P. v. Ruelas

Filed 11/14/17 P. v. Ruelas CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS ALFONSO RUELAS,
Defendant and Appellant.
H042776
(Santa Clara County
Super. Ct. No. C1231089)
I. INTRODUCTION
A jury convicted defendant Jesus Alfonso Ruelas of first degree murder (Pen.
Code, § 187, subd. (a))1 and found true an allegation that he personally and intentionally
discharged a firearm and proximately caused the death of Chanel Munoz (§ 12022.53,
subds. (b), (c), & (d)) and an allegation that he committed the murder for the benefit of or
in association with a criminal street gang (§ 186.22, subd. (b)(5)). The trial court
sentenced defendant to an indeterminate term of 25 years to life for the murder with a
consecutive indeterminate term of 25 years to life for the section 12022.53,
subdivision (d) allegation.
On appeal, defendant contends the trial court made three instructional errors:
(1) giving an instruction on fabrication of evidence; (2) failing to instruct on involuntary
manslaughter based on unconsciousness due to voluntary intoxication; (3) failing to
1 All further statutory references are to the Penal Code.

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instruct that the motive instruction did not apply to the gang allegation. Defendant also
contends that the judgment must be conditionally reversed and remanded to the juvenile
court for a transfer hearing in accordance with Proposition 57, the Public Safety and
Rehabilitation Act of 2016. Finally, defendant contends that his sentence of 50 years to
life constitutes cruel and unusual punishment.
For the reasons stated below, we find no merit to defendant’s claims of trial court
error with respect to jury instructions, nor to his claim that he is entitled to a transfer
hearing under Proposition 57. And while we find no merit to defendant’s cruel and
unusual punishment claim, we do find that he is entitled to a limited remand so the trial
court can determine whether defendant had an adequate opportunity to make an accurate
record of his circumstances and characteristics at the time of his offense, in anticipation
of a future youth offender parole hearing. We will therefore affirm the judgment and
order a limited remand.
II. BACKGROUND
A. The Shooting
On February 28, 2010, Chanel Munoz went to a party with her friend Justina
Acuna. At some point, Munoz and Acuna left the party to go for a walk. Munoz was
wearing a 49ers shirt.
As they walked, Munoz and Acuna passed by a group of people who began
following them and trying to talk to them. In order to get away, Munoz and Acuna went
into a taqueria. However, when they left the taqueria about five minutes later, two males
from the group were waiting for them.
The two males got in front of Munoz and Acuna, causing them to stop walking.
The males were “saying stuff” to the women. One of the males twisted a cell phone out
of Acuna’s hand. Acuna and Munoz tried to get away from the males, but one of the
males pulled out a gun and pointed it at Munoz. Acuna shouted Munoz’s name, and the

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male fired two or three gunshots at Munoz. Acuna wanted to run to Munoz, but the male
pointed the gun at Acuna. Both males then “took off running.” As they ran, they yelled
out “VPLs” and “sur trece.”
Acuna ran over to Munoz, who was on the ground. A passerby stopped and took
both Munoz and Acuna to the hospital, where Munoz was pronounced dead. Munoz had
two gunshot wounds: in her forehead and in her back.
At the hospital, Acuna worked with a police sketch artist to draw a sketch of the
shooter. She described the shooter as being about five feet, six inches to five feet, seven
inches tall. At the time, defendant was five feet, 11 inches tall and weighed 200 pounds.
In 2012, Acuna viewed a photographic lineup, which contained a photograph of
defendant, but she did not pick out anyone “for sure.” When she saw defendant at the
preliminary hearing and at trial, he looked familiar, despite the fact that he had a different
hairstyle and was wearing glasses. Defendant reminded Acuna of the shooter because of
the shape of his head and the acne on his face. She identified a photograph of defendant
taken a few weeks before the shooting, saying defendant looked similar to the shooter.
B. Defendant’s Interviews and Telephone Calls
On April 24, 2012, defendant was in the Witness Relocation Program. He agreed
to talk with investigators from the Santa Clara County District Attorney’s Office.
Defendant admitted being present during the Munoz shooting, but he claimed that
Hector Garcia—who was subsequently killed—had committed the shooting. Defendant
said that he and Garcia had been “drunk, very drunk” after coming from a party hosted by
another gang member. They walked towards the girls, one of whom was wearing a red
shirt, and one of the girls looked at them. Garcia then began “talking shit.” Munoz tried
to slap Garcia, who then shot her with a .22-caliber gun. During the incident, Garcia said
“Sur or Sur Tre[ce],” the name of a rival gang.
Later in the interview, defendant changed his story, saying that Garcia had been
present but that fellow gang member Joseph Antuna was the shooter. Then, after being

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shown the sketch of the shooter, defendant admitted he had shot Munoz. In response to a
question about what happened, defendant said, “Oh it’s just that we were drunk.” He
reiterated, “I was really drunk.” He explained, “I was just drunk. I wasn’t thinking about
anything.”
Defendant told the investigators that he had obtained the gun “from the gang.”
Asked again his reason for the shooting, defendant replied, “I don’t know, it wasn’t no
reason. I think I shot her for myself and that’s what it was. Sense of security. That was
just me trying to prove myself to everybody and then that happened.”
Defendant expressed concern that his family would be kicked off the Witness
Relocation Program. He called his mother, telling her he was being arrested for a
homicide and instructing her where to find his phone in his room. Defendant told the
investigators that on the morning after the shooting, he had told his mother that he had
“fucked up bad.”
Defendant then called his father, explaining that he was being arrested because
“we shot someone up.” He said he did not want to “tell lies anymore” and expressed a
hope that the police would help him. He instructed his father to retrieve his cell phone
from a stove fixture in his room and to give the phone to “Junior.”
Defendant later called his mother from jail. He first spoke to someone named
Karla, telling her he was in jail because he “did something bad a long time ago.” When
asked why, defendant said, “Because I was dumb.” When his mother later asked if
defendant “did it,” defendant responded, “Yes.”
Defendant was interviewed a second time. During that interview, defendant said
he had been “[h]eavily drinking” at a party and was “out of my mind drunk.” He did not
normally drink much, but he had been drinking “shot after shot.”
After leaving the party, defendant and Garcia had followed Munoz and Acuna,
trying to talk to them. Defendant then “kinda like blacked out” due to being so drunk.

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He “wanted to prove [him]self” because he felt that he “wasn’t accepted enough by the
gang,” so he shot Munoz.
Defendant described his location near the taqueria and the direction he was facing.
He described the victims’ clothing, recalling that Munoz was wearing a red 49ers
sweatshirt and that Acuna was wearing a black top. He described his own clothing: a
black and white Pendleton and a Pittsburgh Pirates’ hat. He recalled that Garcia had been
doing most of the talking and that David Fruitus was present during the incident. He
remembered that Munoz was “getting aggressive” and saying things like, “Back the fuck
up.” He specified where he had carried the gun (inside his left pants leg) and that when
he shot the gun, the first round did not fire. He described running to a friend’s house
after the shooting.
Defendant acknowledged being a fifth-generation member of the El Hoyo Palmas
(a Norteño gang) and having the moniker Chuco. He admitted saying “Sur Trece” after
the shooting—a reference to Sureños, rivals of Norteños—so that he would not get
caught.
Defendant initially claimed he did not shoot at Munoz “with the intention of
hitting anybody.” He claimed he did not remember what was on his mind, explaining, “I
don’t think I was thinkin’. I was just acting on impulse.” However, he also
acknowledged that his thought process at the time included “[s]hooting her.” He claimed
he “didn’t want to kill her,” but he acknowledged there was “a likelihood” of that
happening.
At the end of the interview, defendant wrote a letter to Munoz’s family,
apologizing and noting that he “wasn’t [him]self at all due to drinking” on the night of
the shooting.
C. Gang Expert Testimony
Michael Whittington, a gang investigator for the Santa Clara County District
Attorney’s Office, testified as the prosecution’s gang expert. He discussed gang terms

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and activities such as being “jumped in” to a gang and “putting in work” (doing crimes)
for a gang. He explained that respect is synonymous with fear in gang culture, and that it
is the “most important element” of gang life. He explained that violence benefits a gang
because it ensures that community members and gang rivals will leave the gang alone and
not report gang crimes. He described the signs and symbols of the Norteño and Sureño
gangs and the history of the El Hoyo Palmas gang.
Investigator Whittington testified that in his opinion, the primary activities of the
El Hoyo Palmas gang were “[t]he carrying of illegal firearms in public, concealed on
their person, murder, assault with a deadly weapon, robbery.” He discussed three
predicate offenses (see § 186.22, subd. (e)). First, on June 24, 2009, four El Hoyo
Palmas gang members were contacted by police and found to be in possession of two
firearms. Second, on May 31, 2009, an El Hoyo Palmas gang member challenged the
victim by calling him a “Scrapa,” held a knife to the victim’s throat, and stabbed the
victim. Third, on May 21, 2008, two El Hoyo Palmas gang members confronted some
Sureño gang members, and one of the El Hoyo Palmas gang members shot two of the
Sureños.
Investigator Whittington believed defendant was a member of the El Hoyo Palmas
gang. Defendant had been the victim of a stabbing and had testified in the stabber’s case,
admitting his membership in the El Hoyo Palmas gang. Defendant also had gang-related
tattoos and had been associating with El Hoyo Palmas gang members at the time of the
shooting and on other occasions.
Given a hypothetical mirroring the facts of the Munoz shooting, Investigator
Whittington opined that such a shooting would have been committed for the benefit of a
criminal street gang because it involved “disrespect” being “met with violence.” Gang
members are expected to defend fellow gang members who are being subjected to
aggression, and the shooting would show that the shooter was “willing to do violence on
behalf of the gang.” The crime would also be considered “putting in work” for the gang.

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Also, calling out the name of a rival gang after the shooting would benefit the shooter’s
gang by giving the rival gang a negative connotation. The shooting would also be
committed in association with a criminal street gang, since another gang member was
involved.
D. Defense Case
Jeremiah Garrido, a criminalist from the Santa Clara County Crime Laboratory,
analyzed Munoz’s fingernail scrapings for DNA and identified an unknown male as a
minor contributor. Defendant was excluded as a possible contributor to the minor DNA.
Defendant testified that he was 17 years old in February 2010. He admitted he
was in the El Hoyo Palmas gang. He became a gang member about a year earlier,
because all his childhood friends were in that gang.
Defendant had previously admitted to robbery and grand theft charges in juvenile
court. He had committed those crimes with other gang members.
Defendant and his family had entered the Witness Relocation Program after he
was stabbed for cooperating with the police regarding Garcia’s death. That program
required that he cooperate with law enforcement and tell the truth when speaking to law
enforcement; failure to do so would result in being “kicked out of the program.”
Defendant believed that if he was kicked out of the program, he would “get probably
killed,” and his family would get hurt.
Defendant denied shooting Munoz. On the night of the shooting, he had gone to a
house party with other members of the El Hoyo Palmas gang. At the party, he was
drinking liquor. He left the party with a group of people and went to the home of
Michael Trujillo. The group stood in front of the house, talking, when two girls walked
by. Garcia and Fruitas said something to the girls. The girls kept walking, with Garcia
and Fruitas following them. Defendant and a few others went along, and they all ended
up at the taqueria, where Garcia and Fruitas continued to talk to the girls.

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Defendant could tell that the conversation was not going well and that the girls
were getting mad or excited. Antuna then walked over and tried to intervene. Munoz
said something to Antuna, who then shot her and called out “Sur trece” as the group ran
away. When defendant got home, he told his mother that “something crazy” had just
happened. He was “freaked out.”
When defendant talked with the investigators, he initially failed to implicate
Antuna, who he considered a friend. He decided to “blame the dead guy,” Garcia. He
named Antuna after the investigators said they did not believe him. He then blamed
himself because he thought the investigators still did not believe him, and that he would
be terminated from the Witness Relocation Program if they thought he was not telling the
truth. In the subsequent calls he made to his family, he wanted to sound “believable” in
case the investigators asked his family members questions.
E. Convictions and Sentence
As previously noted, a jury convicted defendant of first degree murder (§ 187,
subd. (a)) and found true an allegation that he personally and intentionally discharged a
firearm and proximately caused Munoz’s death (§ 12022.53, subds. (b), (c), & (d)) and an
allegation that he committed the murder for the benefit of or in association with a
criminal street gang (§ 186.22, subd. (b)(5)). The trial court sentenced defendant to an
indeterminate term of 25 years to life for the murder with a consecutive indeterminate
term of 25 years to life for the section 12022.53, subdivision (d) allegation.
III. DISCUSSION
A. Instruction on Fabrication of Evidence
Defendant contends the trial court erred by giving an instruction on fabrication of
evidence, because there was no substantial evidence that he attempted to fabricate
evidence. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129 [“It is error to give an
instruction which, while correctly stating a principle of law, has no application to the

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facts of the case”].) Defendant asserts there was no evidence he asked someone to lie for
him, as the defendant did in People v. Rodrigues (1994) 8 Cal.4th 1060, 1139, nor any
evidence “that he created any kind of false physical evidence.”
The challenged instruction—CALCRIM No. 371—provided as follows: “If the
Defendant tried to create false evidence, that conduct may show that he was aware of his
guilt. If you conclude that the Defendant made such an attempt, it’s up to you to decide
its meaning and importance. However, evidence of such an attempt cannot prove guilt by
itself.”
Anticipating the Attorney General’s argument that he forfeited this claim by
failing to object, defendant asserts that he may raise the claim on appeal because it
affected his substantial rights. (See § 1259 [an appellate court may “review any
instruction given, refused or modified, even though no objection was made thereto in the
lower court, if the substantial rights of the defendant were affected thereby”]; People v.
Cage (2015) 62 Cal.4th 256, 285 [addressing challenges to flight instruction despite lack
of objection].) Alternatively, defendant contends his trial counsel was ineffective for
failing to lodge an objection to the instruction.
Whether we review defendant’s claim of instructional error under section 1259 or
under the rubric of his claim of ineffective assistance of counsel, we must determine
whether any error was prejudicial. (See People v. Ramos (2008) 163 Cal.App.4th 1082,
1087; Strickland v. Washington (1984) 466 U.S. 668, 695, 697 (Strickland).) Thus, even
if we assume the instruction was not supported by substantial evidence, we would need to
determine whether there is a reasonable probability that the result of defendant’s trial
would have been different had the trial court not given an instruction on fabrication of
evidence. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); Strickland, supra, at
p. 695.)
As the Attorney General points out, a number of factors show that defendant was
not prejudiced by the instruction on fabrication of evidence. First, the challenged

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instruction was not mentioned during closing arguments, and the prosecutor did not argue
that defendant fabricated evidence or that the jury should infer his guilt on that basis.
Second, the challenged instruction makes it clear that the jury was to determine “[i]f”
defendant tried to fabricate evidence; the instruction did not suggest that there was
evidence defendant did, in fact, try to fabricate evidence. Third, the jury was instructed
that “[s]ome of the[] instructions may not apply” and that jurors should not “assume” that
by giving a particular instruction, the trial court was “suggesting anything about the facts
or evidence in this case.” (See CALCRIM No. 200) Fourth, the evidence that defendant
committed the shooting was very strong. Acuna identified defendant as looking like the
shooter, and defendant admitted being the shooter during two police interviews. He also
indicated his responsibility for the shooting during phone calls to family members. No
reasonable jury could find credible defendant’s testimony about making false admissions
during those interviews in order to stay in the Witness Relocation Program. (See People
v. Houston (2005) 130 Cal.App.4th 279, 298.)
In sum, on this record, there is no reasonable probability that the result of
defendant’s trial would have been different had the trial court not given an instruction on
fabrication of evidence. (Watson, supra, 46 Cal.2d at p. 836; Strickland, supra, at
p. 695.) Any error was also harmless beyond a reasonable doubt because the instruction
“did not contribute to” defendant’s conviction. (Chapman v. California (1967) 386 U.S.
18, 24, 26 (Chapman).)
B. Failure to Instruct on Involuntary Manslaughter
Defendant contends the trial court erred by failing to instruct on involuntary
manslaughter based on unconsciousness due to voluntary intoxication. He contends the
trial court had a sua sponte duty to instruct the jury with CALCRIM No. 626.2
2 CALCRIM No. 626 provides: “Voluntary intoxication may cause a person to be
unconscious of his or her actions. A very intoxicated person may still be capable of
physical movement but may not be aware of his or her actions or the nature of those

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“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence. . . . That obligation has been held to include giving instructions on lesser
included offenses when the evidence raises a question as to whether all of the elements of
the charged offense were present . . . .” ’ ” (People v. Breverman (1998) 19 Cal.4th 142,
154-155.) “ ‘Substantial evidence’ in this context is ‘ “evidence from which a jury
composed of reasonable [persons] could . . . conclude[ ]” ’ that the lesser offense, but not
the greater, was committed. [Citations.]” (Id. at p. 162.)
“When a person renders himself or herself unconscious through voluntary
intoxication and kills in that state, the killing is attributed to his or her negligence in self-
intoxicating to that point, and is treated as involuntary manslaughter. . . .
Unconsciousness for this purpose need not mean that the actor lies still and unresponsive:
section 26 describes as ‘[in]capable of committing crimes . . . [¶] . . . [¶] . . . [p]ersons
who committed the act . . . without being conscious thereof.’ (Italics added.) Thus
unconsciousness ‘ “can exist . . . where the subject physically acts in fact but is not, at the
time, conscious of acting.” ’ [Citations.]” (People v. Ochoa (1998) 19 Cal.4th 353, 423-
424.)
actions. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by
willingly using any intoxicating drug, drink, or other substance knowing that it could
produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] When a
person voluntarily causes his or her own intoxication to the point of unconsciousness, the
person assumes the risk that while unconscious he or she will commit acts inherently
dangerous to human life. If someone dies as a result of the actions of a person who was
unconscious due to voluntary intoxication, then the killing is involuntary manslaughter.
Involuntary manslaughter has been proved if you find beyond a reasonable doubt that:
[¶] 1. The defendant killed without legal justification or excuse; [¶] 2. The defendant
did not act with the intent to kill; [¶] 3. The defendant did not act with a conscious
disregard for human life; [¶] AND [¶] 4. As a result of voluntary intoxication, the
defendant was not conscious of (his/her) actions or the nature of those actions. [¶] The
People have the burden of proving beyond a reasonable doubt that the defendant was not
unconscious. If the People have not met this burden, you must find the defendant not
guilty of (murder/ [or] voluntary manslaughter).”

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According to defendant, his statements to police provided substantial evidence of
his unconsciousness due to voluntary intoxication. He notes that he told the investigators
that he had been “really drunk” at the time of the shooting; that he drank “shot after shot”
and was “out of my mind drunk;” that he had “kinda like blacked out;” and that he did
not remember what he was thinking and was “acting on impulse.”
Defendant relies on two cases finding that instructions on unconsciousness should
have been given, although neither case involved evidence of voluntary intoxication. In
the first case, People v. Moore (1970) 5 Cal.App.3d 486 (Moore) the court concluded that
an instruction on unconsciousness should have been given, sua sponte, where the
defendant had multiple commitments to mental hospitals prior to the shooting, and an
expert testified that the defendant was in a “ ‘schizophrenic fugue state’ ” when he shot
the victim and that “his acts were ‘an automatic reaction without consideration.’ ” (Id. at
p. 492.) In the second case, People v. Bridgehouse (1956) 47 Cal.2d 406 (Bridgehouse)3
the defendant had requested an unconsciousness instruction based on evidence showing
that he had suffered “a great shock” upon seeing the victim (id. at p. 413) and his
testimony that he shot the victim while in “a haze of mental void” (id. at p. 410).
Neither Moore nor Bridgehouse are similar to the instant case. Here there was no
expert testimony supporting an unconsciousness finding and no evidence that defendant
was in a mental state akin to “a haze of mental void.” (Bridgehouse, supra, 47 Cal.2d at
p. 410.) The evidence instead shows that defendant was able to remember numerous
details of the shooting, including what Munoz was wearing, what he was wearing, who
was present, where he carried the gun, and what Munoz said just before he shot her.
Defendant also gave various reasons for the shooting that conflicted with a finding of
unconsciousness, saying he shot Munoz because he was “trying to prove [him]self to
everybody” and because he felt that he “wasn’t accepted enough by the gang.” In
3 Bridgehouse was abrogated on other grounds by People v. Lasko (2000)
23 Cal.4th 101, 110.

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addition, defendant was able to think strategically immediately after the shooting: he
shouted the slogan of a rival gang in order to not get caught. On this record, substantial
evidence supports the trial court’s implied finding that defendant “did not lack awareness
of his actions during the course of the offenses.” (See People v. Halvorsen (2007)
42 Cal.4th 379, 418 (Halvorsen).)
Any error in failing to instruct on involuntary manslaughter based on
unconsciousness due to voluntary intoxication was also harmless, whether analyzed
under Watson or Chapman. (See People v. Beltran (2013) 56 Cal.4th 935, 955 [in
noncapital cases, Watson provides the standard of prejudice for a trial court’s failure to
give sua sponte instructions on lesser included offenses supported by the evidence];
cf. People v. Thomas (2013) 218 Cal.App.4th 630, 644 [“Failure to instruct the jury on
heat of passion to negate malice is federal constitutional error requiring analysis for
prejudice under Chapman.”].)
First, “ ‘the factual question posed by the omitted instruction was necessarily
resolved adversely to the defendant under other, properly given instructions.’ ” (People
v. Berry (1976) 18 Cal.3d 509, 518.) The trial court instructed the jury that defendant’s
voluntary intoxication could be considered in determining whether defendant acted with
an intent to kill and in determining whether he acted with deliberation and premeditation.
(See CALCRIM No. 625.)4 Thus, the jury had the opportunity to find that defendant did
not have the mental states required for first degree murder as a result of voluntary
intoxication, but the jury did not make such findings. (See People v. Boyer (2006)
4 As given, the instruction provided: “You may consider evidence, if any, of the
defendant’s []voluntary intoxication only in a limited way. You may consider that
evidence only in deciding whether the defendant acted with an intent to kill or the
defendant acted with deliberation and premeditation. [¶] A person is voluntarily
intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug,
drink, or other substance knowing that it could produce an intoxicating effect, or
willingly assuming the risk of that effect. [¶] You may not consider evidence of
voluntary intoxication for any other purpose.”

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38 Cal.4th 412, 475 [any error in instruction on intent required for involuntary
manslaughter was harmless where jury was given “with multiple opportunities to absolve
defendant of crimes involving specific intent . . . on the basis of his impaired mental state
produced by voluntary intoxication”]; People v. Rogers (2006) 39 Cal.4th 826, 884
[failure to instruct on involuntary manslaughter was harmless where jury convicted
defendant of first degree premeditated murder despite instructions on lesser included
offenses that required “higher degrees of culpability” than involuntary manslaughter]; cf.
People v. Ramirez (2010) 189 Cal.App.4th 1483, 1488 [conviction of first degree murder
does not show jury necessarily rejected a finding that defendant acted in heat of
passion].)
Second, as noted above, the evidence did not support a finding that defendant was
legally unconscious at the time of the shooting. Defendant was able to remember
numerous details of the shooting, and his stated reasons for the shooting conflicted with a
finding of unconsciousness. The evidence did not show that defendant lacked
“awareness of his actions” at the time of the shooting. (See Halvorsen, supra, 42 Cal.4th
at p. 418.) Rather, the evidence showed that defendant engaged in “purposive” conduct
in responding to Munoz’s perceived disrespect by shooting at Munoz multiple times and
then referencing the slogan of a rival gang in order to not get caught. (See ibid.)
In light of the instructions and evidence in this case, there is no reasonable
probability that the result of defendant’s trial would have been different had the trial court
given an instruction on involuntary manslaughter due to voluntary intoxication. (Watson,
supra, 46 Cal.2d at p. 836.) Any error was also harmless beyond a reasonable doubt
because the trial court’s failure to give an instruction on involuntary manslaughter due to
voluntary intoxication “did not contribute to” defendant’s first degree murder conviction.
(Chapman, supra, 386 U.S. at p. 26.)

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C. Motive Instruction – Gang Allegation
Defendant contends the trial court erred by failing to instruct the jury that the
motive instruction—CALCRIM No. 370—did not apply to the gang allegation (§ 186.22,
subd. (b)(5)). Defendant claims that “motive is one of the elements of the [gang]
allegation” and thus the trial court should either have “refrained from instructing the jury
with CALCRIM [No.] 370 altogether” or “inserted language excluding the gang
enhancement from its purview.”
As given, CALCRIM No. 370 provided as follows: “The People are not required
to prove that the Defendant had a motive to commit any of the crimes charged. In
reaching your verdict, you may, however, consider whether the Defendant had a motive.
Having a motive may be a factor tending to show the Defendant is guilty. Not having a
motive may be a factor tending to show the Defendant is not guilty.”
CALCRIM No. 1401, the jury instruction on the gang allegation, told the jury that
in order to find the allegation true, the jury had to find beyond a reasonable doubt that
defendant committed the crime “for the benefit of, or in association with a criminal street
gang” and that he “intended to assist, further, or promote criminal conduct by gang
members.”
Defendant acknowledges that the argument he is making was rejected in People v.
Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes). (See also People v. Garcia (2016) 244
Cal.App.4th 1349, 1364.) The Fuentes court disagreed with the premise that “[a]n intent
to further criminal gang activity” is a motive rather than a type of specific intent.
(Fuentes, supra, at p. 1139.) That court distinguished “the common-sense concept of a
motive,” i.e., “[a]ny reason for doing something” (id. at p. 1140), from “a ‘motive’ ” in
legal terms (id. at p. 1139), and noted, “We do not call a premeditated murderer’s intent
to kill a ‘motive,’ though his action is motivated by a desire to cause the victim’s death.”
(Ibid.) Our Supreme Court has also explained that “[m]otive describes the reason a
person chooses to commit a crime,” which “is different from a required mental state such

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as intent or malice.” (People v. Hillhouse (2002) 27 Cal.4th 469, 504 (Hillhouse); see
also People v. Cash (2002) 28 Cal.4th 703, 739 [not error to give motive instruction
where defendant was charged with a robbery-murder special circumstance].)
The Fuentes and Hillhouse courts both distinguished People v. Maurer (1995)
32 Cal.App.4th 1121 (Maurer), on which defendant also relies. (Fuentes, supra,
171 Cal.App.4th at p. 1140; Hillhouse, supra, 27 Cal.4th at p. 504.) In Maurer, the court
considered whether it was error to give the standard motive instruction in a prosecution
for multiple counts of annoying a child in violation of section 647.6. The court noted that
“the offense of section 647.6 is a strange beast” (Maurer, supra, at p. 1126), in that it
requires the prosecution to “show that the acts or conduct ‘were motivated by an
unnatural or abnormal sexual interest’ ” (id. at p. 1127). Because the jury had been told
both that such a motivation was required but also that motive was not an element of the
crime, the court concluded that jurors were likely to be confused and thus that the trial
court had erred by not excluding the section 647.6 offenses from the motive instruction,
CALJIC No. 2.51. (Maurer, supra, at p. 1127.)
The instant case does not involve an alleged violation of section 647.6 but a gang
enhancement. We agree with Fuentes that motive is not an element of section 186.22,
subdivision (b), and we find Maurer distinguishable. We conclude the trial court did not
err by instructing the jury with CALCRIM No. 370.
D. Proposition 57
Defendant contends that the judgment must be conditionally reversed and
remanded to the juvenile court for a transfer hearing in accordance with Proposition 57,
the Public Safety and Rehabilitation Act of 2016.
As defendant points out, he was 17 years old at the time of the shooting but he was
charged as an adult under former Welfare and Institutions Code section 707,
subdivision (d)(1), which permitted “direct filing,” in criminal court, of charges against
minors who were “both 16 years of age or older and accused of committing certain

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specified offenses (including murder). [Citations.]” (People v. Mendoza (2017)
10 Cal.App.5th 327, 343 (Mendoza), review granted July 12, 2017, S241647.) But
Proposition 57, which was approved and took effect after defendant’s trial, “amended the
Welfare and Institutions Code to mandate that any allegation of criminal conduct against
any person under 18 years of age be commenced in juvenile court, regardless of the age
of the juvenile or the severity of the offense. [Citation.] As amended by Proposition 57,
Welfare and Institutions Code section 707, subdivision (a)(1) now specifies that the sole
mechanism by which a minor can be prosecuted in adult court is through a motion by a
prosecutor to transfer the case from juvenile court to adult court.” (Mendoza, supra, at
p. 343, fn. omitted.)
Defendant contends that he is entitled to relief under Proposition 57 because his
case was “on appeal when Proposition 57 was enacted.” He specifically argues:
(1) Proposition 57 effected a “reduction in punishment,” thus warranting retroactive
application pursuant to the principles of In re Estrada (1965) 63 Cal.2d 740 (Estrada);
(2) principles of statutory construction show that the voters intended to apply Proposition
57 to non-final cases; (3) under the “rule of lenity,” Proposition 57 must be interpreted as
applying to cases pending on direct appeal; and (4) due process and equal protection
require he be provided with a transfer hearing.
This court rejected most of the above arguments in Mendoza, supra,
10 Cal.App.5th 327. This court concluded that “the Estrada rule does not apply” to
Proposition 57 and that the voters did not clearly signal an intent to make Proposition 57
retroactive, such that we were required to follow section 3’s mandate that the initiative be
applied prospectively. (Id. at pp. 345, 349.) This court also held that the defendant’s
equal protection claim failed because “there is a rational basis for prospective-only
application of Proposition 57” (id. at p. 352), and that applying Proposition 57
prospectively would not violate the defendant’s due process rights (id. at pp. 353-354).

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The only argument this court did not address was defendant’s assertion regarding
the rule of lenity. As defendant notes, the rule of lenity “ ‘generally requires that
“ambiguity in a criminal statute should be resolved in favor of lenity, giving the
defendant the benefit of every reasonable doubt on questions of interpretation.” ’ ”
(People v. Nuckles (2013) 56 Cal.4th 601, 611 (Nuckles).) In Mendoza, this court found
Proposition 57 was “arguably ambiguous” as to whether it applied to cases that were not
yet final. (Mendoza, supra, 10 Cal.App.5th at p. 345.) This court did not, however, find
that there were “ ‘ “two reasonable interpretations of the statute stand[ing] in relative
equipoise,” ’ ” nor that there was an “ ‘ “ ‘egregious ambiguity and uncertainty to justify
invoking the rule.’ ” [Citation.]’ [Citation.]” (Nuckles, supra, at p. 611.) Moreover,
resolving any doubt in favor of defendant with the rule of lenity would run counter to
section 3’s default rule that “ ‘ “a statute that is ambiguous with respect to retroactive
application is construed . . . to be unambiguously prospective.” ’ [Citations.]” (People v.
Brown (2012) 54 Cal.4th 314, 320.)
In sum, we conclude that Proposition 57 does not apply retroactively and thus that
defendant is not entitled to conditional reversal and remand for a transfer hearing.
E. Cruel and Unusual Punishment
Defendant contends that his sentence of 50 years to life constitutes cruel and
unusual punishment under the Eighth Amendment to the federal Constitution.
Defendant acknowledges that under section 3051, he will have a youth offender
parole hearing offering him the possibility of release after 25 years of imprisonment
(§ 3051, subd. (b)(3)) and that at such a hearing, the Board of Parole Hearings must “give
great weight to the diminished culpability of juveniles as compared to adults, the
hallmark features of youth, and any subsequent growth and increased maturity” (§ 4801,
subd. (c)). He also acknowledges that in People v. Franklin (2016) 63 Cal.4th 261
(Franklin), our Supreme Court found that these statutes mooted a juvenile defendant’s
Eighth Amendment claims, and that this court is bound by Franklin (see Auto Equity

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Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but he indicates he is raising
this challenge primarily to preserve it for federal review.
We follow Franklin in concluding that defendant cannot establish an Eighth
Amendment violation. However, we agree with defendant’s alternative claim: that he is
entitled to a limited remand, as was ordered in Franklin. In Franklin, the court explained
that the new statutory parole scheme for youthful offenders “contemplate[s] that
information regarding the juvenile offender’s characteristics and circumstances at the
time of the offense will be available at a youth offender parole hearing to facilitate the
Board’s consideration.” (Franklin, supra, 63 Cal.4th at p. 283.) The court noted that
section 3051, subdivision (f)(2) provides that “ ‘[f]amily members, friends, school
personnel, faith leaders, and representatives from community-based organizations with
knowledge about the individual before the crime . . . may submit statements for review by
the board’ ” and that “[a]ssembling such statements . . . is typically a task more easily
done at or near the time of the juvenile’s offense rather than decades later when
memories have faded, records may have been lost or destroyed, or family or community
members may have relocated or passed away.” (Franklin, supra, at pp. 283-284.) The
court found it was “not clear whether Franklin had sufficient opportunity to put on the
record the kinds of information that sections 3051 and 4801 deem relevant at a youth
offender parole hearing.” (Id. at p. 284.) Thus, the court remanded the matter to the trial
court “for a determination of whether Franklin was afforded sufficient opportunity to
make a record of information relevant to his eventual youth offender parole hearing.”
(Ibid.) The Franklin court specified that if the trial court later determined “that Franklin
did not have sufficient opportunity, then the court may receive submissions and, if
appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of
the California Rules of Court, and subject to the rules of evidence.” (Ibid.)
A number of cases have followed Franklin in concluding that a limited remand
was appropriate for a youthful offender whose sentencing hearing predated the enactment

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of section 3051 or the 2015 amendment to that section (Stats. 2015, ch. 471, § 1), which
extended its application to offenders who were under 23 years of age at the time of their
controlling offense. (E.g., People v. Jones (2017) 7 Cal.App.5th 787, 819; People v.
Garrett (2017) 7 Cal.App.5th 871, 884-885; People v. Scott (2016) 3 Cal.App.5th 1265,
1283; People v. Perez (2016) 3 Cal.App.5th 612, 619.)
The Attorney General agrees that a limited remand is appropriate in this case.
Thus, we will order a limited remand in order for the trial court to determine whether
defendant had an adequate opportunity to make an accurate record of his circumstances
and characteristics at the time of his offense, in anticipation of a future youth offender
parole hearing.
IV. DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for the limited
purpose of determining whether defendant was afforded an adequate opportunity to make
a record of information that will be relevant to the Board of Parole Hearings in a future
parole eligibility hearing held pursuant to Penal Code section 3051, and, if not, to allow
defendant and the People an adequate opportunity to make such a record.

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___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.

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