1 

Filed 9/24/13 P. v. Owens CA3 

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

KENNETH OLIVER OWENS, JR., 

 Defendant and Appellant. 

C069838 

(Super. Ct. No. 10F02610) 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

MAURICE EDWARD REED, JR., 

 Defendant and Appellant. 

C069853 

(Super. Ct. No. 10F02610) 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

DEJON WAYNE MURRAY, 

 Defendant and Appellant. 

C069856 

(Super. Ct. No. 10F02610) 
2 

 Three separate juries respectively convicted the three defendants here—Kenneth 

Oliver Owens, Jr., Maurice Edward Reed, Jr., and Dejon Wayne Murray—of first degree 

felony murder with special circumstances (committed in the course of a robbery and a 

burglary; defendants were also convicted of two counts of robbery in concert and one 

count of burglary). (Pen. Code, §§ 187, subd. (a), 189, 190.2, subd. (a)(17), 211, 213, 

subd. (a)(1)(A), 459, 462, subd. (a).)1 The juries also found that Murray and Reed 

personally used firearms in these offenses while Owens was vicariously armed. 

(§§ 12022.53, subd. (b), 12022, subd. (a)(1).) 

 Sentenced to state prison for life without parole (LWOP) plus lengthy determinate 

terms, defendants separately appeal.2 

 Murray, who was two months shy of 18 years old when he committed the 

offenses, disputes the evidentiary sufficiency of the special circumstance findings; claims 

the trial court failed to instruct the jury properly (most significantly, on lesser offenses, 

on distinguishing special circumstance first degree felony murder from simple first 

degree felony murder, and on various mental impairments); and raises several issues 

regarding sentencing juveniles to LWOP. 

 Reed, who maintained he was not the shooter in this home invasion robbery gone 

awry, claims the evidence did not show he acted with reckless indifference to life, as 

required to sustain the special circumstance findings; contends his counsel was 

ineffective in simply arguing he was not the killer in this felony-murder case; and asserts 

certain jail booking fees were not supported. 

 

1 Undesignated statutory references are to the Penal Code. 

2 We consolidated these three separate appeals for purposes of oral argument and 

disposition. 
3 

 Owens claims the trial court erred in responding to a jury question about the 

evidentiary status of telephone records referenced by a police officer in interviewing 

Owens, and erred in receiving certain hearsay evidence implicating him. Owens joins in 

the arguments of his codefendants to the extent they benefit him. 

 We shall reverse the judgment of sentence as to defendant Murray, and remand for 

the trial court to exercise its sentencing discretion in light of the United States Supreme 

Court’s intervening decision in Miller v. Alabama (2012) 557 U.S. ___ [183 L.Ed.2d 

407] (Miller). Otherwise, we shall affirm the judgments. 

FACTUAL BACKGROUND 

Victims of Robbery and Burglary 

 Roommates Derek Martin and Eric Warren were having dinner at their apartment 

on Friday, March 26, 2010, when there was a knock at their door. Warren thought it was 

their friend, Salvador Heredia-Arriaga (the eventual murder victim here), who was going 

to take Warren out to a bar. Instead, two armed men intruded. 

 The first man was Reed, who, about one week before, had come to the apartment 

to buy marijuana from Warren; Warren had a marijuana recommendation and 

occasionally sold marijuana. Reed carried a revolver. The second man was Murray, 

carrying a semiautomatic handgun.3 About two days before, Murray had accompanied 

Owens to the apartment; Owens, who had previously lived at the same apartment 

complex, came to buy marijuana, which he had done on several previous occasions while 

also socializing with Warren. 

 

3 Because there is little dispute on appeal about the identity of the two intruders, they are 

referred to herein as Reed and Murray. 
4 

 Reed and Murray barked orders and threats to kill at Martin and Warren, gathered 

up marijuana, cash, wallets, and video games and equipment, herded Martin and Warren 

to the bathroom, and then demanded four minutes for an escape. 

 While in the bathroom, Warren heard the front door open. Realizing it was 

Heredia-Arriaga, Warren yelled, “Sal, give it up. We are being robbed.” Warren and 

Martin heard scuffling, and then one gunshot. Emerging from the bathroom, Warren and 

Martin discovered a fallen Heredia-Arriaga, who died of a gunshot wound to the chest. 

Witness Desirea Cunningham 

 Desirea Cunningham, defendant Owens’s girlfriend and the mother of their child, 

told police that she heard Owens call his cousin, Reed, on the night of the homicide. 

Owens told Reed that he had a “lick” (a robbery), mentioning that a person, who 

apparently lived at Owens’s former apartment complex, had money, a plasma TV, and an 

Xbox. Owens told Reed to meet him “somewhere” near the apartments. 

 At trial, Cunningham acknowledged these statements, but said they were lies 

prompted by Cunningham’s anger over “another woman.” 

Accomplice/Accessory Tamika Reed 

 Tamika Reed (Tamika) is defendant Reed’s sister, defendant Owens’s cousin, and 

the girlfriend of a good friend of defendant Murray’s. She was charged with special 

circumstance murder but received a plea bargain of three years eight months, for 

accessory and grand theft, in exchange for testifying against these three. 

 On the night of the shooting, Tamika was at a party for her boyfriend, which 

defendants Reed and Murray also attended, when Reed asked Tamika to drive him to get 

some marijuana. As the two Reeds were heading out, defendant Reed had Tamika pick 

up Murray, who had just obtained from another man something wrapped in a white shirt. 

 Tamika and her crew subsequently engaged with defendant Owens and followed 

his car to an apartment complex. There, they all parked. Owens told defendants Reed 
5 

and Murray to knock on a certain door and provide some sort of word or code. Owens 

stayed behind, talking to Tamika, and then walked off. 

 A short time later, Owens returned, walking rapidly to his car and driving off 

hurriedly. Defendant Reed followed hastily in short order, jumping in Tamika’s car and 

saying, “Go, go, go.” On the way out, they stopped for Murray, who flopped in the 

backseat armed with a gun in one hand and a PlayStation in the other. 

 Tamika’s trio drove to her apartment, where Owens joined them about five or 10 

minutes later. At Tamika’s apartment, Reed gave a “cowboy” (revolver) gun to Murray, 

which was unlike the gun Tamika had seen Murray with during their getaway. The three 

defendants argued and lamented why Murray had shot the man, with Murray responding, 

“He was wrestling with you [(i.e., Reed)]. What was I supposed to do . . . ?” Then, they 

divided the loot. 

Physical Evidence 

 Found at the scene of the shooting were an ejected (fired) .40-caliber 

semiautomatic bullet casing, a fired bullet embedded in a wall, and an unfired .40-caliber 

bullet. 

 A criminalist opined that a fingerprint taken from a videogame case at the scene 

matched Murray’s. 

 When Murray was arrested about four weeks after the shooting, he was carrying a 

loaded .44-caliber revolver (which would not eject bullet casings like the .40-caliber 

semiautomatic casing found at the scene). Incriminating text messages were found on 

Murray’s cell phone. 

Defendant Reed’s Admissions 

 In a jail interview with a local television reporter, Reed stated that he went to the 

Martin-Warren apartment to rob the men, not to kill them; he also wrote a letter of 

apology to the Heredia-Arriaga family. 
6 

Defense Evidence 

Defendant Murray presented two witnesses. 

 A clinical psychologist tested Murray’s IQ at 69 (mildly retarded), and opined that 

Murray’s overall intellectual functioning was closer to 75 (borderline range; functioning 

at a very basic level). 

 Channa Gates (Murray’s aunt), testified Tamika told her that defendants Reed and 

Owens got Murray “all liquored up and all drugged up” and took him to the robbery; that 

Murray was not the shooter; and that Owens had set up the robbery. 

DISCUSSION 

I. Defendant Murray’s Appeal 

A. Substantial Evidence Supports the Special Circumstance Finding 

 Murray argues that, absent some eyewitness, rather than just earwitness, 

description of the shooting, the evidence is insufficient to show that the actual shooting 

was committed to carry out or advance the independent felony of robbery or burglary, as 

required to sustain special circumstance first degree felony murder based on robbery or 

burglary. We disagree. 

 To determine the sufficiency of the evidence to support a criminal conviction, 

including a special circumstance finding, an appellate court reviews the entire record in 

the light most favorable to the prosecution to determine whether it contains evidence that 

is reasonable, credible, and of solid value, from which a rational trier of fact could find 

the defendant guilty beyond a reasonable doubt. (People v. Kipp (2001) 26 Cal.4th 1100, 

1128; People v. Mayfield (1997) 14 Cal.4th 668, 790-791.) 

 The robbery-murder (analogously, the burglary-murder) special circumstance 

applies to a murder committed in the course of a robbery, not to a robbery committed in 

the course of a murder. (§ 190.2, subd. (a)(17); People v. Marshall (1997) 15 Cal.4th 1, 

41.) 
7 

 This argument from Murray, the first one he makes, is apparently an attempt to 

swing for the fences in this appeal; however, the argument is not even a Texas League 

single. 

 Essentially all the evidence recounted above showed that robbery was at the center 

of this criminal undertaking. The murder victim, unfortunately, was in the wrong place at 

the wrong time; he unexpectedly intruded upon the scene while the robbery victims were 

sequestered in the bathroom and defendants were effectuating their escape from the 

robbery. The jury had more than ample evidence to find that defendants murdered 

Heredia-Arriaga to carry out or advance their robbery of Martin and Warren; if anything, 

the evidence was insufficient to find that defendants had only murder on their mind, and 

the robbery was an incidental afterthought. 

B. The Trial Court Did Not Err in Declining to Instruct on any Lesser Included 

Offenses to First Degree Felony Murder, Robbery and Burglary 

 During trial, Murray requested instruction on lesser included offenses of second 

degree murder and involuntary manslaughter. After confirming that the People had 

dropped the premeditated (malice-based) murder charge—the information charged 

defendants with malice murder (§ 187)—and were proceeding solely on a theory of first 

degree felony murder based on robbery and burglary (§ 189), the trial court determined 

that “the lessers to the murder one [were] not appropriate.” 

 The trial court subsequently instructed the jury on first degree felony murder, first 

and second degree robbery, and first and second degree burglary (the first degree robbery 

and burglary required an inhabited dwelling as the scene of the crime). The jury was also 

instructed to consider voluntary intoxication, involuntary intoxication, and any mental 

impairment as to Murray in determining whether he acted with the required intent or 

mental state for these crimes. 
8 

 “ ‘When the evidence points [u]ndisputedly to a homicide committed in the course 

of a felony listed in section 189 of the Penal Code [(which includes the felonies, robbery 

and burglary)], the court is justified in [instructing] the jury that the defendant is either 

innocent or guilty of first degree [felony] murder,’ ” that is, is justified in instructing only 

on first degree felony murder. (People v. Anderson (2006) 141 Cal.App.4th 430, 448 

(Anderson), quoting and adding italics to People v. Turner (1984) 37 Cal.3d 302, 327, 

which was overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 

1115.) 

 Again, as shown in the Factual Background of this opinion and reiterated in part 

I.A. of the Discussion, ante, the evidence here pointed undisputedly to a homicide 

committed in the course of a robbery or a burglary. Consequently, the trial court was 

justified in declining to instruct on second degree murder and involuntary manslaughter, 

after confirming that the People were proceeding solely on a theory of first degree felony 

murder.4 

 Murray disagrees for several reasons. 

 First, Murray claims he “deserved some instructional and verdict form support for 

all [his] arguments [that he] was [merely] a drunken friend along for the ride who hung 

around outside the apartment.” Murray may have argued this theory, but sufficient 

evidence to instruct upon it was not presented. (See People v. Breverman (1998) 

19 Cal.4th 142, 162 [to instruct upon a theory, evidence must be substantial enough to 

 

4 The People note that the California Supreme Court has expressly left open the question 

whether second degree murder is a lesser included offense (requiring instruction) when 

the prosecution proceeds solely on a theory of first degree felony murder (People v. 

Taylor (2010) 48 Cal.4th 574, 623); but the People suggest the high court, more recently, 

has cast doubt on such an inclusion by pointing out that malice is an element of second 

degree murder but not of first degree felony murder (People v. Castaneda (2011) 

51 Cal.4th 1292, 1328-1329). 
9 

merit a jury’s consideration].) Aside from the evidence recounted in the Factual 

Background of this opinion, Murray’s statement to the police was presented to his 

separate jury. That statement was one of denial; Murray recalled being drunk at the party 

Tamika mentioned, but he did not go along on a ride to any other apartments. Defense 

testimony from Murray’s aunt setting forth statements Tamika made to her, did not 

support this theory, either; according to Murray’s aunt, Tamika said defendants Reed and 

Owens got Murray all liquored and drugged up and took him to a robbery, and Murray 

was not the shooter. 

 Second, Murray contends that the giving of so many related mitigation 

instructions—voluntary intoxication, involuntary intoxication, mental impairment, afterformed intent to steal, and even aiding and abetting—but not lesser offense instructions, 

which were also supported on the same grounds, is incongruous. These mitigation 

instructions largely concerned the required mental states for the burglary, the robbery, 

and the first degree felony murder (including the underlying felonies of burglary or 

robbery, and independent intent to commit the burglary or the robbery), and were 

properly given. These mitigation instructions, if found applicable, could wipe out the 

required mental states for these offenses, but could not create lesser offenses in their 

stead here. 

 Third, Murray asserts that the incredulous attempts by Tamika (and her brother, 

defendant Reed) to shift blame to Murray bespeaks the need for full instruction on a 

range of lesser offenses. Again, though, substantial evidence was not presented that a 

drunken Murray was simply taken along for the ride, and hung around outside the crime 

scene. Furthermore, the jury did not need to rely on the Reeds’ attempts to pin Murray as 

the actual killer to convict Murray of first degree felony-murder special circumstance on 

the instructions properly given here regarding nonkiller participants. 
10 

 Fourth, Murray relies on Anderson as entitling him to a second degree murder 

instruction. Unlike here, however, the evidence in Anderson did not “[u]ndisputedly” 

indicate a first degree felony murder or innocence. In Anderson, substantial evidence 

supported a finding that the defendant there, a nonkiller participant, formed an intent to 

take the victim’s money only after the fatal act by the codefendant—i.e., in Anderson, 

there was substantial evidence of a robbery committed in the course of a murder, rather 

than a murder committed in the course of a robbery. (Anderson, supra, 141 Cal.App.4th 

at p. 448.) 

 Fifth, and finally, and again relying on Anderson, Murray argues in a related, 

catchall fashion that “the complete omission of any homicide or relevant 

robbery/burglary lessers whatsoever posed a real, prejudicial, and unfair all-or-nothing 

pressure not to let [Murray] off scot-free on an unlawful killing where he was present 

despite clouded facts that demanded full instruction.” Murray points to the Anderson 

court’s reversal; there, the trial presented an unfair choice of felony murder or nothing 

because of substantial evidence of an after-formed intent to steal, which would negate 

felony murder. Again, for the reasons previously given, we reject this argument. 

Anderson’s facts are not the facts before us. 

 We conclude the trial court did not err by declining to instruct on lesser included 

offenses of murder, robbery, and burglary. 

C. The Trial Court Properly Instructed on Special Circumstance Felony-murder 

 Murray argues that the CALCRIM instruction given here on special circumstance 

felony-murder (CALCRIM No. 730), in contrast to a clearer CALJIC instruction on the 

subject (CALJIC No. 8.81.17), inadequately conveyed the special circumstance 

requirement that the felony could not be merely incidental to the commission of the 

murder. We disagree. 
11 

 As set forth in Murray’s briefing, CALJIC No. 8.81.17 states, as pertinent: “The 

murder was committed in order to carry out or advance the commission of the [felony] or 

to facilitate the escape therefrom or to avoid detection. In other words, the special 

circumstance . . . is not established if the [felony] was merely incidental to the 

commission of the murder.” 

 As given here, CALCRIM No. 730 stated, as relevant: “[I]n order for a special 

circumstance to be true, the People must prove that a defendant intended to commit 

robbery or burglary independent of the killing. If you find that a defendant only intended 

to commit murder, and the commission of robbery or burglary was merely part of or 

incidental to the commission of that murder, then the special circumstance has not been 

proved . . . .” 

 Murray argues that the first sentence of CALCRIM No. 730 is inadequate because 

jurors need to know that even if there is an independent intent to commit the robbery or 

the burglary (an intent necessary for any felony murder), in the special circumstance 

felony-murder context “the overall felony [must not merely be] incidental to [the] 

killing.” Murray claims the second sentence of CALCRIM No. 730 does not convey this 

special circumstance requirement of a nonincidental felony either, because its conjunctive 

phrasing (“and”) “effectively eliminates the nonincidental rule as a separate 

requirement.” 

 A defendant who claims an instruction is subject to erroneous interpretation by the 

jury must demonstrate a reasonable likelihood that the jury understood the instruction in 

the way the defendant claims. (People v. Cross (2008) 45 Cal.4th 58, 67-68.) We do not 

find a reasonable likelihood here. 

 Special circumstance felony-murder requires that the felony not be merely 

incidental to the commission of the murder; that is, the murder must be committed in the 

course of committing the felony, rather than the felony being committed in the course of 
12 

committing the murder. (See §190.2, subd. (a)(17); People v. Marshall, supra,

15 Cal.4th at p. 41.) Special circumstance felony-murder reflects a legislative belief that 

it is appropriate to make those who kill to advance an independent felonious purpose 

eligible for special circumstances; this goal is not achieved when the felony is merely 

incidental to the murder. (§190.2, subd. (a)(17); People v. Horning (2004) 34 Cal.4th 

871, 907.) 

 CALCRIM No. 730, as given here, adequately conveyed this nonincidental 

requirement for the felony. Murray, in concluding otherwise, reads the instruction’s first 

sentence in isolation, and its second sentence with mental gymnastics. This reading does 

not meet the legal standard of a “reasonable likelihood” of juror misunderstanding. In 

fact, Horning concluded that the second sentence of CALJIC No. 8.81.17, on its own (see 

quote above), adequately conveyed the nonincidental requirement. (Horning, supra,

34 Cal.4th at pp. 907-908.) CALCRIM No. 730, as given here, was at least the 

equivalent of the second sentence of CALJIC No. 8.81.17. 

 Murray notes, however, that the prosecutor further confused matters by arguing 

that “the elements of the special circumstance were ‘[e]xactly what I’ve already discussed 

[regarding felony murder].’ ” In this argument, though, the prosecutor was referring to 

the threshold matters of the commission of the robbery or the burglary for felony murder 

and for special circumstance felony-murder, and not to the special circumstance 

requirement of a nonincidental felony. 

 We conclude the trial court properly instructed with CALCRIM No. 730 as given 

here. 

D. The Trial Court Did Not Err Prejudicially in Giving a Partial Instruction on 

Natural and Probable Consequences Liability 

 There are two kinds of aider and abettor liability, one of which involves natural 

and probable consequences. 
13 

 First, an aider and abettor is liable for a criminal offense that he knowingly and 

intentionally helped commit. (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) The trial 

court properly gave standard instructions on this type of aider and abettor liability. 

 Second, under the natural and probable consequences doctrine, an aider and 

abettor is liable for any other offense that was a natural and probable consequence of the 

crime aided and abetted. (People v. McCoy, supra, 25 Cal.4th at p. 1117.) In giving a 

standard instruction defining an aider and abettor, the trial court, erroneously, included 

the following optional language on the natural and probable consequences doctrine, 

which was inapplicable here: “Under some specific circumstances, if the evidence 

establishes aiding and abetting of one crime, a person may also be found guilty of other 

crimes that occurred during the commission of the first crime.” 

 Under this erroneous instruction, Murray argues, jurors were told an aider and 

abettor could be found guilty of other crimes “[u]nder some . . . circumstances,” but those 

circumstances were “completely undefined”; this allowed the jury unguided discretion to 

decide if he was guilty of some other crime committed on the same occasion “beyond 

whatever crime(s) he intended.” Murray notes that jurors apparently doubted whether he 

was the shooter, by finding that he personally used (rather than personally discharged) a 

firearm; this, says Murray, confirms a real risk that some or all jurors found he was liable 

for murder under the natural and probable consequences doctrine. 

 We disagree. The natural and probable consequences doctrine was never 

presented or argued at trial. This erroneous instructional fragment pales in comparison to 

the detailed instructions and requisite findings the jury was provided to find Murray was 

a murderer here. As Murray recognizes, the “specific circumstances” in the erroneous 

instruction were left “completely undefined.” Thus, the jury had no context of 

circumstances in which to apply this instruction. 
14 

 Generally, giving an irrelevant or inapplicable instruction is only a technical error, 

which does not require reversal. (People v. Cross, supra, 45 Cal.4th at p. 67.) That 

describes the situation here. 

E. The Trial Court Properly Instructed Regarding Voluntary 

Intoxication and Mental Impairment 

 Murray contends that in stark contrast to the instruction on involuntary 

intoxication, which mandated that the jury consider evidence of involuntary intoxication 

on required mental states, the instructions on voluntary intoxication and mental 

impairment allowed the jury discretion to consider such evidence. We disagree. 

 As relevant, the three instructions provided as follows. 

 As to involuntary intoxication: “Consider any evidence that a defendant was 

involuntarily intoxicated in deciding whether that defendant had the required intent or 

mental state when he acted.” 

 As to voluntary intoxication: “[Y]ou may consider evidence, if any, of a 

defendant’s voluntary intoxication only in a limited way. You may consider that 

evidence only in deciding whether that defendant acted with the specific intent or mental 

state required for that crime or allegation.” 

 And, as to mental impairment: “You have heard evidence that defendant [Murray] 

may have suffered from a mental impairment. You may consider this evidence only for 

the limited purpose of deciding whether, at the time of the charged crime, [d]efendant 

Murray acted with the intent or mental state required for that crime or allegation.” 

 These three instructions do not present any improper mandatory versus 

discretionary dichotomy argued by Murray. (See People v. Stevenson (1978) 

79 Cal.App.3d 976, 987 [on retrial there, the jurors were to be instructed that they must 

consider evidence of intoxication rather than that they should].) As the People correctly 

recognize, the instructions on voluntary intoxication and mental impairment do not 
15 

suggest the jury was free to ignore that evidence; these two instructions merely told the 

jury that such evidence could be considered only for a limited purpose—in fact, the same 

purpose for which the evidence of involuntary intoxication could be considered. 

F. The Trial Court Properly Instructed Regarding the Corroboration Requirement for 

the Accomplice Testimony of Tamika; if Not, the Error Was Harmless 

 Murray contends the trial court erroneously instructed the jury that if the crime of 

robbery or burglary was committed, then Tamika was an accomplice as a matter of law to 

that crime and her testimony should be viewed with caution and could not be used by 

itself to convict defendants. Murray claims Tamika’s accomplice status should have been 

left as a question of fact for the jury; making her an accomplice as a matter of law all but 

told the jury that Tamika was an accomplice in this assertedly tandem robbery/burglary, 

unfairly imputing guilt to Murray and decimating his defense argument that he was 

merely a drunken dupe along for the ride too and did not go inside the Martin-Warren 

apartment (as Tamika also claimed). 

 As the People point out, however, nothing in the challenged accomplice 

instructions suggested that Tamika was an accomplice of Murray or that Murray 

participated in any crimes. Tamika, who was serving a prison sentence for her 

involvement in the crimes charged, was an accomplice to the crimes independent of any 

involvement of Murray. Furthermore, as noted previously, little evidence supported 

Murray’s argument that he was merely a drunken friend along for the ride who did not go 

inside the Martin-Warren apartment. 

 Even if we assume the trial court erred in deeming Tamika an accomplice as a 

matter of law, we would not reverse. It is not reasonably probable that Murray would 

have fared better had Tamika’s accomplice status been left to the jury as a question of 

fact—making her an accomplice as a matter of law ensured that her testimony against 

Murray would be viewed skeptically. (People v. Watson (1956) 46 Cal.2d 818, 836 

[setting forth this standard of reversible error].) Furthermore, analogizing Murray to 
16 

Tamika could have helped Murray because Tamika was convicted only of being an 

accessory to the charged crimes. 

G. Special Circumstance Felony-murder Is Constitutionally Specific 

 Murray claims that the offense of special circumstance felony-murder 

unconstitutionally fails to narrow, in any rational way, the class of persons subject to 

LWOP or the death penalty, when contrasted with simple felony murder which carries a 

sentence of 25 years to life. 

 Murray recognizes that the state Supreme Court has consistently rejected the claim 

that special circumstance felony-murder does not adequately narrow the class of persons 

subject to the death penalty. (See, e.g., People v. Pollock (2004) 32 Cal.4th 1153, 1195.) 

He points out, however, that the state high court has not considered this issue in the 

context of LWOP. All we can say to that is, even more so, the special circumstance 

felony-murder is constitutional in the LWOP context. 

 But Murray argues that “[a]t least capital defendants receive added rational 

narrowing in penalty phases. LWOP defendants do not. Without any added penalty 

factors, or even a penalty trial, imposition of a drastic term of LWOP, versus 25 years to 

life for felony murder, based on the same conduct, is arbitrary and unconstitutional . . . .” 

 This argument goes off the rails in concluding that simple felony murder and 

special circumstance felony-murder are “based on the same conduct.” The most pertinent 

distinction between the two, and a distinction properly instructed upon here, is this: With 

the simple variety, a perpetrator simply kills while committing the qualifying felony; in 

the special circumstance context, a perpetrator kills to carry out or advance the felony. It 

is this more purposeful killing that constitutionally narrows the class of persons subject to 

LWOP or the death penalty for special circumstance felony-murder. (See People v. 

Pollock, supra, 32 Cal.4th at p. 1195.) 
17 

H. In Light of the United States Supreme Court’s Postsentencing Decision in Miller,

Remand Is Required for the Trial Court to Exercise Its Discretion in 

Sentencing Murray to LWOP or to a Term of 25 Years to Life 

for the Special Circumstance Felony-murder 

 Murray contends that the federal Constitution’s Eighth Amendment ban on cruel 

and unusual punishment requires a remand for resentencing on his special circumstance 

felony-murder sentence of LWOP, in light of the United States Supreme Court’s decision 

in Miller, supra, 557 U.S. ___ [183 L.Ed.2d 407]. Miller was decided about eight 

months after the sentencing hearing here. We agree that we must remand for the trial 

court to exercise its sentencing discretion on this offense in light of Miller’s principles. 

(The trial court sentenced Murray to LWOP on the special circumstance felony-murder; 

plus an unstayed sentence of 31 years four months, for the two robberies and firearm 

findings.) 

 Section 190.5, subdivision (b) (hereafter, section 190.5(b)) states, with respect to 

16- and 17-year-old juveniles tried as adults and convicted of first degree specialcircumstance murder, like Murray here: “The penalty for a defendant found guilty of 

murder in the first degree, in any case in which one or more special circumstances . . . has 

been found to be true . . . , who was 16 years of age or older and under the age of 18 

years at the time of the commission of the crime, shall be confinement in the state prison 

for life without the possibility of parole or, at the discretion of the court, 25 years to life.” 

 Based on the text, structure and history of this statute, California appellate court 

decisions have interpreted section 190.5(b) as setting forth LWOP as “the generally 

mandatory . . . [and] presumptive punishment for 16- or 17-year-old special-circumstance 

murderers, and the [sentencing] court’s discretion [as] concomitantly circumscribed to 

that extent.” (People v. Guinn (1994) 28 Cal.App.4th 1130, 1142, italics added; People 

v. Ybarra (2008) 166 Cal.App.4th 1069, 1088-1089 [accord].) 

 Subsequent to these California decisions and to the sentencing hearing in this 

matter, the United States Supreme Court, in late June 2012, decided Miller, supra, 
18 

567 U.S. ___ [183 L.Ed.2d 407]. Miller held that a mandatory LWOP sentence for any 

juvenile offender (i.e., under the age of 18 at the time of the offense) violates the federal 

Constitution’s Eighth Amendment ban on “cruel and unusual punishments.” (567 U.S. at 

pp. ___ [183 L.Ed.2d at pp. 414-415, 424].) 

Miller based its decision on two strands of high court precedent concerned with 

the concept of proportionate punishment, a concept central to the Eighth Amendment. 

Such a mandatory LWOP scheme, said Miller, (1) prevents the sentencing authority, be it 

“judge or jury,” from considering a juvenile’s “ ‘lessened culpability’ ” and “greater 

‘capacity for change’ ” (relative to adults), and (2) does not meet the requirement of 

“individualized sentencing” for defendants facing the most serious penalties. (Miller,

supra, 567 U.S. at pp. ___ [183 L.Ed.2d at pp. 414, 415, 417-418, 421-422], citing in part 

Graham v. Florida (2010) 560 U.S. ___ [176 L.Ed.2d 825] and Roper v. Simmons (2005) 

543 U.S. 551 [161 L.Ed.2d 1].) 

 LWOP is the harshest possible penalty constitutionally available for juveniles, in 

light of Roper’s holding that the Eighth Amendment categorically bans the death penalty 

for juvenile offenders, and Graham’s holding that the Eighth Amendment categorically 

bans LWOP for a juvenile convicted of a nonhomicide offense. (See Miller, supra, 

567 U.S. at pp.___ [183 L.Ed.2d at pp. 417-418, 430].) The Miller court characterized its 

decision as requiring only that a “sentencer” (“judge or jury”) “follow a certain process” 

before imposing this harshest possible penalty on a juvenile offender: i.e., consider the 

offender’s youth and the hallmark features of youth (among them, immaturity, 

impetuosity, and failure to appreciate risks and consequences); and consider, in an 

individualized way, the nature of the offender and the offense (for example, as relevant, 

the offender’s background and upbringing, mental and emotional development, and 

possibility of rehabilitation). (Miller, at pp. ___ [183 L.Ed.2d at pp. 426, 422-423, 421-

422]; see also id. at pp. ___ [183 L.Ed.2d at pp. 414-415, 417-418, 430].) 
19 

Miller further remarked that “given all we have said in Roper, Graham, and this 

decision about children’s diminished culpability and heightened capacity for change, we 

think appropriate occasions for sentencing juveniles to this harshest possible penalty will 

be uncommon. That is especially so because of the great difficulty we noted in Roper

and Graham of distinguishing at this early age between ‘the juvenile offender whose 

crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose 

crime reflects irreparable corruption.’ [Citations to Roper and Graham.] Although we 

do not foreclose a sentencer’s ability to make that judgment [i.e., LWOP] in homicide 

cases, we require it to take into account how children are different, and how those 

differences counsel against irrevocably sentencing them to a lifetime in prison.” (Miller, 

supra, 567 U.S. at p. ___ [183 L.Ed.2d at p. 424].) 

 Recently, our state high court, in People v. Caballero (2012) 55 Cal.4th 262, 

pointedly quoted for our purposes the following language from Miller, “ ‘[N]one of what 

[Graham] said about children—about their distinctive (and transitory) mental traits and 

environmental vulnerabilities—is crime-specific. Those features are evident in the same 

way, and to the same degree, when . . . a botched robbery turns into a killing. So 

Graham’s reasoning implicates any life-without-parole sentence imposed on a juvenile 

[i.e., Miller extended Graham’s reasoning (but not its categorical LWOP-ban) to 

homicide cases].’ ” (Caballero, supra, at p. 267, quoting Miller, supra, 567 U.S. at 

p. ___ [183 L.Ed.2d at p. 420].) 

 Here, the trial court judge did not have the benefit of Miller’s constitutional 

guidance in sentencing under section 190.5(b). Instead, the judge was obligated to follow 

the LWOP-presumptive punishment interpretation of that statute from the appellate court 

decisions in Guinn and Ybarra. (Auto Equity Sales, Inc. v. Superior Court (1962) 

57 Cal.2d 450, 455.) 
20 

 The constitutional protections recognized in Miller apply to Murray on appeal 

because his case is not yet final. (Griffith v. Kentucky (1987) 479 U.S. 314, 322, 328 

[93 L.Ed.2d 649, 658, 661].) A sentencing remand, then, is necessary so the trial court 

can exercise its discretion to impose a sentence of LWOP or a sentence of 25 years to life 

on Murray’s conviction for special circumstance felony-murder—in light of Miller, 

without having to consider LWOP as the “generally mandatory” or “presumptive” choice. 

 As one would expect from this legal posture of Miller’s unavailability to the trial 

court, the sentencing record shows that the “certain process” mandated in Miller for 

juvenile LWOP sentencing was not fully applied here. 

 The trial court, in part, covered the nature of the offense and the offender. 

 As for the nature of the offense, the court found Murray to be the shooter, though 

the jury did not do so (the jury found Murray personally used, rather than personally 

discharged, a firearm; the trial court noted the jury did not have the benefit of the 

statements of the other participants in this incident). 

 As for Murray’s background and upbringing (i.e., the nature of the offender), the 

court noted the absence of a father in Murray’s life; and noted that Murray, at age 14, had 

assaulted another student at school and assaulted the vice-principal who broke up that 

fight; had been involved in numerous fights with jail inmates while incarcerated during 

the pending proceeding; and was “not salvageable.” But the trial court failed to note the 

absence, for much of Murray’s life, of a mother as well (due apparently to psychiatric 

hospitalizations), and that Murray spent much of his childhood in foster care. Nor did the 

trial court say much, if anything, about Murray’s mental and emotional development, 

including his borderline intellectual capacity and impaired judgment, his susceptibility to 

influence from the other two defendants here (who were adults), and his apparent 

intoxication at the time of the crimes. 
21 

 And the trial court did not consider Murray’s youth and the hallmark features of 

youth (among them, immaturity, impetuosity, and failure to appreciate risks and 

consequences). The court remarked that Murray was a juvenile “technically,” observing 

more than once that Murray was just two months shy of 18 at the time of the offenses. 

 Consequently, we shall reverse the judgment of sentence as to Murray and remand 

for resentencing, in light of Miller, on his conviction for special circumstance felonymurder.5 

I. Cumulative Error 

 Lastly, Murray contends the cumulative effect of the alleged errors discussed 

above render his conviction unfair. Given that discussion, we disagree. 

II. Defendant Reed’s Appeal 

A. Substantial Evidence Supports a Special Circumstance Finding that 

Reed Acted with Reckless Indifference to Human Life 

 To find special circumstance first degree felony murder and impose the ultimate 

punishment of LWOP or death in line with the federal Constitution’s Eighth Amendment 

ban on cruel and unusual punishment, a defendant must have been the actual killer; or, if 

the defendant was not the actual killer, the defendant must have intended to kill, or must 

have been a major participant in the felony and acted with reckless indifference to human 

life. (§ 190.2, subds. (c), (d); People v. Estrada (1995) 11 Cal.4th 568, 572; see Tison v. 

Arizona (1987) 481 U.S. 137, 158 [95 L.Ed.2d 127, 145].) 

 

5 Murray claims the probation report for sentencing, to which he did not object, was 

“unreliable.” An unobjected-to probation report is generally a proper source of 

information upon which judicial sentencing discretion may be exercised. (People v. Chi 

Ko Wong (1976) 18 Cal.3d 698, 725.) 

 Furthermore, given our sentencing remand, it is unnecessary at this point to consider 

Murray’s contentions that an LWOP sentence is unconstitutionally cruel and unusual 

under the federal and state Constitutions. 
22 

 Proceeding from the assumption that he was not the shooter, defendant Reed 

contends the evidence was insufficient to show he acted with reckless indifference to 

human life in the robbery and burglary. We disagree. 

 As noted, to determine the sufficiency of evidence to support a criminal 

conviction, including a special circumstance finding, an appellate court reviews the entire 

record in the light most favorable to the prosecution to determine whether it contains 

evidence that is reasonable, credible, and of solid value, from which a rational trier of fact 

could find the defendant guilty beyond a reasonable doubt. (People v. Kipp, supra,

26 Cal.4th at p. 1128; People v. Mayfield, supra, 14 Cal.4th at pp. 790-791.) 

 As the jury was properly instructed, the term “reckless indifference to human life” 

means that the defendant “knowingly engage[d] in [the underlying felony] that he kn[ew] 

involve[d] a grave risk of death.” (See People v. Estrada, supra, 11 Cal.4th at p. 577.) 

 The evidence showed that Reed recruited the younger, possibly intoxicated, 

teenager Murray to help in an armed home invasion robbery of a marijuana seller, and 

Reed asked Murray to provide the weaponry. Murray provided two handguns (Reed 

claimed the gun Murray gave him was not loaded). During the robbery, Reed initially 

pointed his gun at Warren, and Murray initially pointed his at Martin, and Reed told 

Murray that if “they [Warren and Martin] do anything, shoot them.” Reed, who was in 

command, repeatedly told Murray that if the robbery victims moved (from where they 

had been ordered to sit), Murray should shoot and kill them. It could have come as no 

surprise that Murray would use his weapon as Reed had commanded when the murder 

victim supposedly scuffled with Murray. 

 Though these facts arguably are not as egregious as those of the nonkillers in 

Tison, they are sufficient for a rational jury to have found beyond a reasonable doubt that 

Reed acted with a reckless indifference to human life. 
23 

B. Trial Counsel Was Not Ineffective 

 Reed contends his trial counsel rendered ineffective assistance by arguing to the 

jury, in closing argument, that Reed was guilty of the robbery and the burglary, but not 

the murder. Reed argues that his trial counsel’s sole reliance, in a felony-murder case, on 

the legally invalid defense that Reed was “not a killer” required the jury to ignore the law 

as instructed, and conceded that Reed was guilty of first degree felony murder. This, says 

Reed, constituted a “complete denial of counsel” for which prejudice must be presumed 

under United States v. Cronic (1984) 466 U.S. 648, 659 [80 L.Ed.2d 657, 668]. 

 To establish ineffective assistance of counsel, a defendant must show (1) his 

counsel performed unreasonably, and (2) there is a reasonable probability the result 

would have been more favorable absent such performance (i.e., a probability sufficient to 

undermine confidence in the outcome). (In re Avena (1996) 12 Cal.4th 694, 721.) 

 On the record on appeal, we find Reed’s counsel performed as a reasonable 

attorney. Consequently, Reed cannot establish his trial counsel was ineffective. 

 Prior to trial, Reed admitted the robbery to the police, to a local television reporter 

in a jail interview, and to the decedent’s family, but denied being the shooter. 

 Reed’s admission of robbery, given Heredia-Arriaga’s killing, left trial counsel 

little room to maneuver. It was reasonable for trial counsel to make the best of a bad 

situation, by conceding the issue of first degree felony murder (sentence of 25 years to 

life) and trying to convince the jury that Reed was not guilty of the special circumstances 

(sentence of LWOP), because Reed, as the nonshooter, did not act with reckless 

indifference to life. 

 Reed asserts his counsel did not explicitly argue the reckless indifference issue, 

and should have tendered a defense based on the prosecution’s failure to meet the heavy 

burden of proof beyond a reasonable doubt. These points were implicit in counsel’s 
24 

argument, and explicit in the instructions provided the jury. Furthermore, for these 

reasons, there was not the complete denial of counsel as envisioned in Cronic. 

C. Reed Has Forfeited His Claim Regarding Fees; 

in any Event, any Error Was Harmless 

 Reed contends there is insufficient evidence to support the trial court’s implied 

finding that he had the ability to pay a main jail booking fee of $270.17 and a main jail 

classification fee of $51.34, imposed pursuant to Government Code section 29550.2. 

 Reed has forfeited these contentions because he failed to raise them at sentencing. 

(People v. McCullough (2013) 56 Cal.4th 589, 591, 597; People v. Hodges (1999) 

70 Cal.App.4th 1348, 1357.) 

 In any event, any error in this regard was harmless here. The challenged fees total 

$321.51, payable through the court’s installment process. Reed has been sentenced to 

LWOP, plus a determinate term of 31 years four months. He is a young man. Thus, 

there is sufficient evidence that he will be able to pay off this amount through prison 

work wages. 

III. Defendant Owens’s Appeal 

A. The Trial Court Did Not Err in Responding to Jury Question 

 Defendant Owens contends the trial court erroneously responded to a jury 

question, during deliberations, regarding phone records that a detective showed Owens 

while interviewing him. We disagree. 

 While interviewing Owens on April 28, 2010, Detective Ashley Englefield 

apparently showed Owens his cell phone records and told him the records showed: (1) 

that Owens and Tamika had called one another several times the day of the murder 

(Owens responded to this information, “Oh shit. I—I don’t know. I guess, you feel 

me?”); and (2) that Owens had gone to Tamika’s after the murder given the location of 

the cell phone towers his phone was using (Owens had denied this journey). 
25 

 A tape of this interview was played and transcribed for the jury, and the parties 

had stipulated that the tape was an “accurate” copy of the interview. 

 During its deliberations, the jury asked the trial judge the following question: “On 

the videos that Owens reviewed a list of phone calls, the lawyers stipulated that the 

videos are fact. We want to confirm that the phone records are in evidence based on the 

stipulation and are con[s]idered fact?” 

 The trial judge responded, “No physical telephone records were introduced into 

evidence in this case. Documents were shown to Mr. Owens in the video purporting to 

be telephone records. As to the authenticity of the records, it is up to you to determine 

whether or not the documents were in fact telephone records, and what if any relevance 

they have. [¶] The stipulation was that the video accurately reflected the events that took 

place in the interview room; it is up to you to determine what if any relevance those 

events have in this case.” 

 Owens argues that the jury should not have been told that it should determine if 

the phone records, which were not placed into evidence, were authentic. Owens 

maintains the trial judge should have responded along the following lines: “The jury is 

not to consider the documents seen in the video as evidence of telephone records but only 

as documents displayed during the interrogation. Whether or not the documents were in 

fact telephone records has not been established. Representations by the officer as to their 

content should not be considered as being true or not being true.” 

 Owens’s suggested response is more legally accurate than the one the trial judge 

gave here. But we think the trial judge’s response, in light of other instructions the judge 

gave, properly instructed the jury on this point. 

 The first thing the trial judge told the jury in responding to the jury’s inquiry was: 

“No physical telephone records were introduced into evidence in this case.” This went to 
26 

the heart of the jury’s question and dispelled the jurors from thinking these records were 

in evidence and were “con[s]idered fact” based on the lawyers’ stipulation. Furthermore, 

the jury had also been instructed that it must “decide what the facts are” and “what 

happened, based only on the evidence that has been presented to [it] in this trial”; and that 

it “must use only the evidence that was presented in this courtroom.” 

 The portion of the trial judge’s response about the “authenticity” of the records 

was framed in a layperson, rather than a legal, context. The trial judge had previously 

admonished the jury regarding Tamika’s taped interview with the police: “One thing I 

want to let you know, though, about these tapes. What’s important is the statements that 

the person on the tape is making. Sometimes the detectives will give them information in 

order to get a response or to get a reaction out of that person. What you hear the 

detectives say on the tape when they say that so and so told me such and such, you should 

not consider that for the truth of what the detective is saying because it’s hearsay. I’m 

letting it in because it may give meaning to, in this case, [Tamika’s] response, but what 

the detective is telling her that somebody else said to him, you are not to take for the truth 

of the matter. Okay?” 

 Given the trial judge’s response, in light of the other relevant instructions he 

provided, we do not believe the trial court erred on this point. Assuming for the sake of 

argument the judge did err, that error was harmless given this overall instructional 

context. 

B. The Trial Court Did Not Abuse Its Discretion in Allowing the Testimony of 

Defendant Murray’s Aunt as a Prior Consistent Statement of Tamika 

Following Tamika’s Impeachment 

 Tamika testified that her brother (defendant Reed), on the night of the murder, 

phoned for directions to Owens’s residence; that when she, Reed and Murray arrived at 

that residence, Reed made another call and then told Tamika to follow Owens’s car; and 
27 

that, after arriving at the apparent destination, Owens told Reed and Murray to go to a 

certain apartment, knock on the door, and then use some type of word or code. 

 Owens’s counsel subsequently tried to impeach Tamika, noting that Tamika had 

“add[ed] [Owens] into the story,” that Tamika would tell the police “whatever they 

wanted to hear,” that Tamika would “do or say anything” if it meant that she could be 

with her daughter, and that Tamika never knew anything about anyone planning a 

robbery. 

 Owens’s counsel later expressed concern about Owens’s jury hearing purported 

testimony from defendant Murray’s aunt that Tamika had said Owens set up the robbery. 

 The trial court then noted that Tamika had testified that defendant Reed told her 

that Owens “had set this up.” Owens’s counsel agreed with this assessment. The trial 

court further noted that Owens’s cross-examination of Tamika implied that Tamika 

“recently fabricated” Owens’s involvement, and that if Tamika made the “set-up” 

statement before that, the “set-up” statement was a prior consistent statement admissible 

to support Tamika’s credibility. Based on this reasoning, the trial court admitted this 

challenged testimony of defendant Murray’s aunt. 

 A trial court’s evidentiary rulings are reviewed under the abuse of discretion 

standard. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1388.) 

 As relevant here, evidence of a statement previously made by a witness that is 

consistent with her testimony at the hearing is inadmissible to support her credibility 

unless it is offered after an express or implied charge that the witness’s testimony was 

recently fabricated, and the statement was made before the motive for fabrication arose. 

(Evid. Code, § 791, subd. (b).) 

 The trial court did not abuse its discretion in allowing Owens’s jury to hear the 

testimony of defendant Murray’s aunt regarding Tamika’s statement to her that Owens 
28 

set up the robbery. Although Tamika never testified explicitly that Owens had “set up” 

the robbery, she testified in effect to that, and this is why Owens’s counsel had agreed 

with the trial court’s assessment of Tamika’s testimony. The testimony of defendant 

Murray’s aunt regarding Tamika’s “set up” statement fell within the admissibility criteria 

of Evidence Code section 791, subdivision (b). 

 Owens further notes that the prosecution initially brought up Tamika’s plea deal, 

and asserts that the hearsay testimony of defendant Murray’s aunt regarding Tamika’s 

“set up” statement falls within the evidentiary prohibition that a party cannot introduce 

evidence of a collateral fact to impeach a witness, only to then rehabilitate the witness 

with otherwise inadmissible evidence. (People v. Lavergne (1971) 4 Cal.3d 735, 744.) 

That did not happen here. Tamika’s plea deal is not a collateral fact, and the prosecution 

did not introduce the deal to impeach her (Tamika was a prosecution witness); defendant 

Murray did. 

DISPOSITION 

 The judgment of conviction against defendant Murray is affirmed. The judgment 

of sentence against defendant Murray is reversed, and the matter is remanded for the trial 

court to exercise its sentencing discretion regarding Murray’s conviction for special 

circumstance felony-murder, in light of Miller, supra, 557 U.S. ___ [183 L.Ed.2d 407]. 

The judgments against defendants Reed and Owens are affirmed. 

 BUTZ , J. 

We concur: 

 BLEASE , Acting P. J. 

 MAURO , J.