P. v. McGhee

Filed 3/16/17 P. v. McGhee CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
DIAMONTE JEROME
MCGHEE et al.,
Defendants and
Appellants.
B265136
(Los Angeles County
Super. Ct. No. PA071844)
APPEAL from judgments of the Superior Court of Los
Angeles County, David B. Gelfound, Judge. Affirmed.
H. Russell Halpern for Defendant and Appellant Diamonte
Jerome McGhee.
Ralph H. Goldsen, under appointment by the Court of
Appeal, for Defendant and Appellant Eric Michael Edwards.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant

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Attorney General, Shawn McGahey Webb and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
* * * * * *
Defendants Diamonte Jerome McGhee and Eric Michael
Edwards appeal the judgments following their convictions for
numerous counts, including murder, attempted murder, assault
with a semiautomatic firearm, and robbery, along with
enhancements and special circumstances. They raise an array of
alleged errors, none of which warrants reversal. We affirm.
PROCEDURAL BACKGROUND
McGhee, Edwards, and a third defendant, Branden
Trevaughn Higgs (collectively defendants), were charged with
numerous offenses following two separate incidents. For a
confrontation that occurred on October 29, 2011, McGhee and
Edwards were charged with the attempted premeditated murder
and assault with a semiautomatic firearm of Nikolas Gordian
(Pen. Code, §§ 187, subd. (a), 664 [count 6], 245 [count 16]),1 and
five separate counts of assault with a semiautomatic firearm
involving five other victims (§ 245 [counts 7-11]).
For a robbery and shooting that occurred on October 31,
2011, all three defendants were charged with the murder of
Alejandro Sanchez-Torrez (§ 187, subd. (a)) with a special
circumstance allegation that the murder occurred while engaged
in the commission of a robbery (§ 190.2, subd. (a)(17) [count 1]);
1 All undesignated statutory citations are to the Penal Code
unless otherwise noted.

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four counts of attempted premeditated murder of Rick Sandoval
(§§ 187, subd. (a), 664 [counts 2, 3, 12, 17]); four counts of assault
with a semiautomatic firearm of Sandoval (§ 245, subd. (b)
[counts 13, 14, 15, 18]); conspiracy to commit robbery (§ 182,
subd. (a)(1) [count 4]); and second degree robbery of Sandoval
(§ 211 [count 5]).
Various firearm allegations were alleged. (§§ 12022, subd.
(a)(1), 12022.5, 12022.7, subd. (a), 12022.53, subds. (b)-(d).) It
was further alleged McGhee had two prior serious felony juvenile
adjudications. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
Defendants were tried jointly before the same jury, which
issued mixed verdicts. For the counts related to the October 31,
2011 shooting, the jury acquitted both McGhee and Edwards of
conspiracy but found them guilty on all other counts, found the
special circumstance attached to the first degree murder count to
be true, and found all the firearm allegations true. For the
October 29, 2011 incident, the jury acquitted Edwards on all
counts. It convicted McGhee of the assault on Gordian,
deadlocked on the attempted murder count involving Gordian,
and acquitted him of all the assault counts.
The jury acquitted Higgs on the conspiracy count and
deadlocked on all remaining counts for both incidents.
The court found McGhee’s prior conviction allegations true
and sentenced him to life without parole plus 209 years to life. It
sentenced Edwards to 58 years to life. They separately appealed.
FACTUAL BACKGROUND
1. Facts Prior to the October 29, 2011 Incident
At the end of October 2011, McGhee, Edwards, Higgs, and
Keyada Robinson were staying at Michelle Hudson’s home in

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Santa Clarita.2 At the time, all three defendants were 17 years
old, and Robinson was 16 years old. Higgs and Edwards were
cousins, but McGhee “really didn’t know” Edwards. On
October 28, 2011, McGhee showed Michelle’s son Skyler a gun
while Edwards and Higgs were present.
2. October 29, 2011 Incident
On Friday night, October 28, 2011, Gordian went to a party
in Canyon Country and had an altercation with McGhee at the
entrance. The next day—Saturday, October 29, 2011—McGhee
and Gordian arranged to meet under a bridge to fight. Gordian,
his brother, and five friends went to the location, and McGhee
arrived with Edwards.3 McGhee and Gordian got into a
confrontation, and McGhee displayed a black .32- or .38-caliber
semiautomatic handgun. McGhee fired one shot at Gordian,
which hit the ground near him. Gordian’s group ran.4 McGhee
and Edwards returned to the Hudson home. McGhee yelled at
Higgs and Robinson for leaving them that day and complained
that “someone he barely knew had his back when he had to do
something,” referring to Edwards.
3. Discussions of Committing Robbery
According to an interview with police, Robinson said
McGhee, Higgs, and Edwards told him on Saturday, October 29,
2 For convenience, we will use first names of individuals who
share surnames with others.
3 The people in Gordian’s group at the scene did not
recognize Edwards.
4 According to the statements from one of Gordian’s friends
to police, Edwards yelled, “Go blast that nigga,” and McGhee
again aimed at Gordian and yelled, “Shit. I missed my shot.” At
trial, the friend denied ever making those statements.

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2011, they wanted to “hit a lick,” that is, commit a robbery.
McGhee brought up the subject, and Edwards and Higgs
discussed it, but not as much as McGhee did. Edwards was
“always the quiet one”; he would “always be the one that will be,
like, low-key in the background. Like, he’s with it, like he’s down
to do it, but he’ll always be the one in the background.”
On Sunday, October 30, 2011, McGhee, Edwards, and
Higgs “were trying to hit another lick.”
4. October 31, 2011 Robbery and Shooting
On Monday, October 31, 2011, appellants left the Hudson
house together around noon. McGhee wore a white sweatshirt.
Higgs wore a white shirt with a large black logo. And Edwards
wore “something red,” either a shirt or hat.
That afternoon, victim Sandoval was walking near a strip
mall in Canyon Country when victim Alejandro Sanchez-Torrez
asked him for a dollar. Sandoval gave him the 35 cents he had on
him. Sandoval lived in a nearby apartment complex with a dry
river bed, or “wash,” separating the complex from the strip mall.
As Sandoval sat on a wall reading, a teenage African-
American male wearing a white shirt approached him.5 As the
male passed Sandoval, Sandoval asked if he would be interested
in purchasing a Nintendo video game device. The white-shirted
male said he had a friend who might be interested and he would
be back.
Several minutes later, the white-shirted male returned
with two other African-American males, one in a red shirt and
one in a black shirt. Sandoval did not have the Nintendo game
5 Because Sandoval’s “primary memory” of the perpetrators
was the colors of their shirts, we will refer to them in that
manner for the discussion that follows.

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device with him and asked $30 for it. The red-shirted male said
he would give him $60. The white-shirted male said something
like, “He’s high” and “Don’t listen to him.” Sandoval asked if they
had any “weed.” The white-shirted male said he had a pound of
marijuana. Sandoval asked for $10 worth. One of the males
asked Sandoval for a lighter, so Sandoval gave him a green BIC
lighter, and the males started smoking. At some point they
asked if Sandoval had any money, and he said no.
Sandoval went to his apartment and got the Nintendo
game device, a $20 bill, another lighter, and a marijuana pipe.
When he returned, he handed the device to the males, who
passed it around. They did not give it back to him. He overheard
one of them whisper, “Let’s do it fast.” The white-shirted male
then pulled out a small, grayish .22-caliber automatic gun,
pointed it at Sandoval’s face, and told him to put his hands up.
He complied, although he thought the gun might be fake.
The white-shirted male ordered him down into the wash,
and the three males followed. Sandoval stood against a wall with
his hands up. At some point, he removed his wallet and held it in
his hand. The white-shirted male told Sandoval to give them
everything he had, and Sandoval started emptying his pockets.
The white-shirted male told the others, “Go search this nigger.”
Sandoval responded that he did not have anything else. He
handed his wallet over, and the black-shirted and red-shirted
males searched him, but he was not sure if they took anything
else.
As the two others walked away, the white-shirted male
lowered the gun to Sandoval’s chest, and Sandoval heard three
clicks from the gun. The others returned, and one of them said,
“Let’s get this nigger.” The red-shirted male said, “No man, you

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know, let him—.” As the white-shirted male tried to fix the gun,
Sandoval threw a rock. The others began throwing rocks, and
Sandoval threw more rocks back. The white-shirted male said,
“Let’s go.” The three males ran across the wash to the strip mall,
and Sandoval chased them. The white-shirted male turned and
pointed the gun at Sandoval and pulled the trigger several times.
Sandoval zig-zagged to avoid any bullets, but the gun did not fire.
At the top of the wash, the white-shirted male stopped, turned,
and pointed the gun at Sandoval again. The three males were
talking to each other and the white-shirted male was still trying
to unjam the gun and shoot at Sandoval, who zig-zagged again.
The three males ran to a blacktop area. Two of them
looked through Sandoval’s wallet and one of them threw it on the
ground. Sandoval continued to chase them, mostly because he
was angry and wanted them caught. The three males stopped
and faced Sandoval, cursing at him and calling him over.
Sandoval fought them, and they all hit him. He fell to the ground
and was kicked and hit in the head with what he thought was the
gun. He fought back and called out for help. At some point, he
was able to retrieve his wallet and the Nintendo game device.
Sanchez-Torrez, whom Sandoval had encountered earlier,
was nearby with his seven-year-old son Anthony Sanchez.
Anthony saw the males beating up Sandoval, and Sanchez-Torrez
said, “We’re gonna go help him.” He ran toward the group
carrying Anthony’s aluminum T-ball bat.
The white-shirted male pointed the gun at Sandoval again
and pulled the trigger; the gun still did not fire. He then pointed
it at Sanchez-Torrez and pulled the trigger. This time it did fire,
shooting Sanchez-Torrez in the chest. He fell face-down. The
white-shirted male turned the gun on Sandoval and shot him in

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the leg. The three males fled in the same direction. Sandoval
later identified them, although he was unclear about which color
shirts they were wearing. He thought McGhee wore a black
shirt, and Edwards and Higgs wore white shirts. Sanchez-Torrez
died from the gunshot wound.
5. Post-murder Facts
Around 3:20 p.m. on the day of the shooting, Los Angeles
County sheriff’s deputies responded to a dispatch call and
detained Edwards and Higgs in a condominium complex near the
crime scene. That evening, detectives interviewed Edwards, who
told them he went to the wash wearing a red shirt and removed a
cell phone from a Mexican male’s pants pocket without his
consent. He tossed the phone back because it was “weird.”
Shortly thereafter, he changed out of his red shirt at a nearby
apartment complex. Detectives also interviewed Higgs, who told
them he had gone to the wash wearing a black shirt and removed
a marijuana pipe from a Mexican male’s pants pocket without
consent. He dropped the pipe. He also changed his shirt at a
nearby apartment complex.
McGhee escaped immediate capture. Sweaty and out of
breath, he ran to the home of his friend Joseph Perez-Coronel.
According to Perez-Coronel’s interview with police, McGhee
displayed a “chrome-ish” “Deuce 5” gun and asked if Perez-
Coronel wanted to buy it. Perez-Coronel heard a helicopter and
“put the two and two together,” asking McGhee, “[A]re they here
for you?” McGhee replied, “[M]aybe.” Perez-Coronel asked
McGhee to leave.
Later that evening, McGhee went to the home of another
friend, Aaron Grandchamp, saying he needed a place to stay for
the night. He said he had been with Higgs and Edwards and had

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shot somebody at the wash. He also said his mother had a plane
ticket for him to go to Detroit. Grandchamp let him stay
overnight. The next morning, he showed Granchamp a small
black gun, saying he needed to “stash” it.
That morning, McGhee and Grandchamp went to Michelle
Hudson’s house. Michelle confronted McGhee, telling him
Edwards and Higgs were in custody. He “dropped his head” and
looked at the ground. She told him if he had any involvement in
the murder he needed to turn himself in. He responded, “[T]his
is not like camp. This is bigger than camp.” At some point,
Robinson referred to a news article and asked McGhee, “[I]t says
somebody got killed. What happened?” McGhee responded,
“Yeah, bro, I shot him.” McGhee left.
A detective spotted McGhee that afternoon walking about
half a mile from the Hudson home. When the detective
attempted to detain him, he ran, although he eventually stopped.
At the scene of the shooting, officers found two .25-caliber
shell casings, the game device, and Sandoval’s wallet. At the
condominium complex where Edwards and Higgs were arrested,
officers found Sandoval’s green lighter, a red T-shirt in an area
where Edwards had run, and two backpacks, one of which
contained clothing and personal hygiene items. Michelle gave
police a .25-caliber shell casing she found in her backyard prior to
the October 31, 2011 shooting. Testing revealed it came from the
same gun as the casings found at the shooting scene. Edwards
and Higgs tested positive for gunshot residue.
In a recorded jail call, McGhee told his girlfriend to convey
a message that Grandchamp should not testify against him.

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6. Defense Case
McGhee and Edwards did not present affirmative evidence
in their defense. Higgs called the sheriff’s deputy who had
interviewed Sandoval at the hospital after the shooting.
Sandoval told her that, after McGhee tried to shoot him the first
time, Edwards and Higgs told him, “Let’s just go.” Sandoval also
told her McGhee asked him if he ever stole from anyone.
Sandoval said no, and McGhee responded, “Well, we do[,] a lot.”
DISCUSSION
1. Edwards’s Appeal
a. Felony-murder Jury Instructions
Edwards and Higgs were tried for the murder of Sanchez-
Torrez only on a theory of felony murder. As to them, the court
instructed the jury for felony murder based on CALCRIM No.
540B, which stated in relevant part:
“All three defendants are charged in Count One with
murder, under a theory of felony murder.
“A defendant may be guilty of murder, under a theory of
felony murder, even if another person did the act that resulted in
the death. I will call the other person the perpetrator.
“To prove that a non-perpetrator defendant is guilty of first
degree murder under this theory, the People must prove that:
“1. The non-perpetrator defendant committed, or
attempted to commit ROBBERY; or aided and abetted in a
ROBBERY; or was a member of a conspiracy to commit
ROBBERY;
“2. The non-perpetrator defendant intended to commit,
intended to aid and abet the perpetrator in committing, or
intended that one or more of the members of the conspiracy
commit ROBBERY;

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“3. If the defendant did not personally commit or
attempt to commit ROBBERY, then a perpetrator, whom the
defendant was aiding and abetting, or with whom the defendant
conspired, personally committed or attempted to commit
ROBBERY; AND
“4. While committing or attempting to commit
ROBBERY, the perpetrator caused the death of another person.”
The instruction further stated, “It is not required that the
person die immediately, as long as the act causing death occurred
while the defendant was committing the ROBBERY.”
The court also instructed the jury based on CALJIC No.
8.21.1:
“For the purposes of determining whether an unlawful
killing has occurred during the commission or attempted
commission of a robbery, the commission of the crime of robbery
is not confined to a fixed place or a limited period of time. [¶] A
robbery is still in progress after the original taking of physical
possession of the stolen property while the perpetrator is in
possession of the stolen property and fleeing in an attempt to
escape. Likewise it is still in progress so long as immediate
pursuers are attempting to capture the perpetrator or to regain
the stolen property. [¶] A robbery is complete when the
perpetrator has eluded any pursuers, has reached a place of
temporary safety, and is in unchallenged possession of the stolen
property after having effected an[] escape with the property.”
Edwards argues the instructions were incomplete because
they did not expressly require the jury to find a “logical nexus”
between the robbery and Sanchez-Torrez’s death. That
requirement, he argues, was found in former CALCRIM No. 549,
which was eliminated in 2013 prior to the trial in this case, and

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the trial court had a sua sponte duty to give that instruction.6
(See Judicial Council of Cal., Crim. Jury Instr. (2016)
Introduction to Felony-Murder Series, p. 261.) Alternatively, he
argues if the court was not required to give this instruction sua
sponte, his counsel was ineffective for failing to request it. We
reject his contentions.
6 That instruction would have essentially instructed the jury
as follows: “ ‘In order for the People to prove that defendant is
guilty of murder under a theory of felony murder, the People
must prove that the [robbery] and the act causing the death were
part of one continuous transaction. The continuous transaction
may occur over a period of time in more than one location. In
deciding whether the act causing the death and the felony were
part of one continuous transaction, you may consider the
following factors: [¶] 1. Whether the felony and the fatal act
occurred at the same place. [¶] 2. The time period, if any,
between the felony and the fatal act. [¶] 3. Whether the fatal
act was committed for the purpose of aiding the commission of
the felony or escape after the felony. [¶] 4. Whether the fatal act
occurred after the felony but while the perpetrator continued to
exercise control over the person who was the target of the felony.
[¶] 5. Whether the fatal act occurred while the perpetrator was
fleeing from the scene of the felony or otherwise trying to prevent
the discovery or reporting of the crime. [¶] 6. Whether the
felony was the direct cause of death. [¶] And [¶] 7. Whether
the death was a natural and probable consequence of the felony.
[¶] It is not required that the People prove any of these factors or
any particular combination of these factors. The factors are
give[n to] assist you in deciding whether the fatal act and the
felony were part of one continuous transaction.’ ” (People v.
Wilkins (2013) 56 Cal.4th 333, 349 (Wilkins) [quoting instruction
given in case based on CALCRIM No. 549].)

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In People v. Cavitt (2004) 33 Cal.4th 187 (Cavitt), our high
court explained the scope and requirements for the felony-murder
rule as applied to accomplices. “[T]he felony-murder rule does
not apply to nonkillers where the act resulting in death is
completely unrelated to the underlying felony other than
occurring at the same time and place.” (Id. at p. 196.) Instead,
“the felony-murder rule requires both a causal relationship and a
temporal relationship between the underlying felony and the act
resulting in death. The causal relationship is established by
proof of a logical nexus, beyond mere coincidence of time and
place, between the homicidal act and the underlying felony the
nonkiller committed or attempted to commit. The temporal
relationship is established by proof the felony and the homicidal
act were part of one continuous transaction.” (Id. at p. 193.)
Later, in Wilkins, supra, 56 Cal.4th 333, the court clarified
the temporal aspect of felony murder, holding that giving former
CALCRIM No. 549 without also instructing on the escape rule—
at least in the context of a direct perpetrator—rendered the
instructions incomplete and misleading. (Wilkins, at p. 349.) It
found the trial court erred in refusing to give an instruction on
the escape rule based on a Judicial Council bench note that
interpreted Cavitt to preclude the application of the escape rule
to explain the required temporal connection for felony murder.
(Wilkins, at pp. 341-342.) Cavitt, it explained, involved the
“complicity aspect” of felony murder, and in cases involving a
single perpetrator, “we have never suggested that if the
perpetrator flees the scene of the crime and reaches a place of
temporary safety before the killing, the killing and the felony
could still be considered part of one continuous transaction.”
(Wilkins, at p. 344.)

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To avoid potential confusion after Wilkins, the Judicial
Council deleted former CALCRIM No. 549 and replaced it with
appropriate bench notes. (See Judicial Council of Cal., Crim.
Jury Instr., supra, Introduction to Felony-Murder Series, p. 261.)
It provided separate instructions for direct perpetrators
(CALCRIM No. 540A), nonkiller coparticipants (CALCRIM No.
540B), and unusual circumstances in which other acts caused the
death (CALCRIM No. 540C).
Edwards devotes a significant portion of his briefs on
appeal taking issue with the Judicial Council’s deletion of former
CALCRIM No. 549 and its interpretation of Wilkins and Cavitt.
The simple flaw in his argument is that he does not dispute the
temporal aspect of the felony-murder rule in this case,
acknowledging “[t]he death of Sanchez-Torres [sic] occurred
during a robbery, ‘while’ McGhee was robbing Sandoval.”
Instead, he challenges the adequacy of the instructions for the
logical nexus requirement. Yet, former CALCRIM No. 549
relates to the temporal aspect of felony murder and was
“designed to be used ‘[i]f the evidence raises an issue of whether
the felony and the homicide were part of one continuous
transaction.’ ” (Wilkins, supra, 56 Cal.4th at p. 348.) Because
Edwards does not dispute that the robbery and murder were part
of one continuous transaction, the Judicial Council’s decision to
delete former CALCRIM No. 549 is inconsequential.
As to the logical nexus aspect, the instructions here
adequately conveyed that requirement without former CALCRIM
No. 549, and the trial court did not have the duty to give any
clarifying instructions absent a request from Edwards. Pursuant
to CALCRIM No. 540B, the jury was told Edwards could only be
liable if McGhee caused Sanchez-Torrez’s death “[w]hile”

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committing or attempting to commit robbery. Then, CALJIC No.
8.21.1 defined when “an unlawful killing has occurred during the
commission or attempted commission of a robbery.” The court in
Cavitt approved a similar instruction telling the jury the
nonkillers could be found guilty if “ ‘the killing occurred during
the commission or attempted commission of robbery or burglary’
by ‘one of several persons engaged in the commission’ of those
crimes.” (Cavitt, supra, 33 Cal.4th at p. 203.) As in Cavitt,
CALCRIM No. 540B and CALJIC No. 8.21.1 together adequately
instructed the jury on the logical nexus requirement.
Nor was there any colorable dispute over the facts showing
a logical nexus between the robbery of Sandoval and the murder
of Sanchez-Torrez compelling sua sponte clarification. (Cavitt,
supra, 33 Cal.4th at p. 204 [“[T]here is no sua sponte duty to
clarify the principles of the requisite relationship between the
felony and the homicide without regard to whether the evidence
supports such an instruction.”].) The robbery and murder were
not “completely unrelated”;7 on the contrary, they were closely
tied. Defendants robbed Sandoval at gunpoint, then fled.
Sandoval immediately chased them across the wash to a nearby
parking lot and got into a physical altercation with them in an
attempt to stop their flight. Sanchez-Torrez approached with a
7 Edwards argues the “completely unrelated” language from
Cavitt is dicta. Yet, the court stated this was part of its holding
on the logical nexus requirement. (Cavitt, supra, 33 Cal.4th at
p. 196 [“We hold . . . that the felony-murder rule does not apply to
nonkillers where the act resulting in death is completely
unrelated to the underlying felony other than occurring at the
same time and place.” (Italics added.)].)

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T-ball bat to help Sandoval, and McGhee turned the gun on him
and shot him dead to prevent him from interfering.
The court in Cavitt noted “cases that raise a genuine issue
as to the existence of a logical nexus between the felony and the
homicide ‘are few indeed.’ ” (Cavitt, supra, 33 Cal.4th at p. 204,
fn. 5.) In Cavitt, a logical nexus existed when the murder victim
was the target of the burglary-robbery; she was covered in a
sheet, beaten, hog-tied, and left facedown on a bed, where she
died of asphyxiation. Although the defendants argued their
accomplice—the stepdaughter of the victim—committed the
murder for personal reasons unrelated to the burglary-robbery
once they were gone from the house, “one could not say that the
homicide was completely unrelated, other than the mere
coincidence of time and place, to the burglary-robbery.” (Id. at
p. 204.) Although Sanchez-Torrez was not the target of the
robbery like the victim in Cavitt, his murder was directly linked
to the robbery of Sandoval and its immediate continuing
aftermath. As in Cavitt, the trial court had no sua sponte
obligation to give any clarifying instructions on the logical nexus
requirement.
Even assuming the failure to give former CALCRIM No.
549—or any additional instruction on the logical nexus
requirement—amounted to misinstruction on an element of
felony murder, the error was harmless beyond a reasonable
doubt. (Wilkins, supra, 56 Cal.4th at p. 349.) As we have
explained, the evidence overwhelmingly showed a direct
connection between the robbery of Sandoval and the murder of
Sanchez-Torrez, beginning with the robbery in the wash,
proceeding with Sandoval’s pursuit of the defendants to the
nearby parking lot, the ensuing physical altercation among them,

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and McGhee’s shooting of Sanchez-Torrez as he attempted to
intervene. These facts also overwhelmingly satisfied at least five
of the factors listed in former CALCRIM No. 549: the robbery
and murder occurred in the same general area; the murder
occurred immediately after the robbery while defendants fled and
then fought with Sandoval as he pursued them; the jury could
have reasonably concluded McGhee shot Sanchez-Torrez in order
to facilitate either the robbery or their escape; and the jury could
have reasonably concluded Sanchez-Torrez’s death was a natural
and probable consequence of the robbery. The only inapplicable
factor is that the felony was not the direct cause of death. Thus,
“ ‘it appears “ ‘ “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” ’ ” ’ ”
(Wilkens, supra, at p. 350.)
We also reject Edwards’s claim his counsel was ineffective
for failing to request former CALCRIM No. 549 or some other
clarifying instruction. To establish ineffective assistance,
Edwards must show both deficient performance and prejudice.
(People v. Hart (1999) 20 Cal.4th 546, 623.) “ ‘To the extent the
record on appeal fails to disclose why counsel acted or failed to
act in the manner challenged, we will affirm the judgment
“unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory
explanation . . . .” ’ ” (Id. at pp. 623-624.) There could have been
at least one compelling strategic reason for Edwards’s counsel not
to request former CALCRIM No. 549 or another clarifying
instruction—in the face of overwhelming evidence of both the
logical nexus and temporal connection between the robbery and
murder, counsel could have sought to avoid drawing further
attention to those issues to Edwards’s detriment. And even if

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there was no tactical reason not to request additional
instructions, Edwards suffered no conceivable prejudice given the
overwhelming evidence demonstrating both the logical nexus and
temporal connection between the robbery and murder.
b. Attempted Murder Counts
The jury was instructed with two theories to find Edwards
guilty of aiding and abetting McGhee’s multiple acts of attempted
murder of Sandoval: (1) direct aiding and abetting, and (2) aiding
and abetting based on the natural and probable consequences
doctrine. Citing People v. Chiu (2014) 59 Cal.4th 155, Edwards
challenges his attempted murder convictions based on the
natural and probable consequences doctrine. In Chiu, our high
court held an aider and abettor cannot be found guilty of first
degree premeditated murder based on the natural and probable
consequences doctrine. (Id. at pp. 158-159.) Two years earlier, in
People v. Favor (2012) 54 Cal.4th 868, the court held an aider and
abettor may be convicted of attempted premeditated murder if
the attempted murder was reasonably foreseeable under the
natural and probable consequences doctrine and the attempted
murder itself was premeditated pursuant to section 664,
subdivision (a). (Favor, at p. 880.) The court in Chiu did not
overrule Favor, but instead distinguished it because it involved
attempted premeditated murder, rather than completed
premeditated murder. (Chiu, supra, at pp. 162-163.) Edwards
argues Chiu should be extended to attempted premeditated
murder, but he acknowledges we are bound by Favor, so we must
reject his challenge. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
Edwards also argues insufficient evidence supported either
direct aiding and abetting or aiding and abetting based on the

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natural and probable consequences theory of attempted murder.
In evaluating this claim, we must “review the entire record in the
light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Although the jury was instructed on both direct and
natural and probable consequences theories of aiding and
abetting, respondent does not contend any evidence supported
direct aiding and abetting liability. Thus, we focus on natural
and probable consequences, which exists when “ ‘ “a reasonable
person in the defendant’s position would have or should have
known that the charged offense was a reasonably foreseeable
consequence of the act aided and abetted.” ’ ” (Chiu, supra, 59
Cal.4th at p. 162.) Substantial evidence supported that theory in
this case. Edwards does not dispute substantial evidence
supported the jury’s conclusion he aided and abetted the target
offense—robbery. In addition, there was evidence Edwards knew
McGhee would use a gun during the robbery because McGhee
showed a gun in Michelle’s backyard while Edwards was present
and Edwards was with McGhee two days before the robbery
when McGhee shot at Gordian. Although the jury acquitted
Edwards of any crimes related to the Gordian incident, the jury
could have relied on this evidence to infer Edwards could
reasonably foresee McGhee would use a gun to rob Sandoval and
attempt to murder him during the course of the robbery.

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c. Ineffective Assistance of Counsel and “Felony Attempted
Murder” Closing Argument
Edwards claims his trial counsel was ineffective in failing
to object to the prosecutor’s closing argument purportedly asking
the jury to apply a nonexistent “felony attempted murder” rule.
We disagree the prosecutor’s argument was improper, so
Edwards’s counsel was not ineffective for failing to object.
Edwards takes issue with the following italicized portions
of the prosecutor’s closing argument:
“Okay. I want to start off with one thing first out of order.
If you remember one thing, remember that. Robbery is the
continuing offense. Robbery is a very interesting crime. Robbery
is the key to understanding everything in this case. If you
understand robbery, that you understand robbery is a continuing
offense, you will understand all the charges, all the legal theories,
and all the facts make sense. Okay? [¶] Robbery is a continuing
offense. That means that robbery doesn’t end at the time that
you forcibly take property from somebody. Or fear, you take
property from someone, it doesn’t end there. Robbery keeps going
until the perpetrators have reached a place of temporary safety.
That is the simple way of saying it. But if the victim is pursuing
the robbers, the robbery is not over. Victim is trying to get his
property back and trying to cause the robbers to be captured, the
robbery keeps going. And whatever happens during that robbery,
it keeps going. So your legal liability doesn’t end at the taking.”
(Italics added.)
“As long as the robbery is continuing, each aider and
abettor in the robbery is liable for the death caused by one of
their fellow participants. The continuing nature of robbery
extends the period by which an aider and abettor is on the hook

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for the death caused by one of their fellow participants. [¶] Why
does it matter that robbery is continuing? Because I’ll say this
three or four different ways. It affects aiding and abetting
liability and conspiracy liability because it extends the period of
time the robbery takes. Not only is each defendant liable for what
he does, but he’s also liable for what the others do during the
entire continuing robbery. That’s under the following theory:
aiding and abetting, what his fellow principals do that are
natural and probable consequences. Okay? And conspiracy
liability. What his fellow conspirators do that are natural and
probable. [¶] Under aiding and abetting liability and conspiracy
liability, each defendant is responsible for all natural and
probable acts committed by the other defendants while the robbery
is being committed while it continues and continues and
continues. Okay. So as long as the robbery is continuing, you are
on the hook for felony murder. Done.” (Italics added.)
“The robbery is still going. Robbery is a continuing offense.
During this robbery, McGhee now is pointing the gun. He’s
pulling the trigger. The gun is not firing. What is happening at
this point? The gun is being pulled. Trigger is being pulled. Who
is liable for what? You have a robbery. You have a conspiracy to
commit robbery before any of these. That was complete upon one
person doing an overt act. Okay? That could have been just
negotiating the price of that Nintendo, whatever. Whatever it
was. Conspiracy is complete. Even if you don’t like the
conspiracy, they are aiding and abetting. They are actually
participating in doing the robbery. All three are guilty of doing
the robbery. [¶] Now what you have is McGhee pointing the gun
at Sandoval and he’s attempting to pull the trigger. That is
attempted murder by McGhee with personal use of the gun. Higgs

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and Edwards are aiding and abetting in the robbery. And this is
a natural and foreseeable consequence of the robbery. They are
now guilty of aiding and abetting and conspiracy. They are guilty
of it. Period. It’s a natural and probable consequence that when
you commit a robbery with a loaded gun, that loaded gun would
be used.” (Italics added.)
Edwards claims the italicized portions above were improper
because the prosecutor conflated natural and probable
consequences for attempted murder with the continuing nature of
the robbery for felony murder. While the prosecutor perhaps
could have been more precise in delineating between the
applicable theories, nothing the prosecutor said was incorrect or
misleading. Indeed, the court instructed the jury Edwards could
be found guilty of the nontarget crime of attempted murder as a
natural and probable consequence of robbery if it was committed
by a coparticipant “[d]uring the commission of ROBBERY.”
(Italics added.) Moreover, the court instructed on natural and
probable consequences for attempted murder and felony murder
while committing robbery and told the jury to follow those
instructions to the extent they conflicted with the prosecutor’s
argument. “When argument runs counter to instructions given a
jury, we will ordinarily conclude that the jury followed the latter
and disregarded the former, for ‘[w]e presume that jurors treat
the court’s instructions as a statement of the law by a judge, and
the prosecutor’s comments as words spoken by an advocate in an
attempt to persuade.’ ” (People v. Osband (1996) 13 Cal.4th 622,
717.) Nothing suggests the jury failed to follow the court’s
instructions. Thus, Edwards’s counsel was not ineffective by
failing to raise a meritless objection, and even if she was,
Edwards suffered no prejudice.

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d. Exclusion of Edwards’s Statement “I’m Not About to Roll
with Ya’ll”
Edwards argues the trial court abused its discretion and
violated his constitutional right to present a defense when it
excluded the following statement Robinson made to police about
what Edwards told McGhee and Higgs on the morning of the
robbery and murder: “So then on Monday, Monday morning . . .
Brandon [Higgs], Tay [McGhee], and Eric [Edwards]—Eric was
the one who did not want to go. Eric was the one who did not
want to go. Eric wanted to stay. I know Eric wanted to stay.
Eric’s like, ‘bro, I’m not about to roll with ya’ll. I already know
what ya’ll about to do, I’m not about (to) go.[’]” Respondent
argues the court did not exclude this statement; defense counsel
simply abandoned any effort to introduce it. After reviewing the
record, we agree.
Prior to trial, the prosecution moved to introduce a number
of statements by defendants. Item 12 was the following
statement from Robinson to police, which the prosecution argued
fell within the state of mind hearsay exception to show Edwards
knew McGhee’s proposed conduct would get him in trouble: “Eric
[Edwards] did not want to do nothing. Eric was all like, ‘No, I
want to stay.’ ” “At the door, I was like (to Eric), ‘Bro, whatever,
if anything happens, call me. Call me.’ ” Item 13 included the
“roll with ya’ll” statement set out above, which the prosecution
argued was also admissible on a variety of grounds. Edwards
filed a written opposition that specifically addressed item 12 but
did not address item 13. At a hearing on the motion, Edwards’s
counsel submitted on item 13, and the court excluded item 12 and
admitted item 13.

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At trial, Edwards’s counsel asked Robinson, “[D]o you
recall . . . in your interview of November 1, 2011, that you told
the police officer . . . Eric [Edwards] was the one who did not
want to go[?]” The prosecutor objected, and the court held a
sidebar as follows:
Prosecutor: “I think in my . . . motion item 12 I was trying
to admit Edwards’ statement to Keyada Robinson on 10-31 that
Edwards was aware of what McGhee and Higgs were going to do,
and the court did not admit that.”
The court: “Right.”
Prosecutor: “This is that area right there. And also, it’s
one thing if Eric says he wants to stay, but if the witnesses say
what—it’s inadmissible what a witness, what somebody’s intent
was. If somebody says they said that to me, that’s a different
story. If that statement emits a particular intent, that is okay.
But to say what this person did or did not want to do, what their
intent was, was something I’m not allowed to do and I cut that
out of the portion that I played for the jury this morning. And
the 11-10 interview, in part because I felt that it would run afoul
of this, of that general rule, and also because [Higgs’ counsel] did
not want to see this as that issue, but also as the issue that was
not admitted pursuant to the court’s ruling.”
The court: “Right. That was the portion I did exclude at
the request of the defense.”
Edwards’s counsel: “Well, he’s not saying he’s going to go
hit a lick or anything like that. He just says I’m not about to roll
with y’all. I don’t want to go—he’s the one who doesn’t want to
go. So then he says here, good.”
The court: “I think that has to come in, to some degree, the
fact he didn’t want to go, but ultimately did go.”

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Prosecutor: “That was Higgs changing his demeanor.
Higgs was the one that said, you know what, screw it. I’m gonna
go. The court ruled that was admissible. The court ruled this
was not. Now, maybe she can get in that statement like
something Eric may have said, but the fact Eric was the one that
didn’t want to go, wanted to stay, I know he wanted to stay, that
I think is inadmissible. . . .”
The court: “All right. So you can get in what—”
Edwards’s counsel: “This is a statement. I’m not gonna roll
with y’all. Now, that doesn’t say I’m gonna rob. He said I don’t
want to leave with you. That’s a statement.”
The court: “That’s the one portion you want to get that Eric
said that he—”
Edwards’s counsel: “Well, except in this context he says
Eric wants to stay. He wanted to—he said I don’t want to go with
you. That’s my translation in English.”
Higgs’s counsel: “I see [the prosecutor’s] point here in
that—”
Edwards’s counsel: “I don’t.”
Higgs’s counsel: “Well, it is a question that could be
argued. He is implying I know what you guys are gonna do and
I’m not gonna go do it with you. I think that’s the sort of—and
the reason I say argument is I believe that is what he argued. . . .
I think that that’s—I think that I continue to argue it is not
possible that it would be improper for [the prosecutor] to argue
from that statement that they were going to go, that that
statement suggests they were gonna go rob somebody.”
Prosecutor: “Well, this is what my initial theory was. It
was the state of mind exception because he had to know what—”
The court: “Okay. My—”

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Prosecutor: “—counsel for defense, and he was going to get
into trouble. And the court found it is not for Higgs, so it is not
admissible, and it is not admissible for defense counsel.”
The court: “My ruling will stand.”
Cross-examination resumed, and Edwards’s counsel asked
Robinson, “Do you remember saying Eric was in his pajamas that
morning and didn’t want to leave?” The prosecutor interjected,
“Same objection.” The court asked, “As to the clothing?” The
prosecutor responded, “No. As to the second part of the
question.” The court sustained the objection and told Edwards’s
counsel to rephrase the question. In response, she did not ask
any questions about what Edwards had said to Robinson about
not wanting to go. Later, the prosecutor played for the jury a
redacted version of Robinson’s interview with police, which did
not include the “roll with ya’ll” statement.
While not the cleanest record, we think it is at least clear
that the court would have allowed Robinson to testify that
Edwards made the “roll with ya’ll” statement to him,
undermining the factual foundation of Edwards’s argument that
the court excluded the statement erroneously. Before trial, the
court expressly admitted the “roll with ya’ll” statement as item
13 in the prosecutor’s motion. Then, during the sidebar at trial,
when Edwards’s counsel argued he was saying he did not want to
go, the court responded, “I think that has to come in, to some
degree, the fact he didn’t want to go, but ultimately did go.” At
the conclusion of the sidebar, the court stated its rulings stood,
which reasonably referred to its pretrial ruling admitting the
“roll with ya’ll” statement. When questioning resumed, the
prosecutor only objected to the question asking Robinson about
Edwards’s intent—whether he actually did not want to go. The

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court seems to have understood that when it directed Edwards’s
counsel to rephrase the question. Whether through a
misunderstanding or a tactical decision, it appears Edwards’s
counsel simply chose to not ask Robinson about the statement
during cross-examination. Thus, because the court never
excluded the “roll with ya’ll” statement, it could not have done so
incorrectly, and Edwards’s argument fails.
e. Challenge to Sentence of 58 Years to Life
Edwards was 17 years old at the time he committed the
crimes in this case. Because he was found guilty of first degree
murder with the special circumstance of robbery, the trial court
had discretion to sentence him to life without the possibility of
parole (LWOP) or 25 years to life. (People v. Gutierrez (2014) 58
Cal.4th 1354, 1360-1361 (Gutierrez) [construing § 190.5, subd. (b)
to give discretion to sentencing court to impose LWOP or 25-
years-to-life for special circumstances murder committed by
juveniles]; see Miller v. Alabama (2012) 567 U.S. 460, ___ [132
S.Ct. 2455, 2460] (Miller) [mandatory LWOP sentence for
juvenile homicide offense constituted cruel and unusual
punishment].) In a sentencing memorandum, the prosecutor
recommended not sentencing him to LWOP, given his lesser role
in the crimes. Recognizing its sentencing discretion under Miller,
the trial court declined to impose an LWOP sentence, explaining:
“The court is dealing with the case where there is a special
circumstance and the individual is a minor. The court has
discretion in deciding whether a juvenile homicide offender
should be sentenced to life without parole, but the court must
conduct an analysis under Miller versus Alabama looking at
certain factors in this matter. [¶] The court has, obviously,
looked at the Miller case, obviously the People versus Gutierrez

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case, which is a California case. It also talks about that the
sentencing court has the discretion and must consider all
relevant evidence including the Miller factors in deciding
whether to give the defendant either life without the possibility of
parole or 25 [years] to life sentence. So there is no presumption
in favor of an L.W.O.P. sentence for a juvenile offender.” The
court therefore opted to sentence Edwards to 25 years to life on
the murder count plus 28 years to life for the attempted murder
counts, and an additional five years for the firearm
enhancements.
Edwards argues his aggregate sentence of 58 years to life
was the equivalent of a life sentence and, because he was under
18 at the time he committed the crimes at issue, it constituted
cruel and unusual punishment. As recently determined in People
v. Franklin (2016) 63 Cal.4th 261 (Franklin), however, his claim
has been rendered moot by the enactment of section 3051. That
provision provides that a juvenile defendant sentenced to a term
longer than 25 years to life is “eligible for a ‘youth offender parole
hearing’ during the 25th year of his sentence.” (Franklin, supra,
at p. 277.)
In Franklin, the juvenile homicide defendant was
sentenced to two mandatory consecutive terms of 25 years to life.
He challenged his sentence pursuant to Miller, arguing it was the
functional equivalent of a mandatory LWOP sentence barred by
Miller. (Franklin, supra, 63 Cal.4th at pp. 273-274.) Our high
court first held Miller applied to mandatory sentences that were
the functional equivalent of LWOP sentences. It then concluded
section 3051 rendered the defendant’s challenge moot. That
provision entitled the defendant to parole hearing no later than
his 25th year in prison and mandated the parole board “ ‘give

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great weight to the diminished culpability of juveniles as
compared to adults, the hallmark features of youth, and any
subsequent growth and increased maturity of the prisoner in
accordance with relevant case law,” such as Miller. (Franklin,
supra, at p. 277.) As a result, the defendant was “now serving a
life sentence that includes a meaningful opportunity for release
during his 25th year of incarceration. Such a sentence is neither
LWOP nor its functional equivalent” (id. at pp. 279-280), so no
Miller issue arose and the defendant’s claim was moot.
Edwards argues Franklin may not apply here because his
sentence involves both indeterminate and determinate
components, whereas the sentence in Franklin involved only two
indeterminate terms. Any uncertainty in that respect, however,
is resolved by the language of section 3051.
Although the statute does not expressly address mixed
determinate and indeterminate sentences, separate subdivisions
of the statute apply to determinate and indeterminate sentences
imposed for the “controlling offense.” For a “controlling offense”
with a determinate term, the defendant “shall be eligible for
release on parole at a youth offender parole hearing by the board
during his or her 15th year of incarceration, unless previously
released pursuant to other statutory provisions.” (§ 3051, subd.
(b)(1).) For a “controlling offense” with a term of 25 years to life,
the defendant “shall be eligible for release on parole by the board
during his or her 25th year of incarceration.” (§ 3051, subd.
(b)(3).) The statute defines “controlling offense” as “the offense or
enhancement for which any sentencing court imposed the longest
term of imprisonment.” (§ 3051, subd. (a)(2)(B).) This definition
does not distinguish between determinate and indeterminate
terms, so for a mixed sentence, the court simply identifies the

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offense or enhancement with the longest term—whether
determinate or indeterminate—as the “controlling offense” and
applies the applicable subdivision.
Here, Edwards’s longest term was 25 years to life for first
degree murder, so that was his “controlling offense” and he would
be eligible for parole no later than his 25th year. With that
clarification, Edwards acknowledges we are bound by Franklin to
treat section 3051 as an adequate remedy for his Miller claim.
(See People v. Cornejo (2016) 3 Cal.App.5th 36, 68 (Cornejo)
[applying Franklin to sentence with both mandatory and
discretionary components].) His challenge is therefore moot.8
8 Although not clear in his brief, Edwards seems to suggest
remand might be appropriate for the court to make a record at
sentencing regarding the youth factors that could be pertinent at
a later parole hearing pursuant to section 3051. In Franklin,
although the court concluded the Miller claim was moot, it
remanded the matter to the trial court for the limited purpose of
determining whether the juvenile offender in that case “was
afforded sufficient opportunity to make a record of information
relevant to his eventual youth offender parole hearing” because it
was not clear from the record that the defendant had the chance
to do so at the original sentencing. (Franklin, supra, 63 Cal.4th
at p. 284.) If the trial court concluded the defendant did not have
a sufficient opportunity, it was directed to accept submissions
and testimony on the defendant’s youth, with the goal of
providing “an opportunity for the parties to make an accurate
record of the juvenile offender’s characteristics and circumstances
at the time of the offense so that the Board, years later, may
properly discharge its obligation to ‘give great weight to’ youth-
related factors (§ 4801, subd. (c)) in determining whether the
offender is ‘fit to rejoin society’ despite having committed a
serious crime ‘while he was a child in the eyes of the law’
[citation].” (Ibid.)

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2. McGhee’s Appeal
a. Aranda/Bruton Error
McGhee argues the trial court’s admission of redacted
statements by Edwards and Higgs to police violated People v.
Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United
States (1968) 391 U.S. 123 (Bruton). We disagree.
Citing Bruton and Richardson v. Marsh (1987) 481 U.S.
200 (Richardson), the prosecution moved before trial to introduce
redacted statements Edwards and Higgs separately made to
police, with the limitation those statements would only be
introduced against those defendants respectively and no other
defendant. Edwards’s redacted statement stated as follows:
The defendant Franklin was sentenced before Miller was
decided, and in Cornejo, the court declined to remand a case
involving defendants who had been sentenced after Miller and
had been given sufficient opportunity at sentencing to present
the characteristics of youth contemplated by Miller and Franklin.
(Cornejo, supra, 3 Cal.App.5th at pp. 68-69.) The same is true
here. Edwards was sentenced after Miller and was afforded an
adequate opportunity to develop the factors related to his youth
that would later inform the Board of Parole’s decision. In his
sentencing memorandum, Edwards’s trial counsel argued his
youth and family background mitigated the crime, and she
attached letters from his mother, father, siblings, and others
describing his background and character. (Cornejo, supra, at
p. 69 [record contained sentencing memoranda and letters
discussing Miller and defendant’s good character].) At the
sentencing hearing, the court acknowledged reading Edwards’s
sentencing memorandum, recognized its discretion under Miller,
and opted to sentence Edwards to 25 years to life rather than
LWOP. Edwards does not point to anything more he would
present to the court if given the opportunity, so we decline to
remand the case for a further hearing.

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“Mr. Edwards was interviewed at the Santa Clarita Sheriff’s
Station on the evening of 10/31/11. I advised him of his
Miranda[9] rights (description of rights omitted) and he agreed to
speak with me. Mr. Edwards stated that he went to the wash on
10/31/11. Mr. Edwards stated that he wore a red shirt. He
approached a Mexican male and removed a cell phone from the
Mexican male’s pants pocket without the Mexican male’s consent.
Mr. Edwards stated that he then tossed the phone back to the
Mexican male because the phone was a ‘weird’ ‘Boost’ phone.
Mr. Edwards admitted that he changed out of his red shirt while
at an apartment complex a short distance away a short time
later.” Higgs’s statement said as follows: “Mr. Higgs was
interviewed at the Santa Clarita Sheriff’s Station at 12:11 am on
November 1st. Higgs stated that his date of birth was 8/15/94. I
advised him of his Miranda rights (description of rights omitted)
and he agreed to speak with me. Mr. Higgs stated that he went
to the wash on 10/31/11. Mr. Higgs stated that he wore a black
shirt. Higgs admitted that, while at the wash, he removed a
marijuana smoking pipe from a Mexican male’s pants pocket
without the Mexican male’s consent. Higgs stated that he
dropped the pipe onto the ground shortly thereafter. Higgs
stated that he later changed his shirt at a nearby apartment
complex.”
At a hearing on the motion, McGhee’s counsel noted he had
filed a severance motion based on the statements from Higgs and
Edwards and argued that such statements could not “be redacted
and not inculpate” McGhee, so McGhee could not get a fair trial if
they were admitted. The court disagreed and admitted the
9 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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redacted statements, finding there was no reference to any other
defendant or even mention of “we” or “they.” The statements also
did not shift blame to anyone else. For those reasons, the court
also denied McGhee’s motion to sever.
During opening and closing arguments, the prosecutor
repeatedly told the jury it could only use the statements against
the individual who made them and not against the other
defendants. Likewise, before the statements were introduced and
during formal instructions, the court instructed the jury it could
only use the statements against the individual who made them
and no one else.
Under Aranda and Bruton, a “ ‘ “ ‘nontestifying
codefendant’s extrajudicial self-incriminating statement that
inculpates the other defendant is generally unreliable and hence
inadmissible as violative of that defendant’s right of
confrontation and cross-examination, even if a limiting
instruction is given.’ ” ’ ” (People v. Capistrano (2014) 59 Cal.4th
830, 869.) The rule does “not apply to confessions that are not
incriminating on their face, but become so only when linked with
other evidence introduced at trial.” (Ibid., citing Richardson,
supra, 481 U.S. at pp. 206-207.) Thus, “admission of a
nontestifying codefendant’s confession against the defendant does
not violate the defendant’s confrontation right if the confession is
redacted to eliminate not only the defendant’s name but any
reference to his existence. [Citation.] ‘When, despite redaction,
the statement obviously refers directly to the defendant, and
involves inferences that a jury ordinarily could make
immediately, even were the confession the very first item
introduced at trial, the Bruton rule applies and introduction of

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the statement at a joint trial violates the defendant’s rights
under the confrontation clause.’ ” (Capistrano, supra, at p. 869.)
The statements admitted by the court plainly did not
violate Aranda and Bruton because, as the trial court recognized,
they did not refer to McGhee’s existence in any way. They did
not even use pronouns like “we,” “us,” “they,” or “them” to suggest
the presence of any other individual at the robbery. While the
statements might have incriminated McGhee when linked to
other evidence, that does not render the statements improper
under Aranda and Bruton. Further, both the prosecutor and the
court told the jury repeatedly it could only use each statement
against the defendant who made it and no one else. Under these
circumstances, we find no error.
b. Request to Excuse Jurors and for Mistrial
i. Procedural Background
McGhee contends the trial court deprived him of an
impartial jury when it refused to excuse three jurors during
deliberations or declare a mistrial after one juror expressed
concern someone might have been photographing them in the
courthouse parking lot. We disagree.
During deliberations, the trial court advised counsel the
court clerk received a call from Juror 2, who said as she was
leaving the courthouse the previous day a female in a black
Toyota sedan took photographs of her leaving the parking lot.
The incident upset her and she spoke to Jurors 8 and 3 about it.
She also had someone else drive her to court the next day.
The court separately interviewed Jurors 2, 3, and 8 about
the incident. Juror 2 explained to the court:
“[A]s I was pulling out, a little bit to my right there was a
black Toyota sedan, and as I was looking to my right I noticed a

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hand came out of the car. And to me it looked like it was a cell
phone, and it looked like it was pointed right at my car. So it
would be directly facing the front of my car. And I thought, did I
just imagine that or am I paranoid? So I drove home.
“I looked around to see if I was being followed. No. Got to
my daughter’s school. And I called Juror number eight. I don’t
have everybody’s number, just eight and the alternate. And I
said, did you notice anything funny when you were driving out of
the parking lot? Yeah, there was a black car taking selfies. I
said, ‘Are you sure they were taking selfies, because I thought the
camera was pointed to me.’ And she said, ‘I left after you and
thought they were taking selfies.’
“So she called Juror no—sitting next to me, Juror number
three. And Juror number three said, yes, she saw the phone
come out of the car, and she saw it flash. And she asked her, ‘Do
you think it was a selfie?’ And she said, ‘It looked like the flash
was towards me.’ And also one of the other jurors, the guy, I
don’t know what number he is, he said that when he was pulling
out [of] the parking lot, he also saw the phone come out, but he
thought they were taking selfies. So they thought they were
taking a lot of selfies, and we are paranoid. So somebody is
taking pictures of us, my car, my license.”
The court asked Juror 2 if she recognized the person, and
she said, “All I know, it was a female. I didn’t notice anything
else. I don’t know if I saw hair or how I know it was a female, but
the other two jurors also said it was a female.” The court
informed her it would tell the other jurors it would provide
escorts at lunch and asked her to follow the law and give both
sides a fair trial. Juror 2 asked if there were cameras in the
parking structure, and the court responded, “[E]verything will be

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looked into. But what I need you to do is not hold that against
any party. We don’t know if they were selfies. You don’t know
who it is associated with. It could be just someone taking
photographs. You have no idea if it relates to any of the parties
involved. Correct?” Juror 2 responded, “Correct.” The court
finished, “So what I will ask you to do is set this aside and be fair
to all sides. Can you do that?” Juror 2 responded, “Correct. As
long as I feel like I’m safe here.” The court said, “We’ll make sure
that you feel safe.” Juror 2 responded, “Okay.” She then agreed
not to discuss the issue with other jurors.
Juror 8 told the court: “I was starting to leave. I noticed
that there was a person sitting in the car. It was an all black car,
and the window was down. Their arms were out the window.
You couldn’t see their faces. And they had like a cell phone
camera, so I thought—at first I didn’t think too much. I thought
they are taking selfies. But usually you would see somebody’s
face or something. It just kind of—I didn’t really think too much
of it, except that it was just strange that the camera was outside
of the car, like almost all the way outside the car, and I knew
there was somebody else in the car with her. It was a young girl.
That much I do know. Skinnier arms. Kind of olive complexion.
[¶] And as I made a right-hand turn, I just thought, okay,
teenager taking selfies. Didn’t really think much of it. Kept
going. Then I received a phone call from Juror number two. And
she asked me, ‘Did you notice a girl in the black car taking
pictures of our cars?’ And I said I didn’t know if she was taking
pictures of her or us, and I told her—”
The court asked, “You thought they were possibly selfies?”
She responded, “I thought possibly selfies. And I thought—but
that is strange she saw it too. And she left after I did, probably

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like four or five minutes after I did. I think I was out, you know,
way before her because she was still talking to two other jurors in
the parking lot when I was leaving. And so I thought, well, that’s
kind of a long time to wait—or a long time to be taking selfies.
[¶] So then I called another juror and asked if she saw it, and she
said, yes. And I said, ‘Did you think they were taking selfies?’
And she said, well, the only thing that was strange to her was the
flash was going back or was not going back into the car, the flash
was coming out of the car.” The court asked, “So at this point you
don’t know who it was. Correct?” Juror 8 responded, “No.
Absolutely. I never saw the face. I could definitely identify it
was a female. There was probably a ring or something on the
finger. But just the shape of the arms, it was definitely a
female.” The court again inquired, “You thought they might have
been doing selfies?” Juror 8 responded, “Yes,” and added, “I’m
not a hundred percent sure they were taking pictures of our
cars.”
The court asked Juror 8 to set the matter aside, and she
responded she could do that and be fair to both sides. The court
instructed her to follow the law, and responded, “Absolutely.”
The court asked if she any “issues,” to which she responded, “I do
not have a problem with that.” She asked for an “[e]scort, maybe,
when we leave,” and the court said it may be able to arrange that.
She said her husband dropped her off that morning “just to play
it safe.” The court asked if she attributed the incident to anyone,
and she said, “Absolutely not.” She then agreed not to discuss
the issue with anyone.
Juror 3 told the court: “I was behind a black truck, and
there was a car on my left-hand side with a female that had stuck
her hand out the window with a cell phone. I only saw a flash go

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off. It could have been a reflection or flash, but it wasn’t towards
my car. I saw it towards the black truck in front of me. I thought
that was kind of odd somebody is taking pictures, but I can’t say
it was of myself. It was probably of the car in front of me.” She
added, “[T]here was somebody else in the passenger seat, but he
wasn’t paying attention to what she was doing.” She said she did
not recognize the person and “couldn’t tell” if they were taking a
photograph of themselves. She saw “the phone out the window
with the flash that went off.”
The court instructed her to disregard the incident. She
said she could follow that instruction and give all sides a fair
trial. She would not be affected by the incident in any respect.
When asked if she had spoken to other jurors, she said, “I spoke
with Juror number eight. She actually is the one that called me
yesterday. She asked if I had recognized something unusual.
That’s the person I had the first contact with. And, yes, we were
talking about it out there. I’m not going to lie and say we are
not.” The court asked, “Just generally among the jurors there
was a possible photograph[] taken yesterday?” She responded,
“Correct. That was it. We didn’t debate about what it was
indicating, just recognize there was a car and a female who was
taking pictures.” She indicated she would not discuss the issue
with other jurors.
McGhee’s counsel asked the court to excuse Jurors 2, 3, and
8 for cause. Edwards’s and Higgs’s counsel also moved for a
mistrial, which McGhee’s counsel later joined. The court denied
the mistrial, explaining, “I spoke to Jurors two, eight and three
and conducted extensive questioning of them. All of them were
somewhat unclear as to what occurred. One thought possibly it
was selfies. They all indicated it was somewhat suspicious. They

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were unable to link it to anyone involved in this case whatsoever.
They all indicated that they could put it aside and be fair to all
sides.” The court denied the request to dismiss any jurors “in
light of the fact there is no good cause shown, and in light of the
responses of the jurors indicating they could be fair and follow
the law.”
The court admonished the full jury: “Ladies and gentlemen
of the jury, it has come to my attention of an incident regarding a
cell phone that occurred yesterday in the parking lot. At this
point there is no evidence that it is connected with anyone
involved in this case. I’m going to be ordering you to disregard
anything you may have heard or saw about the incident. At this
point, you are also ordered not to further discuss this matter. I’m
also going to instruct you, you are not to consider this incident for
any reason whatsoever, and not let it affect your deliberations in
any way. [¶] Also, just as an abundance of caution, the court is
going to provide escorts after lunch, or at the time of lunch, and
when you leave the courtroom. So that’ll be provided for you. So,
again, you must not consider this incident for any reason
whatsoever, and not let it affect your deliberations in any way.”
The court asked if anything would prevent the jurors from being
fair and impartial, and no juror raised a hand.
Later, McGhee’s counsel augmented the record as follows:
“Description by one or more of the jurors was they saw a dark-
colored car and an arm extended outside, one of the jurors said,
and was using two arms to extend outside the car. And one of the
jurors described that arm, olive-colored arm, and I’m sure the
court has figured out Mr. Higgs had his sister in court, a young
African American female, and McGhee’s family has had
Mr. McGhee’s sister in court, a young African American female.

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So the concern is that any perception of something being done
against a juror I think would be more against the defense than
certainly the prosecution. So I wanted to augment the record
with that because, absent that, anybody reviewing this record
would not know those people were in the courtroom.”
The prosecutor responded: “As I think we’ve all been able
to observe, but the record would be silent on this issue, but
throughout this trial there have been a number of audience
members. I think that there may have been a couple that were
not African American, but I believe that the rest were African
American, most of whom are very dark complected. There are
some of the audience members that are lighter skinned, but I
couldn’t classify any of them as being olive-skinned individuals.
[¶] So my feeling is that nobody in the courtroom, nobody in the
audience will be classified as having olive skin, and therefore will
not be potential suspects in the photographing. Additionally, I
believe that the jurors, when questioned, stated that they did not
identify anybody, they did not identify the photographer, so to
speak, as being anybody associated with this case, and I
assume—I think the implication was clear that included audience
members.”
The court again denied the mistrial motion for the reasons
previously explained on the record. The court noted Juror 2 “did
appear to be upset; however, she did indicate she would be able to
follow the court’s orders and directions and would be able to
continue to be a juror.”
ii. Analysis
A criminal defendant has a constitutional right to trial by
an impartial jury, so a “juror’s misconduct or involuntary
exposure to certain events or materials other than what is

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presented at trial generally raises a rebuttable presumption that
the defendant was prejudiced and may establish juror bias.”
(People v. Merriman (2014) 60 Cal.4th 1, 95; see People v. Harris
(2008) 43 Cal.4th 1269, 1303 (Harris) [“ ‘[T]ampering contact or
communication with a sitting juror . . . usually raises a rebuttable
“presumption” of prejudice.’ ”].) That presumption may be
rebutted and the verdict left undisturbed “if a reviewing court
concludes after considering the entire record, including the
nature of the misconduct and its surrounding circumstances, that
there is no substantial likelihood that the juror in question was
actually biased against the defendant. [Citations.] Our inquiry
in this regard is a ‘mixed question of law and fact’ subject to
independent appellate review. [Citation.] But ‘ “[w]e accept the
trial court’s credibility determinations and findings on questions
of historical fact if supported by substantial evidence.” ’ ”
(Merriman, supra, at p. 95.) “An admonition by the trial court
may also dispel the presumption of prejudice arising from any
misconduct.” (People v. Tafoya (2007) 42 Cal.4th 147, 192-193.)
It is not clear on this record whether the photographing
incident recounted above related to the trial here or any of the
participants, so we are hesitant to conclude there was any
misconduct that might have tainted the jury. But even if it
constituted misconduct raising a presumption of prejudice, that
presumption was rebutted because the record demonstrates there
was no substantial likelihood any juror was actually biased
against McGhee. The trial court extensively questioned Jurors 2,
3, and 8 about the incident, and none of them recognized the
person with the cell phone taking photographs or could even be
certain she was taking photographs of them. If she was, none of
the jurors attributed her conduct to either the prosecution or any

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of the defendants. And all of them affirmed they could set the
incident aside and judge the case impartially, even if Jurors 2
and 8 expressed some desire to “play it safe” with a court escort
outside the courtroom. (See Harris, supra, 43 Cal.4th at p. 1304
[courts may rely on statements from jurors that event would not
affect deliberations].) Further, the court admonished the entire
jury not to consider the incident or let it influence deliberations
in any way, and no juror expressed any reluctance in doing so.
Thus, the court properly denied a mistrial and properly declined
to excuse any jurors.
c. Challenge to Sentence
McGhee briefly contends the trial court failed to make an
adequate record under Miller before sentencing him to life
without parole as a juvenile. We find the record here adequate to
support McGhee’s LWOP sentence.10
Miller requires a sentencing court, “in exercising its
sentencing discretion, to consider the ‘distinctive attributes of
youth’ and how those attributes ‘diminish the penological
justifications for imposing the harshest sentences on juvenile
offenders’ before imposing life without parole on a juvenile
offender.” (Gutierrez, supra, 58 Cal.4th at p. 1361.) Under
10 McGhee’s appellate counsel complains he made “repeated
motions to augment the record” on appeal, but as of the filing of
appellant’s opening brief—January 12, 2016—he had not received
the transcript of McGhee’s sentencing. As respondent points out,
however, it appears the record was augmented with that
transcript on July 8, 2015. McGhee filed no reply brief, so we do
not know why his appellate counsel was unaware the transcript
had been added to the record before he filed the opening brief. In
any case, we decline respondent’s invitation to summarily reject
McGhee’s contention and will review the merits.

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Miller, those attributes include (1) a juvenile offender’s
“ ‘chronological age and its hallmark features—among them,
immaturity, impetuosity, and failure to appreciate risks and
consequences’ ”; (2) “any evidence or other information in the
record regarding ‘the family and home environment that
surrounds [the juvenile]—and from which he cannot usually
extricate himself—no matter how brutal or dysfunctional,’ ”
including “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”; (3) “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’ ”; (4) “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’ ”; and (5)
“any evidence or other information in the record bearing on ‘the
possibility of rehabilitation,’ ” including the extent or absence of
criminal history. (Gutierrez, supra, at pp. 1388-1389.)
Here, as the court noted at sentencing, McGhee was facing
a third strike sentence because the jury found the prior
conviction allegations true. The prosecutor argued for an LWOP
sentence because McGhee “not only murdered somebody and
permanently injured somebody else, but he got two other people
involved that probably never would have been involved in
something like this. And one of them was a close friend of his,

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and he really destroyed that person’s life. He got another person
he barely knew involved, and completely destroyed that person’s
life—” McGhee interjected at that point: “They grown men.”
The prosecutor continued, “This defendant caused so much pain
to so many people; pain that’ll not go away. Anthony Sanchez
[(Sanchez-Torrez’s son)] will never have a father. [Rick]
Sandoval will never be the same. This defendant has behaved in
such a callous fashion over a period of time. He shot at Nickolas
Gordian under a bridge. He conducted himself with such a
wanton and reckless disregard for human life. He’s a danger.
And throughout this process I’ve not seen one wit [sic] of remorse
from him. Not any.”
McGhee’s counsel responded, “[T]his is a young man who
was 17 at the time. 17. And I don’t know if counsel remembers
his youth. I have a clear recollection of mine. It’s just a matter of
luck that I didn’t get in a lot of trouble when I was 17. 17-year-
olds are not adults. They do things impulsively. They don’t think
things out. Their mind is not fully developed. They are going
through a lot of emotional changes in their body, and they act out
differently. [¶] Teenagers are treated differently because they
are not adults. They’re not—and to say that a 17-year-old should
be held when he is kept in prison at the expense of the state until
he is my age or older is a crime in itself, in my opinion. In fact,
the case law—there is a decision now that says minors should not
get life without possibility of parole because we’ve had cases
where the person had life without the possibility of parole, comes
back to court and the sentence has been reduced because the
sentence must not be life without the possibility of parole. It is
cruel and unusual punishment. It is punishment for a crime for
actions of a child. [¶] To say that—I don’t know whether [the

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prosecutor] had any private conversations with my client. To
make the determination that he doesn’t have any feelings of
remorse for his actions is a statement without any basis. Once
again, we can do something. We’re here to act in a mature way,
and mature adults should not treat a child like an adult and give
them life without the possibility of parole.”
The prosecutor pointed out McGhee had just called
Edwards and Higgs “grown men,” when they were the same age
as he was when they committed the crimes. So McGhee “is
saying that for all intents and purposes everybody was
functioning as grown men and they were acting with the full
cognizance of what was going on. This defendant knew what he
was doing and he needs to be locked up forever.”
In sentencing McGhee, the court expressly recognized the
requirements of Miller: “Looking at the cases regarding
determining whether the defendant will get an L.W.O.P. sentence
or life, when a court elects to sentence a juvenile offender to life
without parole for homicide offense, the court must weigh the
applicable factors set forth in the [sic] Miller v. Alabama. And
the [sic] Miller v. Alabama holds that a mandatory life of
imprisonment without parole for those under the age of 18 at the
time of their crime violates the Eighth Amendment prohibition
on cruel and unusual punishment.”
The court continued, “Miller does not bar punishment of
L.W.O.P. for minors, but it does determine that the sentencing
court must consider various factors set forth in the Miller
decision, and in this matter the court has considered the Miller
factors in reaching his conclusion. In this case, the facts of the
case—and, again, I’m not going to go through each one of the
Miller factors, but I have reviewed them and considered them in

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my sentencing. [¶] The various facts of the actual incident, just
for the record, is that the defendant arrives with a weapon. He
goes to rob an individual with an accomplice. Fires the weapon
multiple times at a robbery victim. When a good Samaritan
comes to the robbery victim’s aid, that good Samaritan is shot.
The good Samaritan falls and dies right in front of his young son
who sees his father die in front of him. The defendant then again
turns the gun on the robbery victim and fires a weapon. [¶] But
for the fact that gun misfired, this would be a double murder.
The defendant has showed a conscious disregard for human life,
and I do believe that this is one of those rare occasions where the
factors set forth and the type of the crime reflects [an] irreparable
degree of corruption and harm, and it’s just an egregious crime.
So I do believe an L.W.O.P. sentence is appropriate, given the
Miller factors. I have considered them.”
This record satisfies Miller. Although the court did not
expressly discuss all the Miller factors, McGhee’s counsel argued
that his immaturity and impulsivity counseled against an LWOP
sentence. The court considered and rejected that argument,
finding the egregiousness of the crime demonstrated an
irreparable degree of corruption that justified treating McGhee as
an adult subject to an LWOP sentence. Having recognized its
discretion under Miller, the court acted well within that
discretion in finding McGhee’s actions in convincing two
accomplices to commit a robbery that led to McGhee’s cold,
callous murder of an innocent bystander attempting to help the
robbery victim was one of those “rare occasions” justifying an
LWOP sentence.

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DISPOSITION
The judgments are affirmed.
FLIER, Acting P. J.
WE CONCUR:
GRIMES, J.
SORTINO, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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