will be reformed.’”’ [Citations.] …
“Second, a sentencing court must consider any evidence or other
information in the record regarding ‘the family and home environment that

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surrounds [the juvenile]—and from which he cannot usually extricate
himself—no matter how brutal or dysfunctional.’ [Citation.] Relevant
‘environmental vulnerabilities’ include evidence of childhood abuse or
neglect, familial drug or alcohol abuse, lack of adequate parenting or
education, prior exposure to violence, and susceptibility to psychological
damage or emotional disturbance. [Citation.]
“Third, a court must consider any evidence or other information in
the record regarding ‘the circumstances of the homicide offense, including
the extent of [the juvenile defendant’s] participation in the conduct and the
way familial and peer pressures may have affected him.’ [Citations.] Also
relevant is whether substance abuse played a role in the juvenile offender’s
commission of the crime. [Citation.]
“Fourth, a court must consider any evidence or other information in
the record as to whether the offender ‘might have been charged and
convicted of a lesser offense if not for incompetencies associated with
youth—for example, his inability to deal with police officers or prosecutors
(including on a plea agreement) or his incapacity to assist his own
attorneys. [Citations.]’ [Citation.]
“Finally, a sentencing court must consider any evidence or other
information in the record bearing on ‘the possibility of rehabilitation.’
[Citations.] The extent or absence of ‘past criminal history’ is relevant
here. [Citation.]” (Gutierrez, supra, 58 Cal.4th at pp. 1388–1389.)
Gutierrez involved the consolidated appeals of two 17-year-old offenders, each
convicted of special circumstances murder and sentenced to LWOP. (Gutierrez, supra,
58 Cal.4th at p. 1360.) The Supreme Court remanded both cases for resentencing,
concluding:
“Juveniles who commit crimes that reflect impetuosity,
irresponsibility, inability to assess risks and consequences, vulnerability to
peer pressure, substance abuse, or pathologies traceable to an unstable
childhood cannot and should not escape punishment. And when the crime
is ‘a vicious murder,’ it is ‘beyond question’ that a juvenile offender
‘deserve[s] severe punishment.’ [Citation.] Because [the two defendants]
have been convicted of special circumstance murder, each will receive a
life sentence. (§ 190.5[, subd. ](b).) The question is whether each can be
deemed, at the time of sentencing, to be irreparably corrupt, beyond
redemption, and thus unfit ever to reenter society, notwithstanding the
‘diminished culpability and greater prospects for reform’ that ordinarily

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distinguish juveniles from adults. [Citation.] Because the trial courts here
decided that question without proper guidance on the sentencing discretion
conferred by section 190.5[, subdivision ](b) and the considerations that
must inform the exercise of that discretion, we remand both cases for
proceedings not inconsistent with this opinion.” (Gutierrez, supra, 58
Cal.4th at pp. 1391–1392.)
Here, the trial court likewise decided Moses’s sentence “without proper guidance
on the sentencing discretion conferred” by section 190.5, subdivision (b). (Gutierrez,
supra, 58 Cal.4th at p. 1391.) Accordingly, we will vacate Moses’s sentence and remand
to the trial court for consideration of whether Moses “can be deemed, at the time of
sentencing, to be irreparably 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.” (Ibid.)
VII. Joinder
Nash and Moses join in and adopt the other’s arguments pursuant to
rules 8.200(a)(5) and 8.360(a). We conclude Nash’s arguments do not benefit Moses
and, likewise, Moses’s arguments do not benefit Nash.

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DISPOSITION
As to Nash, the special circumstance finding under section 190.2,
subdivision (a)(17)(G), is reversed and the trial court is directed to prepare a new abstract
of judgment. The judgment is otherwise affirmed but, in light of Franklin, supra, 63
Cal.4th at page 269, we remand the matter to the trial court for the limited purpose of
determining whether Nash was afforded sufficient opportunity to make a record of
information relevant to her eventual youth offender parole hearings and, if not, to afford
her that opportunity. As to Moses, the matter is remanded to the trial court for
resentencing in light of Gutierrez, supra, 58 Cal.4th 1354. In all other respects, Moses’s
judgment is affirmed.
___________________________
KANE, Acting P.J.
WE CONCUR:
__________________________
POOCHIGIAN, J.
__________________________
PEÑA, J.

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