Filed 3/30/15 P. v. Aguon CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL JAY AGUON et al.,

Defendants and Appellants.

 D064367

 (Super. Ct. No. SCD233469)

APPEAL from a judgment of the Superior Court of San Diego County, Joan P. 

Weber, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and 

Appellant Michael Jay Aguon.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and 

Appellant Rafael Meraz.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, 

Eric A. Swenson and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

A jury convicted Michael Jay Aguon and Rafael Meraz of first degree murder (Pen. 

Code,1 §187, subd. (a).) The jury found Meraz was a principal and a principal in the 

murder personally used a firearm and proximately caused great bodily injury, within the 

meaning of section 12022.52, subdivisions (d) and (e)(1). It also found with respect to 

Aguon that a principal in the offense was armed with and used a firearm (§12022.53, subds. 

(d), (e)) and Aguon personally used a firearm (§12022.53, subd. (d)). In addition, the jury 

found that Meraz and Aguon acted for the benefit of a criminal street gang, within the 

meaning of section 186.22, subdivision (b).

The court sentenced Aguon to prison for 25 years to life for the murder and a 

consecutive 25 years to life for the personal firearm use.

The court sentenced Meraz to prison for 25 years to life for the murder and a 

consecutive 25 years to life for the weapons allegations. Before trial, Meraz pled guilty to 

felon in possession of a firearm, possession of a loaded firearm, and felon in possession of 

ammunition. (Former §§ 12031, subd. (a)(1); 12021, subd. (e); 12316, subd. (b)(1).) 

Therefore, at the sentencing hearing, the court imposed on Meraz a concurrent three years 

for the felon in possession of a firearm count, and stayed the sentence under section 654 for 

possession of ammunition and possession of a loaded firearm counts.

Aguon appeals, contending (1) his verdict must be reduced to second degree murder 

under section 1157 and (2) the prosecutor committed misconduct during closing argument. 

He also maintains the abstract of judgment must be corrected.

 

1 Statutory references are to the Penal Code unless otherwise specified.
3

Meraz appeals, arguing the trial court improperly allowed unnecessary, prejudicial, 

and cumulative gang evidence to be admitted, and his sentence violates the Eighth

Amendment.

Both Aguon and Meraz join in each other's arguments.

We agree with Aguon that the abstract of judgment should be corrected. We 

conclude the remaining issues are without merit, and thus, affirm the judgment, but remand 

the matter back to the superior court to correct the abstract of judgment.

FACTUAL BACKGROUND

Prosecution

On October 21, 2007, Victor Balderas and Jimmy Parker were hanging out in front 

of Freese Elementary School in Lomita Village, talking to some girls. Meraz rode up on a 

bicycle, throwing gang hand signs as he approached. He asked the group if it was from 

"Pussy Hills," a derogatory term for Lomita Village gang rivals Paradise Hills. He said he 

was "Grims" from "Lomita." He talked to them as if they were gang members, but when 

they told him they did not "bang," and were not disrespecting him, he said, "Cool," and left. 

He appeared to be either drunk or high.

Robert Carranza joined the group, and Balderas told him what had just happened. At 

that time, Meraz rode his bike back to the group and said something about blasting them. 

He repeated his comments about "Pussy Hills." He gave Carranza an overly firm handshake 

or overly aggressive fist bump. He asked if they wanted to get "blasted." He pulled away 

his jacket to reveal a gun in his waistband. Then he rode away.
4

Balderas and Carranza decided to go hang out instead at the Balderas house, which 

was just down the street. About an hour and a half later, they, along with other Balderas 

family members including Vidal "Junior" Balderas (Vidal), were hanging out in front of the 

house listening to an oldies music show on the radio. Meraz rode up on his bicycle flashing 

gang hand signs in time to the music. Vidal confronted him, asking him why he was 

disrespecting the household. Meraz explained that this was Lomita Village, and he was 

Grims. Vidal said they did not bang at that house. Meraz kept saying this was "their"

neighborhood. Vidal told him to leave. Meraz lifted up his shirt, revealing his gun, and 

started to advance on Vidal.

Carranza sprang forward and punched Meraz in the face, knocking him to the 

concrete. Meraz pulled his gun out as Carranza held him down. Carranza kept hitting him. 

Vidal eventually pried the gun from Meraz's hands. He told Meraz, "You're going to stay 

right here, homie and wait for the police." He lectured Meraz about disrespecting his 

family. He told Meraz that if the older homies in Lomita Village had taught him to 

disrespect nongang houses, then they had taught him wrong. He said he was going to talk to 

the older homies and that they would set Meraz straight.

Vidal's sister, Wendy Balderas, called 911. In the call, Vidal and Meraz can be heard 

in the background. Vidal chastised Meraz for coming around and "disrespecting" with a 

gun, and saying, "I don't care homes, we don't care about the neighborhood, homes. I don't

care about your neighborhood." Meraz responded, "I'm gonna fuck it up homie."
5

Meraz got cut when he hit the concrete. The police took him to the hospital, where 

he denied drug or alcohol use, but tested at a 0.13 percent blood alcohol level. He had scalp 

lacerations that required staples to close, and a fractured thumb. The police recovered the 

gun, which was loaded with 11 rounds.

Ten days later, Vidal was killed in front of the Balderas house after returning from 

trick-or-treating with his four-year-old daughter. There were three assailants. Vidal

struggled with one at the entrance to the yard and was shot. The men started running away, 

and Vidal took a few steps after them, but then fell face down on the ground. Vidal suffered 

six gunshot wounds, two through the heart. Just before the shooting, one of the assailants 

said, "What's up now."

The shooter was wearing a black hoody, with a bandana covering his face. One of 

the others had a mask similar to what the villain wore in the movie Scream. One had a skull 

mask. There were no shell casings at the scene, which suggested that the weapon fired was 

a revolver. All the bullets recovered at the scene were fired from the same gun.

Some children trick-or-treating in the neighborhood heard gunshots and a woman 

scream and saw the men run away. The men were masked, one with a Scream mask, 

another with a skull mask, and one with a bandana. One of the men was holding a rifle. As 

the men went by them, they asked what had happened. The man holding the rifle turned 

and stared at them, but one of his companions said, in Spanish, "Hey, dude. Calm down. 

Don't do anything. We finished."
6

Shortly after the shooting, a gang suppression detective arrested Mauricio Montiel 

for a curfew violation near Meraz's house. Montiel had bullets and a loaded speed loader 

for a revolver in a nylon bag in his pocket. He said he was coming from a friend's house 

and had found the items on the ground. His cell phone reflected a call at 10:15 p.m. that 

night to "Grims" at Meraz's home number. The cartridges in the speed loader in Montiel's 

pocket were .38 specials, consistent with the spent bullets recovered from the scene.

Police searched Meraz's house a few hours after the shooting and found a skull mask 

under some jeans. The mask had Meraz's DNA on it. They found a black bandana halfway 

under a bed. They found a pair of pants in a bedroom with a paper bearing the name 

"Mikey" as well as Meraz's telephone number in the pocket.

Subsequent testing detected several gunshot residue particles (one "characteristic"

and several "consistent") in the fabric of the pants. A black hooded windbreaker had several 

"consistent" gunshot residue particles.

Meraz claimed he had not left the house that day since coming home from school. 

He maintained this story even when confronted with the fact his brother and mother had told 

police he had been out of the house that evening. His brother told police that Meraz came 

home about 8:00 p.m. or 8:30 p.m. that night, changed out of his clothes right away, and 

took a shower.

Meraz admitted, however, that Montiel had been at his house that night.

Elizabeth Hiday was Kirk Borja's ex-wife. Both she and Borja were Lomita Village 

gang members. Three days after the shooting, Borja asked Hiday to drive him to Aguon's 
7

house. She did, and once there, encountered Aguon and his cousin Benny Tejeda, also a 

Lomitas Village gang member. Aguon and Tejeda lived in the same house.

Borja asked, "What happened?" and Tejeda slapped Aguon on the back of the head, 

saying, "This fool did the wrong job—This fool didn't even do the job right. He got the 

wrong brother." Hiday asked if Tejeda meant Vidal, and he said "Yes." Aguon then told 

how about a week earlier, another homeboy had gone to confront Balderas about being from 

Paradise Hills, but Victor's older brother, Vidal, had beaten him and taken his gun. Aguon 

then said that he and two other guys had gone to the Balderas house on Halloween. They 

had a Scream mask. They got into a fight with Vidal when he blocked them from getting 

into the house. There had been two gunshots, and Vidal had kept fighting. After two more 

gunshots, Vidal dropped. Aguon and the others took off running.

While telling this story to Hiday and Borja, Aguon was, in Hiday's words, "cocky"

and "giggling." She found his attitude offensive because she was friends with Vidal's 

brother.

Hiday had been a paid police informant for some time, and had used her payments to 

support her drug habit. She had stopped using drugs and committing crimes in 2007, a few 

months before the shooting, and had gotten a job with an organization called "Second 

Chance." She was not paid for the information she gave about Vidal's murder, and the 

police promised her she would never have to testify. Nevertheless, several years after 

providing the information, with her life finally straightened out, she was told she was going 

to have to testify at trial. She had to leave her job at Second Chance and be relocated in the 

witness protection program.
8

Hiday had thought Aguon's surname was Tejeda, since he lived with Benny Tejeda. 

Police checked their records for a "Mikey Tejeda," but came up with nothing. The police 

appear to have let the matter drop until reopening the case in 2010 when Aguon was 

arrested.

While in jail in 2011, Aguon learned it was Hiday who had told the police about his 

involvement in Vidal's murder, and he called home to instruct his cousin Benny to deny to 

investigators that any such conversation had ever happened. Benny was not home, so he 

told Benny's brother, "I was just gonna tell your brother . . . I talked to my

attorney . . . today, and, and he's giving—gave me the lay-down, . . . what's going

on . . . . I was gonna have that fool go and talk to you guys or something, and then see

(unin)— you know what I mean?" "But I don't think he's gonna go. I think he's probably 

send somebody else. Like an investigator . . . ." He continued, "my attorney says some of 

the stuff that, uh, that whoever's saying that shit . . . That some of that stuff . . . supposedly it 

happened in front of the house, and [Vidal] was there. You know what I mean? And, and 

that should never even happened . . . That's wh—that's why I was like—I was gonna tell 

[Vidal], like, 'Man, that's some bullshit,' you know?" "Yeah, . . . they're saying that—

saying that was said in front of the house and he—[Vidal] was there . . . ." "If anything, uh, 

like, uh, if anything I could just be like, 'Man, you could even ask my cousin, you know?' "

He continued, "Yeah, make sure that fool knows . . . That fucking shit's some bullshit. . . . 

Never even happened. . . . You know what I mean? That mean I'm in here for nothin' and 

shit. Alright."
9

San Diego Police Department Detective Damon Sherman testified as the People's 

expert on the Lomita Village gang. According to Sherman, Lomita Village has all the 

characteristics required by the Penal Code for a criminal street gang. In Sherman's opinion, 

Meraz, known as Grims, was a Lomita Village gang member at the time of the shooting. 

Sherman also opined Aguon, known as "Villen," was a Lomita Village gang member in 

2007.

In hypotheticals mirroring the facts of the case, Sherman opined as follows: If a 

gang member had his gun taken and was beaten so badly he had to go to the hospital, and 

the gun was given to law enforcement, that was an act of disrespect which, in gang culture, 

required a retaliatory act using greater force and power to inflict a much greater injury. 

Sherman further opined the shooting, if committed by multiple Lomita Village gang

members, was committed in association with Lomita Village and benefited that gang. It 

repositioned the gang and the disrespected gang member in the gang community and 

reinstilled fear in the civilian community. If the phrase, "what's up now" was said at the 

time of the shooting, this demonstrated the disrespected person's affirmation that he had

won in the long run. In Sherman's opinion, if there were statements after the shooting, such 

as "we're finished now," they showed the job was completed as planned.

Defense

Aguon's defense at trial was denial. He presented alibi witnesses. He also attempted 

to impeach Hiday, by offering evidence Hiday was familiar with the justice system. She 

had multiple felony convictions. Following a conviction in 2005, she began working as a 

confidential informant for both the Chula Vista and National City Police Departments. As a 
10

result of her efforts, she was given a probationary sentence. She violated the terms of 

probation with a series of check forgeries and began working with a deputy district attorney. 

She agreed to do a training video in exchange for summary probation and continued to work 

as an informant. During this time, Hiday was a drug addict and spent her informant 

compensation on drugs. She did not pay any of the considerable restitution owed in any of 

her cases. In 2007, Hiday got sober and started working at a nonprofit organization. She 

worked there until her relocation. Since her relocation, Hiday has maintained employment, 

but the income does not cover her monthly expenses. The district attorney's office 

originally paid approximately $44,000 in relocation fees and, at the time of trial, paid her 

rent, food and utilities and gave her an additional monthly stipend of $975.

Meraz's defense at trial was that the prosecution failed to prove its case.

DISCUSSION

I

THE VERDICT FORMS

Count 1 of the amended information charged that "[Meraz and Aguon] did 

unlawfully murder VIDAL BALDERAS, a human being, in violation of PENAL CODE 

SECTION 187(a)." The prosecution proceeded on a theory the homicide constituted murder 

in the first degree based on premeditation and deliberation. The jury was so instructed. The 

trial court also instructed the jury on second degree murder.

Consistent with the instructions, the jury was provided with two verdict forms. One 

gave the jury the option to return a verdict of first degree murder. The second allowed the 

jury to return a second degree murder verdict. Each respective form either identified the 
11

verdict as first degree murder or second degree murder "as charged in Count One of the 

Information."

The verdict returned by the jury stated the following in relevant part: "We, the

jury, . . . find [Aguon] Guilty of the crime of FIRST DEGREE MURDER, in violation of 

Penal Code section 187(a), as charged in Count One of the Information."

Appellants now contend that, because the information was silent as to the degree and 

the jury was not asked to return, and did not return, any specific finding on the truth of the 

allegation of premeditation and deliberation, the language of the verdict forms was 

"insufficient to satisfy the requirement of degree specificity in section 1157 and, therefore, 

the homicide verdict must be fixed in the second degree by operation of law." We disagree.

This precise issue was addressed by the Fifth District in People v. Jones (2014) 230 

Cal.App.4th 373 (Jones). In Jones, the subject verdict was substantially similar to the two 

at issue here. The verdict in Jones stated the jury convicted the defendant of first degree 

murder as "charged in Count One of the Information . . . ." (Id. at p. 376.) The information 

in Jones, like the information here, did not specify murder in the first degree. (Ibid.) The 

defendant argued " 'the jury failed to determine the degree of the crime as required by 

section 1157. Therefore, the verdict must be fixed as murder in the second degree.' " 

(Jones, supra, at p. 376.)

The court disagreed, noting: "Section 1157's requirement that the degree be 

specified 'may be satisfied in two ways: (1) by a finding that specifically refers to the degree 

of the crime by its statutory numerical designation; and (2) by findings that encompass the 

statutory factual predicates of the degree of the crime. [Citation.]' [Citation.] In the present 
12

case, the jury's verdict explicitly specified a finding of first degree murder. Section 1157's 

requirement thus was satisfied." (Jones, supra, 230 Cal.App.4th at p. 377.)

We agree with the Fifth District in Jones and determine that the verdicts here did not 

run afoul of section 1157. "That the verdict[s] referred to the crime 'as charged in . . . the 

Information,' and the information merely charged generic murder without specifying the 

degree thereof, does not change this, nor does the fact there was no separate finding as to 

degree." (Jones, supra, 230 Cal.App.4th at p. 377.)

By enacting section 1157, "[t]he Legislature has required an express finding on the 

degree of the crime to protect the defendant from the risk that the degree of the crime could 

be increased after the judgment." (People v. Goodwin (1988) 202 Cal.App.3d 940, 947.) 

We find no such chance here. "Section 1157 requires that the jury find the degree of the 

crime and explicitly specify that degree in the verdict form." (Jones, supra, 230 

Cal.App.4th at p. 378.) The verdict for Aguon and the verdict for Meraz expressly stated a 

finding of first degree murder. In other words, the jury's intent to convict Appellants of first 

degree murder was abundantly clear.

Under the circumstances, each verdict form's reference to the information created no 

fatal uncertainty or ambiguity, and did not result in a legal impossibility. Because the 

degree of the crime was explicitly stated, Appellants' substantial rights were not prejudiced. 

Appellants are not entitled to have their convictions reduced to second degree murder. (See

Jones, supra, 230 Cal.App.4th at p. 379.)
13

II

PROSECUTORIAL MISCONDUCT

Appellants contend the prosecution committed prejudicial misconduct during closing 

argument by diluting the meaning of proof beyond a reasonable doubt. We disagree.

A. Background

During closing argument, the prosecution discussed reasonable doubt. He did so 

while showing the jury an exhibit containing the text of CALCRIM No. 220: "Proof 

beyond a reasonable doubt is proof that leaves you with an abiding conviction that the 

charge is true. The evidence need not eliminate all possible doubt . . . because everything in 

life is open to some possible or imaginary doubt."

In discussing reasonable doubt, the prosecutor said:

"What is reasonable doubt? Well, it's an abiding conviction. [¶] The 

law is—defines it in this way. Says if it leaves you with an abiding 

conviction that the charge is true—it doesn't need to eliminate all 

possible doubt, cause everything in life is open to possible doubt.

"Your job is not to go back and start speculating or guessing or 

thinking about possibilities. It's to use your common sense, use all the 

evidence that's presented and come to a conclusion that leaves you with 

that abiding conviction.

"This is the way I describe it. At some point after you've convicted 

Grims and Villen of this crime, you're going to go back to your lives. 

People are going to ask you: You were on jury service. You were on 

jury duty. What was that case about?

"You're going to tell them it was a murder. It was a gang murder. It 

was a retaliation murder.
14

"It's when you're talking to them about everything that you witnessed 

in this case that you're still going to have the abiding conviction deep 

inside you. You're going to tell them about all the evidence that you 

heard. 

"They're going to say: Well, what was the case about? [¶] You tell 

them it was a gang retaliation killing. A family had been confronted by 

a gang member in front of their house . . . . [¶] What happened? [¶] 

Talk to them about the 911 call, about the witnesses who came in, 

testified about Grims banging Lomita. . . . [¶] Tell them about this 

violent criminal street gang . . . [¶] Tell them about the 911 call that 

captured it all, that you had no doubt as to what happened on October 

21. [¶] Tell them about the DNA that was on the gun, about how 

Grims lied about even having that gun. [¶] And tell them how Vidal 

Balderas, the guy who was chastising Grims . . . . how you could hear 

his voice . . . on that 911 call.

"They're going to say: Well, what happened? [¶] Tell them ten days 

later the defendants came back and they murdered him. [¶] They're 

going to ask why. [¶] Explain to them all the gang evidence . . . [¶] 

Talk about the fact that . . . all the witnesses . . . described basically 

three men in this group: Skeleton, Scream, [and] Bandanna. [¶] They 

found the skeleton mask inside Grims' house that had his DNA on it. 

He couldn't buy his way out of that one. [¶] Talk to them about how 

he said he was home from 1:30 on, but we didn't believe a word that he 

said because his brother, he came in and actually told us the truth; said 

that he got home right after the murder, went to his room, changes his 

clothes, took a shower.

"Talk about the poofy jacket, the black jeans that had the Mikey note 

inside of them, each with Grims' DNA on it.

"Talk about the calculator that was the lineup and that the person who 

was out of custody . . . admitted going and doing the shooting with two 

of his homies. [¶] Talk about why you believed Elizabeth Hiday, why

you knew that she didn't have a motive to lie. [¶] As you're telling this 

story to the person, you're still going to feel that abiding conviction 

because you're going to know that it's the truth. [¶] That's what beyond 

a reasonable doubt is."
15

Aguon's trial counsel objected to the prosecution's closing argument, claiming he was 

"watering down the reasonable doubt instruction" and committing prosecutorial misconduct. 

The court overruled the objection, stating that it believed the prosecution was merely 

summarizing the evidence.

In his rebuttal closing argument, the prosecutor reiterated:

"You will have that abiding conviction when you're telling your 

neighbor, your sister, your brother, your mother, whoever it is, your 

employer who hasn't seen you in a month exactly why you held them 

accountable, exactly why you found them guilty of first degree 

murder."

Aguon's attorney did not object to anything in the rebuttal closing argument.

B. Analysis

As a threshold matter, the People argue Appellants forfeited their challenge to the 

closing argument by failing to object at trial. The record does not support the People's 

position. Aguon's counsel clearly objected to the prosecutor's closing argument on the same 

grounds that he raises here. His argument was not forfeited, and thus, we address 

Appellants' contention on the merits.

Here, Appellants insist the prosecutor told jurors that an abiding conviction was akin 

to the emotional comfort jurors had in discussions in their daily lives. They maintain that 

the prosecutor's argument had the effect of lowering the burden of proof. To support their 

position, Appellants rely principally on two cases: People v. Nguyen (1995) 40 Cal.App.4th 

28 (Nguyen) and People v. Johnson (2004) 119 Cal.App.4th 976 (Johnson). We find these 

authorities distinguishable.
16

In Nguyen, the prosecutor made the following statements to the jury during 

summation: " 'The standard is reasonable doubt. That is the standard in every single 

criminal case. And the jails and prisons are full, ladies and gentlemen. [¶] It's a very 

reachable standard that you use every day in your lives when you make important decisions, 

decisions about whether you want to get married, decisions that take your life at stake when 

you change lanes as you're driving. If you have reasonable doubt that you're going to get in 

a car accident, you don't change lanes. [¶] So it's a standard that you apply in your life. It's 

a very high standard. And read that instruction, too. I won't paraphrase it because it's a 

very difficult instruction, but it's not an unattainable standard. It's the standard in every 

single criminal case.' " (Nguyen, supra, 40 Cal.App.4th at p. 35.)

The court in Nguyen held that the prosecutor's argument was improper and "strongly 

disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to 

decide such questions as whether to change lanes or marry." (Nguyen, supra, 40 

Cal.App.4th at p. 36.) The court further held that the improper argument was harmless 

because the prosecutor directed the jury to read the reasonable doubt instruction and the jury 

was correctly instructed on the standard. (Id. at pp. 36-37.)

In Johnson, supra, 119 Cal.App.4th 976, the trial court discussed the reasonable 

doubt standard in questioning prospective jurors. In doing so, the "court equated proof 

beyond a reasonable doubt to everyday decisionmaking in a juror's life." (Johnson, supra, 

119 Cal.App.4th at p. 980.) For example, the court told the jurors "that jurors who find an 

accused person guilty or not guilty engage in the same decisionmaking process they 'use 

every day. When you get out of bed, you make those same decisions.' " (Id. at p. 983.) In 
17

closing argument, "the prosecutor took his cue from the court's reasonable doubt 

instructions, characterized a juror who could return a guilty verdict without 'some doubt'

about Johnson's guilt as 'brain dead,' and equated proof beyond a reasonable doubt to 

everyday decisionmaking in a juror's life: [¶] 'As Judge Oberholzer explained to you even 

with yourself, the things that you've done in your own life, there has always been, at the 

minimum, some kind of bit of doubt in the back of your mind about whether or not what 

you're doing is right or wrong. Even though you felt really strongly about it, there is still 

kind of lingering doubt. That's always going to be there.' " (Ibid.) The trial court instructed 

the jury with CALJIC No. 2.90.2

The Court of Appeal held that "the court's tinkering with the statutory definition of 

reasonable doubt, no matter how well intentioned, lowered the prosecution's burden of proof 

below the due process requirement of proof beyond a reasonable doubt." (Johnson, supra, 

119 Cal.App.4th at p. 985.) The court concluded that the improper description of the 

burden of proof constituted structural error and was reversible per se. (Id. at p. 986.)

 

2 As set forth in Johnson, CALJIC No. 2.90 read: " 'A defendant in a criminal action 

is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt 

whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This 

presumption places upon the People the burden of proving him guilty beyond a reasonable 

doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because 

everything relating to human affairs is open to some possible or imaginary doubt. It is that 

state of the case which, after the entire comparison and consideration of all the evidence, 

leaves the minds of the jurors in that condition that they cannot say they feel an abiding 

conviction of the truth of the charge.' " (Johnson, supra, 119 Cal.App.4th at p. 984.)
18

In each of the cases relied upon by Appellants, the examples of everyday decisions 

made by jurors were expressly and unambiguously used to expound upon the reasonable 

doubt standard. By contrast, the prosecutor in the instant matter did not reference any every 

day decision a juror would make. The comments appear to be directed not at the burden of 

proof, but strength of the evidence. In fact, it appears the prosecution was arguing that the 

evidence of guilt was so convincing that the jurors would remain convinced over time. This 

definition of an abiding conviction is consistent with how our high court defined that 

phrase. (See People v. Brigham (1979) 25 Cal.3d 283, 290 [noting abiding connotes "[t]he 

lasting, permanent nature of the conviction . . ."].) Put differently, there is nothing in the 

closing argument here that could lead the jury to believe the reasonable doubt standard is 

anything less burdensome than what is contained in CALCRIM No. 220, which was shown 

to the jury during the prosecution's closing argument. We determine the court did not err in 

finding no prosecutorial misconduct based on the closing argument.

III

GANG EVIDENCE

Appellants3 claim the trial court erred in admitting "unlimited and largely 

unnecessary gang evidence." They assert the evidence was largely cumulative and deprived 

them of their rights to due process and a fair trial.

 

3 Aguon joined all aspects of Meraz's appeal, including Meraz's objection to the gang 

evidence. However, in reviewing the gang evidence, it appears the lion's share of it was 

aimed only at Meraz. Meraz's arguments in his briefs focus primarily on the evidence as it 

relates to him. In the record, it does not appear Aguon's counsel was concerned with the 

gang evidence Meraz now challenges. Moreover, there is nothing in Aguon's or Meraz's 
19

A. The Gang Evidence

Meraz identifies three types of gang evidence that he claims was erroneously 

admitted at trial: (1) testimony from several percipient witnesses about Appellants' gang 

involvement; (2) telephone calls from jail made by Meraz; and (3) testimony from the 

prosecution's gang expert.

B. Pre-trial Discussion of Gang Evidence

Prior to trial, the court discussed gang evidence at length with the parties. Meraz's 

counsel sought to limit the amount of gang evidence admitted at trial. The prosecution 

stated that witnesses would be called to avoid the use of testimonial hearsay by the gang 

expert as well as to prove the gang allegations against Meraz. Meraz's attorney argued that 

the prosecution's proposed use of multiple percipient witnesses to offer gang evidence 

would result in several "mini trials" involving a separate gang related incident involving 

Meraz. She asserted, "I mean the issue is not that [Meraz is] a gang member. It's proving 

the motivations and the intentions of going back there [the Balderas house] ten days later."

The trial court carefully considered the arguments and offered its perspective of 

recent gang related cases tried before it:

"Well, you know, the last couple of gang trials I've done, your office 

has been doing this with more regularity. [¶] And I've been thinking 

about this. I didn't have any defense objection to it in these other cases. 

[¶] As we know, the U.S. Supreme Court does have a bee in its bonnet 

about confrontation and about hearsay evidence coming in and other 

people relying on that for purposes of lab reports, et cetera, and we all 

know that whole new line of case law. [¶] Whether you agree with it 

or not, confrontation is becoming a huge issue in the criminal defense 

 

briefs here that offers an argument why or how Aguon was prejudiced by the gang 

evidence. As such, we find no merit in any of Meraz's arguments as they apply to Aguon.
20

area. [¶] We have for decades, now, in the area of gang prosecution 

allowed a lot of hearsay in, and we tell the jury in the expert witness 

instruction that you don't have to accept the expert witness if you find 

that, you know, he didn't have sufficient evidence and all of this. [¶] I 

really do understand why the People are saying we are required to 

prove for purposes of gang allegation document motive, et cetera, and 

to just prove it up through hearsay—I read a report that he was there 

and had a gun and he was with this fellow gang member. I do see that 

in terms of convincing a jury and having a jury rely on that 

information, that if the witnesses are available and if the District 

Attorney can leave it—. [¶] You know we're not going to call six 

witnesses, every single officer that might have been present, but if 

there are one or two witnesses that can briefly take the stand and say, 'I 

was there. I saw this defendant in the presence of these fellow gang 

members and this is what they were doing,' I do think he's allowed to 

do that. [¶] I would not allow it if it was going to require an undue 

consumption of time, but if one or two—these would be relatively 

quick witnesses. I don't think there would be an extraordinary amount 

of cross-examination. These are not issues strongly in dispute, I don't 

think. [¶] I'm inclined to allow it for the reasons stated."

Meraz's attorney responded:

"I think—isn't the issue, though, what the detective relies on? [¶] So 

whether or not these officers come in and say what happened, it still 

doesn't take away from the fact that the detective wasn't there. He 

didn't see what happened. He's already relied on these reports in 

making his opinion. [¶] So the fact that the jury hears as to what 

happened on such and such a date is irrelevant to the jury's 

determination. It's only what the detective relies on in forming his 

opinion. [¶] I think it's a backdoor way of trying to get this kind of 

conduct in front of the jury to prejudice them against Mr. Meraz, 

saying: look, he's this gang member. He' s a bad guy. He hangs out 

with gang members all the time. He's got a gun—all the stuff that 

you're not allowed to do under—under our laws. [¶] So by bringing it 

in under the guise of it's something that the detective relies on in 

forming his opinion or showing that this is a gang crime is I think back 

dooring this evidence. [¶] Detective Sherman relies on the evidence 

whether he hears it live from the officer or whether he reads it in a 

report."
21

The trial court was not persuaded, emphasizing that the evidence was "more 

probative" through a "live witness" and the jury would be "more comfortable" "to rely on 

this information if they hear it firsthand." The court, however, offered to reconsider the 

issue if Meraz's counsel provided it with "some case law criticizing [its] position." Meraz 

does not cite to the record if or where his counsel provided any such authority.

C. The Gang Evidence

1. Percipient Witness Testimony

Officer Michael Dewitt testified that while on patrol on August 1, 2005, he arrested 

Meraz for spraying graffiti, including the sign, "LV70," on a sidewalk in the Lomita Village 

neighborhood.

Detective Dave Collins, a gang suppression officer with a graffiti strike force, 

investigated Meraz's graffiti arrest. He also testified as an expert regarding the importance 

of "tagging" in the gang culture, and described how officers in his job rely on interviews 

that are conducted by other officers in the field.

Jose Torres, a current member of the WOP Town criminal street gang, testified that 

he knew Meraz as "Grims" and Aguon as "Villen." He said they "might" have been Lomita 

Village gang members.

Sergeant William Pettus testified that he interviewed Jose Torres while Torres was in 

juvenile hall in 2009, and bolstered Torres's reluctant testimony identifying both Meraz and 

Aguon as Lomita Village gang members.
22

District Attorney investigator Joseph Winney conducted an investigation in 2006 

regarding a violent encounter involving Meraz and rival gang members. During the 

investigation, he interviewed Meraz and conducted a search of his home, where he collected 

gang related graffiti, and a notebook with a roster of gang members' monikers.

Retired officer Lawrence Eugene Wilson testified that he made contact with Meraz in 

January 2009 while Meraz was riding a bicycle around Lomita Park. Meraz admitted being 

in possession of a knife, and gave it to the officer. Wilson testified that the area was known 

as a gang hangout.

Officer Arthur Scott testified that in January 2007, he made contact with Meraz and 

two others, Enselmo Contreras and Daniel Ruiz, who were congregated in the street in 

Lomita Village. The boys wore baggy clothing and obstructed traffic in the street. Meraz

was on a bicycle. Scott and his partner had the boys sit on a curb. Scott asked each boy to 

lift his shirt, and when Meraz complied, Scott saw a gun in Meraz's waistband. At that time, 

Ruiz ran away, and tossed a gun away as he ran. Scott caught him, and all three boys were 

taken into custody. Scott said the area was a known Lomita Village gang hangout.

Officer Luis Colon, Scott's partner, described the same incident, and confirmed that 

the gun possessed by Meraz was a loaded .38 caliber handgun.

Lori Black, a San Diego Police Department patrol officer, testified that in September 

2005, she filled out a field interview form after making contact with Meraz and Jose Torres. 

Meraz told the officer he "kicked it" with "Lomita." In April 2006, Black stopped Aguon 

and a Jelani Bigby, who were in a vehicle speeding on a Skyline neighborhood street. 

Bigby, the driver, was known to associate with the Lomita Village gang.
23

Officer Mark Brenner made contact with Meraz in December 2008 and filled out a 

field interview form stating that Meraz claimed Lomita membership, and indicated his 

moniker was "Grims."

Officer Wade Irwin contacted Meraz in February 2011 in an area known as a hangout 

for Lomita Village gang members. Meraz said he was a Lomita Village gang member and 

went by "Grims." Meraz was wearing a black baseball hat with "TLS" on it, which Irwin 

knew to be a gang logo standing for Tiny Locos or Traviesos Locos. Irwin also contacted 

Aguon and Alberto Morin on April 18, 2010. Morin was known as a Lomita Village gang 

member.

Officer Kelvin Lujan conducted a field interview with Meraz and Alexander 

Rodriguez in May 2008. Meraz gave his moniker as "Grims." In July 2011, Lujan 

participated in a search of Aguon's home where several items of gang paraphernalia were 

recovered.

Officer Jack Pearson contacted Meraz in September 2005 and Meraz said he "kicked 

it" with the Lomita Village gang.

Officer Paul Choi contacted Aguon with Roberto Rodriguez and Anthony Echeves in 

January 2010 at Aguon's home. Choi said Rodriguez and Echeves were Lomita Village 

gang members and that Aguon went by "Villen."

Officer Lamar Rozas completed a field interview report on Aguon, Miguel 

Comenero, and Angel Nunez in October 2010. All three were Lomita Village gang 

members.
24

Officer Ramiro Rodriguez made a traffic stop in January 2008. Alexander Rodriguez 

was driving and Aguon was the passenger. Aguon was arrested for underage drinking.

Officer Kenneth Gray was working at a DUI checkpoint in December 2009. Aguon

was stopped and detained because he did not have a license. He had a revolver in his 

waistband and knife in his pocket. Some hard-knuckled gloves were in his glove box.

Meraz's counsel made a standing objection under Evidence Code section 352 as to 

the testimony from these percipient witnesses.

2. Telephone Calls

Meraz also objected to the playing of Meraz's jail calls as hearsay and for relevance. 

As counsel argued, "If it's just being offered for the basis of Detective Sherman's opinion, 

what opinion is it that we're talking about? Is it the opinion that Rafael Meraz, aka Grims, 

is a member of Lomita Village Gang? I believe we have a lot of evidence of that." The 

prosecutor replied, "Your honor, it is highly probative. It does shore up the expert's 

opinion . . . ." The prosecutor argued that Meraz's reference to individuals by their gang 

monikers showed that he knew and associated with other gang members. The court asked if 

that was really in dispute, considering that Meraz's gang membership "has been proved 20 

times yesterday." The prosecutor then argued, alternatively, that Meraz's statements on the 

phone were an admission to murder: "Every time when I'm going to fucking try to do good, 

bad shit happens. But when mother fucker out there doing his thing, ain't nothing 

happening. And I think that's referring to the fact that when he's out there committing 

crimes like the murder he committed on Halloween 2007, nothing happens." The court 

ultimately allowed the testimony under that theory, noting: "Okay. I see your theory there. 
25

I have a different view of that. [¶] I think there's an argument that could somehow be tied

to it. I'm inclined to allow that and both sides can argue it, cause it's surely ambiguous as to 

what he really means."

3. Expert Witness Testimony

Gang expert Sherman explained the workings of Lomita Village, and how the 

evidence connected Meraz and Aguon to each other. Sherman explained that there are 

about 30 documented Lomita Village gang members, but there were probably only about 22 

in 2007. He described tagging, or placement of graffiti, as being of extreme importance to a 

gang, tantamount to a business or political campaign advertising on billboards. He 

explained what "putting in work" means to gangs; that gang members "earn stripes" by 

putting in work. Sherman described the geographical area Lomita Village claims. He 

explained that gang members usually go by monikers rather than their actual names, and 

that Meraz was "Grims" and Aguon was "Villen."

Sherman provided background information about the Lomita Village gang, showing 

the jury its two hand signs, and detailing its members primarily engage in murders, assaults 

with deadly weapons, vandalism, and methamphetamine trafficking. He also explained the 

importance of "respect" in gang culture. According to Sherman, respect is the "backbone"

of gang life. The respect, or lack of respect, does not necessarily need to be authentic, as 

long as it is perceived as respect or disrespect. Fear is a close corollary to respect. 

Disrespect to any member would warrant retaliation by the gang. 
26

Sherman reviewed numerous photographs from field reports, along with photos, 

writings, and other items that had been found in the homes of the defendants and Meraz's 

jail cell. He described the significance of symbols, numbers, hats, hand signals, rosters, and 

tattoos. Meraz and Aguon appeared together in several of the photographs, along with 

many other Lomita Village gang members.

Referring to one officer's contact with Meraz and Daniel Ruiz, Sherman said Aguon 

was married to Ruiz's sister.

Sherman explained the significance of recorded jail calls Appellants had made. He 

deciphered what he described as the "code" used by gang members who know their calls are 

being recorded. He explained that he used the calls as part of the basis for his opinions 

about Appellants.

Sherman explained that guns are very important in gang life. They are a source of 

power. According to Sherman, there are serious consequences for a gang member who 

loses a gun belonging to the gang. In gang culture, it would be a very serious matter to be 

beaten up and have your gun taken, particularly if the people who took your gun then called 

the police. That gang member would feel further disrespected if those same people, didn't 

care about that gang member's neighborhood. Such a comment would be extreme 

disrespect to the gang member. Reprisal would be absolutely necessary. It would have to 

be definitive, and it would likely involve the assistance of the gun loser's closest friends. It 

would have to be of much greater force than the original disrespect.
27

Sherman explained that a shooting in retaliation for a gang member's having been 

beaten up and having his gun taken would benefit the gang member's gang. The beating and 

gun deprivation would constitute grave disrespect, and word of it would get out on the 

streets quickly. It would require quick and disproportionate retaliation to restore the 

reputations of both the gang member and the gang itself.

D. Legal Standard and the Law

Evidence Code section 352 provides that a trial court may exclude evidence "if its 

probative value is substantially outweighed by the probability that its admission will . . . 

create substantial danger of undue prejudice, of confusing the issues, or of misleading the 

jury." Evidence of a person's gang affiliation is admissible if it is relevant to prove a

disputed issue and its probative value is not outweighed by its prejudicial effect. (People v. 

Champion (1995) 9 Cal.4th 879, 922-923; People v. Ruiz (1998) 62 Cal.App.4th 234, 239-

240; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) However, evidence of gang 

affiliation should be excluded if it is only relevant to prove a defendant's criminal 

disposition. (Evid. Code, § 1101, subd. (a); Champion, supra, at p. 913; Ruiz, supra, at 

p. 240.) Even if gang affiliation evidence is relevant, trial courts should closely scrutinize it 

because it "may have a highly inflammatory impact on the jury." (People v. Williams

(1997) 16 Cal.4th 153, 193.) If evidence of gang affiliation is only tangentially relevant, it 

ordinarily should be excluded because of its highly inflammatory impact. (People v. Cox

(1991) 53 Cal.3d 618, 660; People v. Cardenas (1982) 31 Cal.3d 897, 904-905 (Cardenas).)
28

On appeal, we apply the abuse of discretion standard in reviewing a trial court's 

decision to overrule an Evidence Code section 352 objection and admit evidence. "The 

admission of gang evidence over an Evidence Code section 352 objection will not be 

disturbed on appeal unless the trial court's decision exceeds the bounds of reason." (People 

v. Olguin, supra, 31 Cal.App.4th at p. 1369.)

E. Analysis

Meraz acknowledges that some gang evidence was admissible, but nonetheless 

argues that the "admission of extensive, cumulative, and prejudicial gang evidence was 

error and an abuse of discretion under state law[,] which violated [Meraz's] constitutional 

right to due process of law, requiring reversal." In this sense, Meraz appears to maintain 

that the prosecution should have only offered just enough but not too much gang evidence. 

He relies, among others, on Cardenas, supra, 31 Cal.3d 897, People v. Albarran (2007) 149 

Cal.App.4th 214 (Albarran), People v. Avitia (2005) 127 Cal.App.4th 185 (Avitia), and 

People v. Bojorquez (2002) 104 Cal.App.4th 335 (Bojorquez). All these cases are factually 

distinguishable.

In Cardenas, supra, 31 Cal.3d 897, the admission of gang evidence was offered to 

show that the defense witnesses were biased. But evidence had already been admitted that 

the defendant and the witnesses were neighborhood friends, and thus the fact that they were 

all members of the same gang was cumulative and more prejudicial than probative. (Id. at 

p. 904.) In Avitia, supra, 127 Cal.App.4th 185, the record showed "no evidence the 

charged crimes were related to any gang activity, the trial court admitted, over [the 

defendant's] objection, evidence that gang graffiti was found in [his] bedroom," and the 
29

reviewing court "conclude[d] that admission of this evidence, which was unrelated to any 

issue at trial, require[d] reversal." (Id. at p. 187.) In Bojorquez, supra, 104 Cal.App.4th 

335, the reviewing court likewise concluded that "the inquiry into gang matters should have 

ended with [the gang expert's] rebuttal of [the defendant's] and [a defense witness's] denials 

of gang membership contemporaneous with the offenses, as relevant to bias. Only in this 

connection was the subject of gangs implicated in this case." (Bojorquez, supra, at pp. 344-

345.)

Here, in contrast to these three cases, the record broadly implicates the subject of 

gangs. Indeed, the crimes committed are nonsensical outside the gang context. The 

prosecution's theory at trial was that Meraz, a gang member of Lomita Village, was 

disrespected when he was beat up and disarmed in front of the Balderas house. Thus, it was 

important to Meraz and his gang, that Meraz retaliate. Meraz and two fellow gang 

members, one of which was Aguon, returned to the scene of Meraz's disrespect and shot 

Vidal, killing him. In no other context, but under the logic of a criminal street gang, are 

these actions explainable.

The evidence offered by the percipient witnesses established Meraz was a gang 

member and often associated with other gang members. The prejudice Evidence Code 

section 352 seeks to avoid is not the prejudice or damage to a defense that naturally flows 

from highly probative evidence. (People v. Karis (1988) 46 Cal.3d 612, 638.) "Rather, the 

statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis 

of extraneous factors." (People v. Farmer (1989) 47 Cal.3d 888, 912.) Because the 
30

probative testimony of the percipient witnesses did not prejudice Meraz in that sense, we 

reject Meraz's argument that the evidence was prejudicial under Evidence Code section 352.

Similarly, we do not find that the testimony of the percipient witnesses was so 

cumulative that the trial court should have excluded it under Evidence Code section 352. 

Meraz does not point to any stipulation in the record that he was a gang member. Further, 

the prosecution argued that it needed to provide live testimony of Meraz's gang involvement 

as opposed to hearsay testimony through an expert witness to avoid potential confrontation 

issues under the Sixth Amendment of the United States Constitution.4 The trial court 

agreed, noting that the United States Supreme Court had a "bee in its bonnet" recently about 

confrontation issues and believed that the jury would benefit from hearing the live 

witnesses. The trial court further stated that it did not believe the admission of the evidence 

would involve mini-trials or consume too much trial time. In light of the trial court's stated 

reasons against the backdrop of our review of the record, we cannot say that the trial court's 

decision to allow the percipient witnesses to testify about Appellants' gang involvement 

exceeded "the bounds of reason." (See People v. Olguin, supra, 31 Cal.App.4th at p. 1369.)

 

4 The People point out that this issue is currently before the California Supreme Court, 

for reasons discussed in People v. Hill (2011) 191 Cal.App.4th 1104, 1127-1137. (People v. 

Sanchez (S216681) review granted May 14, 2014.) As explained in People v. Hill, though 

expert opinion basis evidence is theoretically not offered for its truth, and is therefore not 

hearsay, the argument can be made that if it is not offered for its truth, it really cannot be 

used to evaluate the expert's opinion, so it must actually be offered for its truth and thus be 

hearsay after all, possibly violating the Confrontation Clause. (Hill, supra, at pp. 1127-

1137.)
31

We next address Meraz's challenge to the admission of Meraz's telephone calls from 

jail. At the outset, we note that Meraz refers to telephone calls, but only discusses a single 

telephone call. Moreover, as to this one call, the trial court did not admit the call as 

evidence of Meraz's involvement in the Lomita Village street gang, but instead, admitted it 

based on the prosecution's argument that the telephone call was an admission by Meraz that 

he committed murder. The trial court noted that the telephone call seemed ambiguous, but 

admitted it with the comment that the parties could argue about the call's meaning.

Here, Meraz does not offer any authority or argument explaining how the telephone 

call was prejudicial under Evidence Code section 352. Instead, he appears to argue the call 

was not relevant. " 'Only relevant evidence is admissible (Evid. Code, § 350; [citations] ), 

and, except as otherwise provided by statute, all relevant evidence is admissible[.] (Evid. 

Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)' (People v. Crittenden [ (1994) ] 9 

Cal.4th [83,] 132.) 'Relevant evidence is defined in Evidence Code section 210 as evidence 

"having any tendency in reason to prove or disprove any disputed fact that is of 

consequence to the determination of the action." The test of relevance is whether the 

evidence tends "logically, naturally, and by reasonable inference" to establish material facts 

such as identity, intent, or motive. [Citations.]' [Citation.]" (People v. Bivert (2011) 52 

Cal.4th 96, 116-117.) On this record, we cannot say the challenged telephone call was not 

relevant. We agree with the prosecution that it could be interpreted as an admission of guilt 

and the prosecution was free to argue as much during trial. Of course, Meraz had the 

opportunity to argue that the telephone call was not an admission, but mere gibberish. We 

see no error in the admission of this evidence.
32

Finally, we address Meraz's challenge to the prosecution's gang expert, Sherman. 

Initially, we observe courts "have long permitted a qualified expert to testify about criminal 

street gangs when the testimony is relevant to the case." (People v. Gonzalez (2006) 38 

Cal.4th 932, 944.) Meraz does not argue that Sherman should have been excluded 

altogether. He nonetheless argues that most of Sherman's testimony should have been 

excluded because it "showed nothing but [Meraz's] propensity" for violence. We disagree.

Sherman was a key witness in Meraz's trial because his testimony explained the 

murder in the gang context. His testimony was necessary to describe how a gang's 

reputation would be enhanced by this violence and why a gang member would choose to 

retaliate with violence after Meraz altercation in front of the Balderas house. These are all 

matters " 'sufficiently beyond common experience that the opinion of an expert would assist 

the trier of fact . . . .' " (Evid. Code, § 801, subd. (a); see also People v. Ferraez (2003) 112 

Cal.App.4th 925, 930-931.)

Moreover, when provided a hypothetical that mirrored the evidence in this case, 

Sherman testified that a gang member, who had his gun taken and was beaten so badly he 

had to go to the hospital, and the gun was given to law enforcement, would have to respond 

with a retaliatory act using greater force and power to inflict a much greater injury. 

Sherman further opined the shooting, if committed by multiple Lomitas Village gang 

members, was committed in association with that gang and benefitted the gang. "It has also 

long been settled that . . . expert testimony regarding whether a crime is gang related 

specifically, may be given in response to hypothetical questions." (People v. Vang (2011) 

52 Cal.4th 1038, 1049-1050, fn. 5].) Further, "[e]xpert opinion that particular criminal 
33

conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to 

raise the inference that the conduct was 'committed for the benefit . . . a[] criminal street 

gang' within the meaning of section 186.22(b)(1)." (People v. Albillar (2010) 51 Cal.4th 47, 

63.) This is precisely what Sherman's testimony established. Accordingly, this case shares 

none of the court's concerns in Albarran, supra, 149 Cal.App.4th 214, a case relied on by 

Meraz, where the gang expert conceded he did not know why the subject shooting occurred 

and could not connect it to a gang. (Id. at p. 227.)

In summary, we are satisfied the trial court did not abuse its discretion in admitting 

the challenged gang evidence. This was a gang case. Gang evidence, including expert 

witness testimony, was necessary. We find no error.

IV

MERAZ'S SENTENCE

Meraz was 15 years old when he committed the crime for which he was convicted. 

The United States Supreme Court and the California Supreme Court have provided clear 

rules for the sentencing of juveniles. A juvenile cannot be sentenced to capital punishment 

for any crime. (Roper v. Simmons (2005) 543 U.S. 551, 578-579.) A sentencing court may 

not sentence a juvenile to prison for life without the possibility of parole (LWOP) for 

nonhomicide offenses. (Graham v. Florida (2010) 560 U.S. 48, 75 (Graham).) A sentence 

for a juvenile who committed a nonhomicide offense that consists of a term of years with a 

parole eligibility date that falls outside the juvenile offender's natural life expectancy is 

prohibited. (People v. Caballero (2012) 55 Cal.4th 262, 268.) Mandatory life without 

parole sentences for juveniles, even those who commit homicide, are not permitted. (Miller 
34

v. Alabama (2012) _____U.S. _____, 132 S. Ct. 2455, 2464.) An LWOP sentence for 

juveniles who committed a homicide offense is allowable only if the court considers the "

'mitigating qualities of youth' " and limits "this harshest possible penalty" to those "rare 

juvenile offender[s] whose crime[s] reflect irreparable corruption." (Id. at pp. 2467, 2469.)

Meraz contends his sentence violated the Eight Amendment and Fourteenth 

Amendments of the United States Constitution as well as Article I, section 17 of the 

California Constitution. He thus argues that this case must be remanded so he can be 

resentenced. The linchpin of Meraz's argument is that his sentence of 50 years to life is the 

equivalent to LWOP. We disagree.

Meraz's sentence was statutorily authorized. Section 190, subdivision (a) provides 

that the sentence for first degree murder "shall be . . . death, imprisonment in the state prison 

for life without the possibility of parole, or imprisonment in the state prison for a term of 25 

years to life." The Legislature has also fixed the punishment for a section 12022.53, 

subdivisions (d) and (e)(1) enhancement as 25 years to life. Meraz was sentenced to 25 

years to life for the murder and to a consecutive term of 25 years to life for a weapons 

allegation. Both terms were authorized under the relevant statutes. (§§ 190, subd. (a);

12022.53, subds. (d), (e)(1).)

Under California statutes, the sentences of death or LWOP apply to persons 

convicted of first degree murder with one or more special circumstances. (§ 190.2) In 

addition, section 190.5, subdivision (b) gives the court discretion to sentence a defendant 

who committed such a crime at age 16 or 17 to 25 years to life instead of LWOP. Courts 

have held that a defendant who was 14 or 15 years old when he committed a murder may 
35

not be sentenced to LWOP. (People v. Demirdjian (2006) 144 Cal.App.4th 10, 17). We 

therefore agree that Meraz could not have been sentenced to LWOP. He was not.

However, Meraz argues that his sentence was the functional equivalent of LWOP. In 

doing so, he relies primarily on People v. Mendez (2010) 188 Cal.App.4th 47. In that case, 

the court reversed a sentence of 84 years to life for carjacking, assault with a firearm, and 

seven counts of robbery with gang and firearm enhancements for a defendant who was 16 

when he committed the crimes. (Id. at pp. 62-68.) The court noted that because the 

defendant would not be eligible for parole until he was well past his life expectancy, his 

sentence was " 'materially indistinguishable' " from LWOP. (Id. at p. 63.)

The instant matter is distinguishable from People v. Mendez, supra, 188 Cal.App.4th 

47. In that case, the defendant committed a nonhomicide crime. In contrast, Meraz was 

convicted of murder. In addition, the sentence in People v. Mendez clearly did not offer the 

defendant a meaningful opportunity for parole during his lifetime. We do not have the same 

concerns here.

Nevertheless, Meraz still claims his 50 years to life sentences constitutes LWOP. 

He asserts that the current life expectancy for a Hispanic male in the United States is 78-79

years, as determined by the Centers for Disease Control and Prevention. (United States Life 

Tables, 2009 (1/ 6/ 2014) National Vital Statistics Reports, Vol. 62, No. 7.) Although he 

claims that he would be eligible for parole when he is about 70 years old (within his life 

expectancy), Meraz cites the following:

"The combination of physical and mental declines makes aging 

inmates, on the average, 10 to 11.5 years older physiologically than 

their nonincarcerated age peers (Doughty, 1999; Southern Legislative 
36

Conference, 1998). This is why most recent studies consider either age 

50 or 55 as the onset of old age for inmates [] For our purposes, then, 

an elderly male inmate is defined as age 50+. (Rikard, R. V., & 

Rosenberg, E. (2007). Aging Inmates: A Convergence of Trends in the 

American Criminal Justice System. Journal of Correctional Health 

Care 13(3):150-162. (July 2007) online version available as of 

11/10/13 found at: http://jcx.sagepub.com/content/ 13/3/150.)"

Based on this journal article, Meraz argues that "[i]t is reasonable . . . to assume [his] 

physical age will be closer to 80 to 85 years old at the time he first becomes eligible for 

parole." As such, Meraz insists he will effectively be beyond his current life expectancy of 

78-79; therefore, making his current sentence an unconstitutional LWOP.

We note that Meraz's argument that his sentence is a de facto LWOP is contingent on 

the assumption that his "physical age" will be 80-85 years, which is based on the Rikard and 

Rosenberg article. We decline to accept an assumption based on an article that Meraz does 

not assert was presented to the sentencing court to argue that the proposed 50 years to life 

sentence was unconstitutional. As Meraz admits, his life expectancy is 78-79 years. 

He committed his crime at age 15. He was not tried or sentenced until he was 20. He 

received credit for 842 days of time served at the time of trial. Thus, Meraz, at the time of 

sentencing, had already served over two years of his sentence. As such, even if we assume 

the earliest he would serve a minimum of 50 years before he was eligible for parole, he 

would be 68 years old. We therefore cannot necessarily conclude that a sentence of 50 

years to life imposed on a juvenile offender who was 15 when he committed homicide 

constitutes a de factor LWOP. It is entirely possible that Meraz will become eligible for 

parole or release during his lifetime.
37

Having determined that Meraz's sentence is not an LWOP, we do not address the 

impact of Senate Bill No. 260 on Meraz's sentence.

V

ABSTRACTS OF JUDGMENT

Appellants maintain, and the People concede, minor errors plague their respective 

abstract of judgments. For example, Aguon argues that his abstract of judgment's reference 

to a stayed "PC 120222.53(D)&(3)(1)" enhancement should actually read 

"12022.53(D)&(E)(1)," with the "(E)(1)" replacing the "(3)(1)." Also, the abstract inserts an 

extra "2" in the listed code section: "120222.53" should be "12022.53."

Aguon also points out a problem with item 6 in the abstract of judgment. Item 6 is 

one of three places (along with 4 and 5) to list indeterminate terms, and has four checkboxed subparts, labeled "a," "b," "c," and "d." Each subpart has either one or two blanks. 

Directly beneath item 6 is the legend, "PLUS enhancement time shown above," an apparent 

reference to tables 2 and 3, which are for enhancements. In Aguon's abstract, 6(b) is 

checked, and reads, "25 years to Life on counts 1." Subpart "d" is checked and reads 

"25LIFE years to Life on counts 1 ALE." However, subpart "d" is not correct. It appears 

that the clerk used "d" to record Aguon's 25-year-to-life gun use enhancement, with "ALE"

denoting "allegation." But that was unnecessary. Item 6 is only for listing time on 

substantive offenses, not enhancements; hence its notation, "PLUS enhancement time 

shown above." The clerk had in fact already listed the 25-year-to-life enhancement in table 

2 on the form. There was thus no need to repeat the information in item 6.
38

There also exists a similar problem in Meraz's abstract of judgment. There, item 6, 

subpart "d" is checked, and reads, "25 years to Life on counts 1 ALL," again apparently 

referring to the gun use enhancement, with "ALL" being an abbreviation for "allegation."

The trial court should correct these minor problems with the abstract of judgment so 

they correctly reflect the subject convictions and sentences.

DISPOSITION

The judgment is affirmed. The matter is remanded to the superior court with 

directions to correct the clerical errors in the subject abstract of judgments.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.