1

Filed 6/30/14

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR TYRONE GARRETT,

Defendant and Appellant.

C067436

(Super. Ct. No. 08F09401)

THE PEOPLE,

Plaintiff and Respondent,

v.

ERION DEMONTA VARNADO,

Defendant and Appellant.

C069886

(Super. Ct. No. 08F09401)

APPEALS from judgments of the Superior Court of Sacramento County, 

Laurie M. Earl and James P. Arguelles, Judges. Reversed in part and affirmed in part.

Barbara Michel, under appointment by the Court of Appeal, for Victor Tyrone 

Garrett, Defendant and Appellant.

 

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is 

certified for publication with the exception of parts I through VII of the discussion.
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Victor J. Morse, under appointment by the Court of Appeal, for Erion Demonta 

Varnado, Defendant and Appellant. 

Kamala D. Harris, Attorney General, Dane R. Gillette, Michael P. Farrell, 

Assistant Attorneys General, Charles A. French, Craig S. Meyers and Daniel 

B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

In November 2008, defendants Victor Tyrone Garrett and Erion Demonta Varnado 

participated in armed robberies and an attempted armed robbery.1 Both Garrett and 

Varnado were 17 years old when the offenses were committed, but were tried as adults. 

(Welf. & Inst. Code, § 707, subds. (b)(3) & (c).) 

A jury convicted Garrett of six counts of second degree robbery (Pen. Code, 

§ 211),2two counts of kidnapping for robbery (§ 209, subd. (b)(1)), one count of 

attempted robbery (§§ 211/664), and one count of assault with a firearm (§ 245, 

subd. (a)(2)). For each of the offenses, the jury found true the allegation Garrett 

personally used a firearm (§ 12022.53, subd. (b)), and as to the assault with a firearm that 

Garrett personally discharged a firearm. (§ 12022.53, subd. (c).) Garrett was sentenced 

to serve a total of 74 years and 4 months to life in prison. 

Varnado was also convicted by a jury of two counts of second degree robbery, one 

count of attempted robbery, and one count of assault with a firearm. The jury also found 

true the allegation Varnado personally used a firearm during the assault and attempted 

robbery. However, the jury found Varnado not guilty of four counts of robbery. The jury 

was unable to reach a verdict as to the two counts of kidnapping to commit robbery, the 

allegation Varnado personally used a firearm during the second degree robberies, or he 

 

1 Garrett and Varnado were charged along with Antwaan Edwardo Anderson and 

Vance Hicks. Anderson pled guilty before trial, and Hicks admitted his guilt after trial 

commenced. Neither Anderson nor Hicks is a party in this appeal. 

2 Undesignated statutory references are to the Penal Code.
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discharged a firearm during the attempted robbery. The trial court declared a mistrial as 

to the counts and enhancements for which the jury could not reach a verdict. 

On retrial, Varnado was convicted of the remaining two counts of second degree 

robbery, and the jury found true the allegation he used a firearm during these robberies. 

The second jury was not asked to decide whether Varnado discharged a firearm during 

the attempted robbery. Varnado was sentenced to serve a total of 31 years to life in 

prison. 

On appeal, both defendants contend (1) the evidence of asportation was 

insufficient to support their convictions of kidnapping for robbery. In a related argument, 

Varnado contends (2) the trial court erred in refusing defense counsel’s proposed 

instruction informing the jury that “incidental” movement does not amount to kidnapping 

for robbery. 

Varnado further argues (3) evidence regarding the firing of a gun during the 

attempted robbery was improperly admitted during his retrial to prove he used a gun on a 

separate occasion, (4) insufficient evidence of intent to commit theft requires reversal of 

his attempted robbery conviction, and (5) an unduly suggestive identification procedure 

was used to identify him two days after the robbery. 

Garrett separately argues that (6) an in-field show up employed by the police 

shortly after his arrest was an unduly suggestive identification procedure, (7) his Miranda

rights were violated during his interrogation by the police,3 and (8) his prison sentence of 

74 years and 4 months to life constitutes cruel and unusual punishment because he was a 

minor at the time of the offenses. 

We conclude the defendants’ act of moving the victims of kidnapping for robbery 

from where they were standing into the locked trunk of a car sufficed for the asportation 

requirement of the offense. Contrary to Varnado’s contention, the trial court was not 

 

3 See Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694; 86 S.Ct. 1602].
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required to give defense counsel’s proposed pinpoint instruction. We also find no error 

in the admission of testimony regarding the discharge of a firearm during the attempted 

robbery. The evidence was sufficient to establish intent to commit robbery during the 

attempted robbery. And, the police did not use an unduly suggestive identification 

procedure two days after Varnado’s arrest.

As to Garrett’s separate claims, the in-field show up did not constitute an unduly 

suggestive identification procedure. And, the police did not violate his Fifth Amendment 

rights because Garrett knowingly and voluntarily waived his rights after being given a 

Miranda advisement. However, we conclude Garrett’s sentence of 74 years and 4 

months to life in state prison requires remand for resentencing under the guidance of the 

California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 (Caballero). 

Accordingly, we affirm the judgment as to Varnado. We affirm Garrett’s 

convictions, but reverse and remand for resentencing. 

BACKGROUND

Robberies of Kilgore, Cheatham, Douglas, and Cordero (Counts 1-4)

At approximately 9:00 p.m. on November 15, 2008, Jaquan Cheatham and Lonnie 

Kilgore were walking to a 7-Eleven store. Two males with guns approached Cheatham 

and instructed him to empty his pockets. Cheatham heard the cocking of a gun and 

turned over his school identification and telephone. Cheatham gave the robbers his pants 

so they would know he had turned over everything. Kilgore also took off clothing and 

handed it to the robbers. 

Thomas Douglas and Alexis Cordero were nearby and watched Cheatham and 

Kilgore get robbed. Cordero explained she initially saw a black car with three male 

occupants. Cordero then “had a bad feeling” and turned around to see two of the males 

“attack” a boy behind her. The robbers brandished guns and took everything from the 

boy –- even his clothes. 
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Fearing the robbers would attack her group too, Cordero told her friends to run 

away. Cordero and Douglas hid behind a nearby van. When the same black car drove 

by, Cordero heard someone from the car tell them to come out from behind the van. 

Cordero and Douglas did so with their hands up. One of the robbers instructed, “Lean up 

against the garage and give us everything that you have.” The same two robbers that had 

attacked the boy appeared with guns drawn and took Cordero’s shoes, jacket, money, cell 

phone, and chain. Douglas gave the robbers his necklace and wallet. 

At approximately 3:00 a.m. on November 28, 2008, Sacramento County Sheriff’s 

Deputy Michael Putnam drove Cheatham, Kilgore, Areél Robinson, and Markeisha 

DeMyers to view suspects who had been arrested in Elk Grove. Although Detective 

Mark Bearor at the Elk Grove Police Department planned to line the witnesses up in a 

hallway face-to-face with the suspects, the witnesses refused the proposed procedure. 

Instead, the four witnesses observed the suspects from a patio area through a plate glass 

window at a distance of 15 to 25 feet. Deputy Putnam led the witnesses, one at a time, to 

the patio area where they viewed the suspects. 

As to the defendants in this appeal, Cheatham stated with certainty Varnado was 

one of the males who robbed him. However, Cheatham was not able to identify Garrett. 

DeMyers identified Varnado but not Garrett. The record does not indicate what 

identifications, if any, were made by Kilgore or Robinson. 

Kidnapping for Robbery of Gutierrez and Gribben (Counts 5-8)

Abel Gutierrez and Sheila Gribben went on their first date together on 

November 18, 2008. Shortly after midnight on November 19, 2008, they returned from 

the movies to Gribben’s apartment complex in Sacramento. They talked next to 

Gutierrez’s car for approximately 30 minutes when he noticed a champagne color car 

with four males wearing black sweaters. Gutierrez mentioned to Gribben that 

“something wasn’t right.” Gutierrez lost sight of the car behind a hill, but soon saw the 

four occupants walking by him and Gribben. One of the males pointed a long, silver 
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revolver at Gutierrez’s head and instructed him to take off his clothes. Gutierrez refused 

and was then told to empty his pockets. Eventually, Gutierrez took out his cell phone, 

wallet, and keys, and handed them over. The male with the gun then patted Gutierrez 

down to see if he had turned over everything. Gutierrez was then told to hand over the 

pea coat he was wearing. 

The robbers then told Gutierrez to sit down on a curb. While Gutierrez watched, 

the males took some earrings and keys from Gribben. Gutierrez told them to let Gribben 

go. The male with braids in his hair responded, “She’s not going anywhere.” Gribben 

complied with an instruction to sit next to Gutierrez on the curb. 

The robbers took Gutierrez’s keys and attempted to open the trunk of his car. 

Unable to do so, they told Gutierrez to unlock his trunk. Gutierrez unlocked the trunk by 

pushing a button inside the passenger compartment. The robbers told Gutierrez to give 

them the subwoofer speakers he had in the trunk. But Gutierrez explained they could not 

easily be removed because they were wired to the car. The male with braids responded, 

“We’ll just take the whole damn car.” He then told Gutierrez to get into the trunk. 

Gutierrez feared the males would end up killing them if he and Gribben got into 

the trunk. Hoping to avoid getting into the trunk, Gutierrez told them “just to take off 

and leave, that they had taken everything we had and weren’t going to do anything; that if 

we were going to try anything we would have done that before any of that had 

happened.” The male with braids responded, “Are you trying to die tonight?” The males 

called Gribben over and put her into the trunk with Gutierrez. They slammed the trunk 

twice on Gutierrez’s head when trying to close it and succeeded in closing it on the third 

try. Gutierrez worried they would not be able to get out. 

Gutierrez and Gribben heard the robbers rummaging through the car for a few 

minutes before they left. Gribben began to panic and Gutierrez tried to calm her down. 

After hearing the robbers run away, Gutierrez and Gribben waited for a few minutes 

before Gutierrez began to tear away the lining of the trunk. Gutierrez and Gribben 
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shouted for help. Approximately 5 to 10 minutes later, Gribben’s housemate let them out 

and called the police. Gutierrez discovered an iPod and headphones had been taken from 

the interior of the car. Gribben’s watch and camera also had been taken. 

Several hours later, Sacramento Police Officer Wesley Nezik received word a 

vehicle matching the descriptions given by Gutierrez and Gribben had been located. 

Officer Nezik contacted Gutierrez and Gribben and transported them to the Elk Grove 

area where the vehicle had been found. Gutierrez immediately recognized the car as the 

one in which he had seen the robbers. Gutierrez and Gribben also recognized items 

stolen from them. 

Officer Nezik then drove Gutierrez and Gribben to an in-field show up at the Elk 

Grove Police Department. Officer Nezik testified: “[O]n the way to the police 

department, I explained to them that there were people who were being detained. They 

may or may not be related to their situation from the previous robbery that happened 

there. They may or may not be in handcuffs. If they are, it’s for our safety and for 

theirs.” At the police station, Gutierrez and Gribben were escorted inside but indicated 

they were scared about the prospect of meeting the robbers face to face. Officer Nezik 

led them outside and allowed them to sit in the backseat of the patrol vehicle. The officer 

testified it was not “an ideal way to do it” but he was the only police officer available to 

do a field show-up. The patrol car lights were turned on and the suspects were brought 

into the light one at a time. Given the unusual nature of the field show-up, Officer Nezik 

instructed Gutierrez and Gribben not to discuss the suspects between themselves. The 

victims agreed. 

As to the defendants in this appeal, Gribben stated about Varnado that he had “a 

similar haircut” to one of the robbers. By contrast, Gutierrez “stated that he did 

recognize the hair [on Varnado] because it was very distinct because the braids were 

sticking up in the air.” Neither Gutierrez nor Gribben recognized the second suspect, 

Vance Hicks. When Anderson was brought out, Gribben stated: “That’s him. He was 
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the one pointing the gun at me demanding my stuff” and one of the males who told them 

to get into the trunk. Gutierrez also “seemed very confident” in identifying Anderson. 

When Garrett was brought out, Gribben was “not sure about him.” Gutierrez said Garrett 

“looked familiar and that someone there on scene was wearing . . . similar clothing.” 

Assault and Attempted Robbery of Mangano (Counts 9-10)

Early in the morning on November 18, 2008, John Mangano delivered newspapers 

by car in Elk Grove. Mangano had just gotten back into his vehicle when a “silverfish 

color” car pulled diagonally in front of his car “and blocked [him] off.” Mangano noticed 

three doors open and three males got out of the car. Mangano asked, “Well, what’s going 

on?” He then observed the male behind the driver holding a black revolver at waist level. 

Mangano threw his car into reverse, ducked down, and began to drive away. Before he 

ducked, Mangano caught a glimpse of four males from the car. 

Mangano had driven approximately 20 to 25 feet when he heard a gunshot. When 

Mangano next looked up, he saw two of the males were holding guns “like in the 

gangster movies” and heard additional shots ring out. Once Mangano had gotten 40 

yards away, he looked up again and saw the males get back into their car. As the car 

drove away on Elk Grove Boulevard, Mangano decided to follow it. While following the 

car, Mangano called the police with his cell phone. Elk Grove Police Officers Shane 

Glaser and Robert Barnes responded to the call in their patrol cars. Matching the 

description of the suspect vehicle and location was a gray, four-door Pontiac Grand Am. 

The officers pulled the car over and arrested the four occupants: Varnado, Garrett, Hicks, 

and Anderson. 

A search of the suspect vehicle turned up two handguns, four spent casings, an 

iPod, headphones, four cell phones, keys, and a purple digital camera, several purses, and 

a black jacket. 

After his arrest, Garrett was interviewed by the police. Garrett admitted he was 

riding with Varnado, Hicks, and Anderson. Along with him, Garrett had a gun he had 
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stolen from his grandfather a few weeks earlier. Garrett’s hands were tested for gunshot 

residue. The test indicated Garrett had recently “fired a weapon, was near a weapon 

when it was fired, or handled a fired weapon or fired ammunition.” 

Defense Evidence

Garrett introduced evidence he was at his house on the evening of November 15, 

2008, when Kilgore, Cheatham, Douglas, and Cordero were robbed. Garrett’s sister, 

Victoria Garrett, testified he had been present the entire time at a family barbecue that 

lasted until 1:00 or 2:00 in the morning. This testimony was corroborated by a friend of 

Garrett’s and by a neighbor who testified Garrett had been present at the barbecue. 

Varnado introduced the testimony of Dr. William Shomer, an expert on witness 

identification, perception, and memory. Dr. Shomer testified that (1) “people are highly 

unreliable with respect to cognition of strangers,” (2) people overestimate their certainty 

of identification when suspects have similar appearances, (3) cross-racial identifications 

tend to be “far less accurate” (4) the stress of being assaulted by a weapon has an adverse 

affect on the ability to remember accurately, and (5) the identification procedure 

employed can make a significant difference in outcomes. 

Varnado’s Retrial

Varnado was retried after the first jury was unable to reach a verdict on the counts 

of kidnapping for robbery against Gutierrez and Gribben or on the allegations of personal 

firearm use against Gutierrez and Gribben. As pertinent to the issues raised on appeal by 

Varnado, the evidence at the second trial showed the robbers made Gribben sit on the 

curb about 10 feet from Gutierrez’s car during the robbery. Gutierrez did not sit, but 

stood next to Gribben. According to Gribben, the robbers did not move them to the curb. 

Instead, Gribben and Gutierrez were already standing there when the robbery started. 

The robbers told Gutierrez to open his car trunk. When the robbers saw the 

subwoofer speakers inside they tried to remove them, but were unsuccessful. They 

debated stealing the car. The robbers then told Gutierrez to get into the trunk. The 
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robbers then instructed Gribben to get up from the curb and climb into the trunk with 

Gutierrez. The robbers twice slammed the trunk onto Gutierrez’s head before they were 

able to close the trunk. 

DISCUSSION

I

Garrett and Varnado’s Arguments Regarding Insufficiency of the Evidence Regarding 

Kidnapping for Robbery

Garrett and Varnado contend the evidence was insufficient to convict them of 

kidnapping for robbery because of the insignificant distance Gutierrez and Gribben were 

moved during the robbery. Specifically, Garrett and Varnado argue the asportation 

requirement of kidnapping for robbery was not met for either victim. We disagree.

A.

Standard of Review

The standard of review for insufficiency of the evidence is well established. In 

reviewing a claim of evidentiary insufficiency, we “view the evidence in the light most 

favorable to the judgment and must presume in support of that judgment every fact that 

the trier of fact could reasonably deduce from the evidence. [Citations.] To survive an 

insufficiency of evidence challenge, the evidence must be substantial enough to support

the finding of each essential element of the crime and special circumstance. Substantial 

evidence is that which is reasonable, credible and of solid value. The trier of fact weighs 

the evidence presented, resolves conflicts in the testimony and draws reasonable 

inferences from the facts before it. If its findings are reasonable and supported by the 

evidence, reversal of the conviction or of the special circumstances finding is not 

warranted even if a contrary finding might also be reasonable.” (People v. Johnson

(1992) 5 Cal.App.4th 552, 558; accord People v. Rodriguez (1999) 20 Cal.4th 1, 11.) 
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B.

Evidence of the Victims’ Movement

Although labeled by Garrett and Varnado as insufficiency of the evidence 

arguments, the gravamen of their contentions is this: the short distance the robbers 

moved Gutierrez and Gribben from the curb to the inside of the car trunk was insufficient 

as a matter of law to sustain a conviction of kidnapping for robbery. Neither Garrett nor 

Varnado disputes they moved Gutierrez and Gribben from where they were standing near 

the car, made the victims get into the trunk of the car, and then closed the trunk to lock 

the victims inside.4 Instead, Garrett and Varnado contend the distance involved in 

Gutierrez’s and Gribben’s robbery was too short as a matter of law to meet the minimum 

requirements of the asportation element of kidnapping for robbery. 

Even though Varnado’s conviction for two counts of kidnapping for robbery rests 

on the evidence presented at his retrial, he does not point to any meaningful difference on 

this issue between the evidence presented at the first trial –- which resulted in Garrett’s 

conviction on the two counts of kidnapping for robbery –- and that presented at the 

second trial in which Varnado was convicted. Our review of both trials shows 

consistency in that the robbers moved Gutierrez and Gribben from the nearby curb to the 

rear of the car, had them get into the trunk, and then closed them inside. 

C.

Kidnapping for Purposes of Robbery (§ 209, subd. (b)(1))

Subdivision (a) of section 207 defines kidnapping as follows: “Every person who 

forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or 

arrests any person in this state, and carries the person into another country, state, or 

 

4 Although the testimony at Varnado’s retrial indicated the robbers moved Gribben 

approximately 5 to 10 feet from the curb to the trunk of the vehicle, the testimony at 

Garrett’s trial does not indicate the distances involved except to note Gutierrez and 

Gribben were moved from where they were standing/sitting into the trunk. 
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county, or into another part of the same county, is guilty of kidnapping.” As the 

California Supreme Court recently noted, “Section 209, subdivision (b)(1) prescribes 

greater punishment for aggravated kidnapping where the accused ‘kidnaps or carries 

away any individual to commit robbery. . . .’ Kidnapping for robbery requires 

asportation, i.e., movement of the victim that is not merely incidental to the commission 

of the robbery and that increases the risk of harm over that necessarily present in the 

crime of robbery itself. (§ 209, subd. (b)(2); People v. Rayford (1994) 9 Cal.4th 1, 12.)” 

(People v. Delgado (2013) 56 Cal.4th 480, 487.)

The test for whether the movement of the victim suffices for a kidnapping for 

robbery conviction was articulated in People v. Daniels (1969) 71 Cal.2d 1119 (Daniels). 

In Daniels, “the court concluded that . . . section 209 not only excluded ‘standstill’ 

robberies from its scope, ‘but also those in which the movements of the victim are merely 

incidental to the commission of the robbery and do not substantially increase the risk of 

harm over and above that necessarily present in the crime of robbery itself.’ (Daniels, 

supra, 71 Cal.2d at p. 1139.) In other words, Daniels ‘construed [the aggravated 

kidnapping statute] to preclude convictions based on movement of the victim that is 

criminologically insignificant.’ ” (In re Crumpton (1973) 9 Cal.3d 463, 466.) 

Determining whether the evidence showed sufficient asportation for kidnapping 

for robbery requires two considerations: “First, ‘ “[i]n determining ‘whether the 

movement is merely incidental to the [underlying] crime . . . the jury considers the “scope 

and nature” of the movement. [Citation.] This includes the actual distance a victim is 

moved. However, . . . there is no minimum number of feet a defendant must move a 

victim in order to satisfy the first prong.’ [Citations.]” [Citations.]’ (People v. 

Washington (2005) 127 Cal.App.4th 290, 297.) ‘Incidental’ means ‘that the asportation 

play no significant or substantial part in the planned [offense], or that it be a more or less 

“ ‘trivial change[] of location having no bearing on the evil at hand.’ ” ’ (People v. Ellis

(1971) 15 Cal.App.3d 66, 70.) ‘ “ ‘The second prong of the Daniels test refers to whether 
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the movement subjects the victim to a substantial increase in risk of harm above and 

beyond that inherent in [the underlying crime]. [Citations.] This includes consideration 

of such factors as the decreased likelihood of detection, the danger inherent in a victim’s 

foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit 

additional crimes. [Citations.] The fact that these dangers do not in fact materialize does 

not, of course, mean that the risk of harm was not increased. [Citations.]’ [Citations.]” 

[Citation.]’ (People v. Washington, supra, 127 Cal.App.4th at p. 297.) The two elements 

of the test are related; ‘whether the victim’s forced movement was merely incidental to 

the [underlying offense] is necessarily connected to whether it substantially increased the 

risk to the victim.’ (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.) ‘[E]ach case 

must be considered in the context of the totality of its circumstances.’ (Ibid.)” (People v. 

James (2007) 148 Cal.App.4th 446, 453-454.)

D.

The Movement of the Victims into the Trunk of the Car Sufficed 

As to Gutierrez, we conclude the robbers’ moving him from the curb to the car 

was incidental to the robbery. Gutierrez had been standing at the curb when the robbers 

tried unsuccessfully to open the trunk of his car. When the robbers told Gutierrez to open 

the trunk, he went to the car and complied. The robbers attempted to take the subwoofer 

speakers from the trunk. However, Gutierrez told them they could not be easily removed 

because they were wired to the car. Up to this point, the robbers moved Gutierrez to 

facilitate their theft of property from Gutierrez and his car. Consequently, the distance 

Gutierrez traveled from the curb to his car and movement around his vehicle does not 

accrue to the asportation requirement of kidnapping for robbery. (People v. Dominguez, 

supra, 39 Cal.4th at p. 1152.)

However, the robbers’ act of forcing Gutierrez to get into the trunk was not 

incidental to the robbery. As Gutierrez told the robbers at the time, they had taken 

everything from him and Gribben without resistance. Placing Gutierrez into the trunk did 
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not enable the robbers to take anything. Consequently, we must consider whether 

moving and locking Gutierrez into the trunk of his car constituted sufficient movement to 

meet the asportation requirement of kidnapping for robbery. 

The distance from outside the trunk to its interior was not far. However, the 

California Supreme Court has made clear that kidnapping for robbery requires no 

minimum distance a defendant must move a victim. (People v. Vines (2011) 51 Cal.4th 

830, 870.) Thus, we proceed to consider the additional factors informing the test for 

sufficient asportation. (Daniels, supra, 71 Cal.2d at p. 1139.) On balance, these factors 

lead us to conclude the evidence was sufficient to convict Garrett and Varnado of kidnap 

for robbery. Moving Gutierrez and Gribben into the trunk and locking them inside 

increased the risks of harm beyond the risks of armed robbery. Even aside from the fact 

Gutierrez was actually hurt when the robbers twice slammed the trunk on his head, the 

confinement increased the risks to both victims. Gutierrez feared getting inside the trunk 

because he thought the robbers would kill him if he complied. This fear is 

understandable because the robbers could have driven the victims to a remote location 

where additional crimes would likely have gone unobserved. Gutierrez had to destroy 

part of his car before he could yell for help. Thus, moving the victims into the locked 

trunk substantially increased the risks to Gutierrez and Gribben that arose from 

concealment, physical confinement, and sound insulation. 

Conversely, the robbers enhanced their opportunity to commit additional crimes 

by locking the victims into the trunk of a car to which the robbers had the keys. Thus, the 

robbers facilitated additional thefts from Gutierrez’s car and increased their chances of 

evading notice when departing the crime scene. 

Inside the locked trunk, the victims were subjected to enhanced risks even if the 

car remained stationary. Such risks included possible injury due to attempts to break out 

and adverse conditions of deprivation if they had failed to escape. Gribben panicked 

while in the trunk. She testified she thought to herself: “I was going to die.” Locking 
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Gutierrez and Gribben inside the trunk decreased the likelihood of detection. Moreover, 

the robbers restrained the victims in a space from which they were unable to escape by 

themselves. Gutierrez and Gribben were freed only after a friend happened to hear them 

banging and yelling after she had turned off her television. 

By moving Gutierrez and Gribben into the trunk of the car, the robbers sufficiently 

increased the risks to the victims that the movement satisfied the asportation requirement 

of kidnapping for robbery. We conclude the evidence supported Garrett and Varnado’s 

convictions of kidnapping for robbery.

II

Varnado’s Request for a Pinpoint Instruction on Movement Necessary for Kidnapping 

for Robbery

In a challenge related to the claim the evidence was insufficient to sustain the 

kidnapping for robbery convictions, Varnado contends the trial court erred in refusing his 

request to instruct the jury that movement of a victim can be merely incidental to the 

robbery even if the movement is not necessary for the robbery. We conclude the trial 

court did not err in refusing to give this instruction. 

A.

Jury Instructions Given on Kidnapping for Robbery

During Varnado’s retrial, the court instructed jurors on kidnapping for robbery by 

giving CALCRIM No. 1203. As to the count alleged for the offense against Gribben, the 

trial court instructed:

“To prove that the defendant is guilty of this crime, the People must prove that: 

[¶] 1. The defendant intended to commit robbery; [¶] 2. Acting with that intent, the 

defendant took, held, or detained Sheila Gribben by using force or by instilling a 

reasonable fear; [¶] 3. Using that force or fear, the defendant moved Sheila Gribben or 

made Sheila Gribben move a substantial distance; [¶] 4. Sheila Gribben was moved or 

made to move a distance beyond that merely incidental to the commission of a robbery; 

[¶] 5. When that movement began, the defendant already intended to commit robbery, 
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and [¶] 6. Sheila Gribben did not consent to the movement. [¶] As used here, 

substantial distance means more than a slight or trivial distance. The movement must 

have substantially increased the risk of physical or psychological harm to the person 

beyond that necessarily present in the robbery. In deciding whether the movement was 

sufficient, consider all the circumstances relating to the movement.” 

The trial court used the same instruction for the additional count of kidnapping for 

robbery, substituting only Gutierrez’s name for Gribben’s. 

In instructing the jury with CALCRIM No. 1203, the trial court rejected a request 

by defense counsel for a pinpoint instruction as follows: “Movement can be incidental to 

the robbery, even if the movement is not necessary for the robbery.” As the trial court 

noted, the defense drew the language of the requested pinpoint instruction from the case 

of People v. Hoard (2002) 103 Cal.App.4th 599. The trial court refused to give the 

pinpoint instruction, questioning the continuing validity of Hoard and finding it would 

confuse the jury. 

B.

Pinpoint Instructions Need Not be Given when Redundant to Other Instructions

“ ‘A criminal defendant is entitled, on request, to instructions that pinpoint the 

theory of the defense case.’ (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) 

Specifically, a criminal defendant ‘is entitled to an instruction that focuses the jury’s 

attention on facts relevant to its determination of the existence of reasonable doubt. . . .’ 

(People v. Johnson (1992) 3 Cal.4th 1183, 1230.) But where standard instructions fully 

and adequately advise the jury upon a particular issue, a pinpoint instruction on that point 

is properly refused.” (People v. Canizalez (2011) 197 Cal.App.4th 832, 856-857.) Thus, 

“[w]e bear in mind that ‘ “ ‘ “[w]hether a jury has been correctly instructed is not to be 

determined from a consideration of parts of an instruction or from particular instructions, 

but from the entire charge of the court.” ’ ” ’ (People v. Tapia (1994) 25 Cal.App.4th 

984, 1027.)” (People v. Hughes (2002) 27 Cal.4th 287, 360.)
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C.

Varnado’s Proposed Pinpoint Instruction

We agree with the trial court that the pinpoint instruction requested by Varnado’s 

trial counsel was redundant and confusing. First, the proposed pinpoint instruction 

merely advised the jury not every movement of a robbery victim would necessarily turn 

the crime into kidnapping for robbery. CALCRIM No. 1203, as given here, sufficiently 

informed the jury kidnapping for robbery of Gribben and Gutierrez required the victims 

to have been “moved or made to move a distance beyond that merely incidental to the 

commission of a robbery” and the distance “must have substantially increased the risk of 

physical or psychological harm to the person beyond that necessarily present in the 

robbery.” Thus, CALCRIM No. 1203 apprised the jury something more than trivial 

movement was necessary to convict Varnado of kidnapping for robbery. Had the trial 

court also instructed –- as Varnado requested –- incidental movement during commission 

of the robbery did not automatically turn the offense into kidnapping for robbery, such 

additional instruction would have been redundant.

More than simply adding information about the asportation element of kidnapping 

for robbery, Varnado’s requested pinpoint instruction would likely have confused the 

jury. Telling the jury that “[m]ovement can be incidental to the robbery, even if the 

movement is not necessary for the robbery” would unnecessarily create a categorical 

morass for the jury by suggesting different types of movement during a robbery, i.e., 

movement that is necessary to the robbery, movement that is not necessary to the robbery 

but incidental to the robbery, and movement incidental to the robbery. Quite simply, 

movement during the robbery either substantially increases the risk to the victim beyond 

that necessary to commit the robbery or it does not substantially increase the risk to the 

victim. (CALCRIM No. 1203; People v. Delgado, supra, 56 Cal.4th at p. 487.) This

clear distinction between robbery and kidnapping for robbery would have been muddled 

if the defense’s pinpoint instruction would have been given. Accordingly, the trial court 
18

properly refused the pinpoint instruction to give CALCRIM No. 1203 to instruct on 

kidnapping for robbery.

III

Varnado’s Challenge to the Admission of Evidence at his Retrial Regarding Shots 

Fired at Mangano

Varnado contends the trial court erred in admitting evidence from the first trial 

about shots fired at Mangano during Varnado’s retrial on the offenses committed against 

Gutierrez and Gribben. We reject the contention.

A.

Trial Court Ruling

During Varnado’s retrial, the prosecution relied on Evidence Code sections 452.5 

and 1101, subdivision (b), in moving to introduce evidence Varnado had been previously 

convicted of the attempted robbery of Mangano. The trial court exercised its discretion 

under Evidence Code section 352 to exclude evidence of defendant’s prior conviction. 

However, over the objection of defense counsel, the trial court allowed testimony 

Varnado had previously fired shots at Mangano as evidence of a common scheme or 

plan. 

B.

Admission of Evidence Showing Common Scheme or Plan

Under Evidence Code section 1101, subdivision (b), the trial court may admit 

“evidence that a person committed a crime, civil wrong, or other act when relevant to 

prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake or accident, or whether a defendant in a prosecution for an 

unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith 

believe that the victim consented) other than his or her disposition to commit such an 

act.” Thus, “ ‘[e]vidence of a common design or plan is admissible to establish that the 

defendant committed the act alleged. Unlike evidence used to prove intent, where the act 

is conceded or assumed, “[i]n proving design, the act is still undetermined. . . .” 
19

[Citation.]’ (People v. Ewoldt [(1994)] 7 Cal.4th at p. [394], fn. 2, italics in original.) To 

establish a common design or plan, the evidence must demonstrate not merely a 

similarity in the results, but ‘ “such a concurrence of common features that the various 

acts are naturally to be explained as caused by a general plan of which they are the 

individual manifestations.” [Citation.]’ (Id. at p. [393].)” (People v. Balcom (1994) 7 

Cal.4th 414, 423-424 (Balcom).) “Although an uncharged offense need not possess 

unusual or distinctive characteristics to be relevant to establish the existence of a common 

design or plan, the presence of unusual or distinctive shared characteristics may increase 

the probative value of such evidence for this purpose.” (Id. at p. 425.)

“Under Evidence Code section 352, the trial court enjoys broad discretion in 

assessing whether the probative value of particular evidence is outweighed by concerns 

of undue prejudice, confusion or consumption of time. (People v. Dyer (1988) 45 Cal.3d 

26, 73.) Where, as here, a discretionary power is statutorily vested in the trial court, its 

exercise of that discretion ‘must not be disturbed on appeal except on a showing that the 

court exercised its discretion in an arbitrary, capricious or patently absurd manner that 

resulted in a manifest miscarriage of justice. [Citations.]’ (People v. Jordan (1986) 42 

Cal.3d 308, 316.)” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

C.

Common Scheme to Commit Robberies

The crimes committed by Varnado against Gutierrez and Gribben and then against 

Mangano were separated by only a few hours. As the California Supreme Court has 

noted, a “close proximity in time of the uncharged offenses to the charged offenses 

increases the probative value of this evidence.” (Balcom, supra, 7 Cal.4th at p. 427.) 

Varnado and his accomplices robbed Gutierrez and Gribben using the same car to drive 

up to Mangano. In both instances, the robbers used handguns. 

The robberies and attempted robbery were part of the same crime escapade that 

focused on robbing isolated individuals late at night. As parts of the same crime spree, 
20

the trial court did not err in admitting evidence of the attempted robbery of Mangano 

during the trial on the robbery of Gutierrez and Gribben. Thus, we reject Varnado’s 

contention the evidence of Mangano’s attempted robbery was irrelevant and unduly 

prejudicial. The crimes were sufficiently related in time and manner of execution to 

render the evidence of the Mangano attempted robbery relevant and probative. (Evid. 

Code, § 1101, subd. (b).)

We also reject defendant’s assertion the Mangano attempted robbery provided 

unduly inflammatory evidence because “the perpetrators recklessly fired multiple shots at 

Mangano and his car even as it became clear they would be unable to stop him from 

fleeing.” The testimony regarding the shots fired was brief and not substantially more 

inflammatory than the threat to kill Gutierrez while a gun was pointed at his head, or 

Gribben’s emotional testimony about her belief she was going to die when the robbers 

made her get into the trunk. Evidence Code section 352 did not require exclusion of 

evidence regarding the Mangano attempted robbery. The Mangano attempted robbery 

was carried out with sufficiently similar reliance on firearms to prevent it from being 

more prejudicial than probative or more inflammatory than the testimony given by 

Gutierrez and Gribben. (People v. Ewoldt (1994) 7 Cal.4th 380, 403 [evidence of 

ongoing pattern warrants admission of uncharged misconduct evidence and is less likely 

to be unduly prejudicial as the similarity between the offenses increases].)

The trial court did not err in allowing evidence of the attempted robbery 

committed as part of the same crime spree as the Gutierrez and Gribben robberies for the 

limited purpose of showing a common scheme or plan. 

IV

Varnado’s Argument Regarding Sufficiency of the Evidence for Attempted Robbery

Varnado contends we must reverse his attempted robbery conviction because the 

evidence failed to prove he had an intent to rob Mangano or made any effort to rob him. 

In so arguing, Varnado concedes the evidence presented at trial showed he and his 
21

accomplices pulled their vehicle in front of Mangano’s car while it was parked on a rural 

road, and then fired shots at him as he sped away. This evidence, Varnado argues, fails 

to show he attempted to rob Mangano. Reviewing the record as a whole, we reject the 

argument.

A.

Standard of Review

As we explained in part I A., ante, when considering a challenge to the sufficiency 

of the evidence, “the court must review the whole record in the light most favorable to the 

judgment below to determine whether it discloses substantial evidence that is, evidence 

which is reasonable, credible, and of solid value such that a reasonable trier of fact could 

find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 

Cal.3d 557, 578, italics added.) 

B.

Attempted Robbery

On the charge of attempted robbery of Mangano, the People had the burden of 

proving “specific intent to commit robbery and a direct, ineffectual act (beyond mere 

preparation) toward its commission.” (People v. Medina (2007) 41 Cal.4th 685, 694.) 

Varnado contends the evidence failed to establish he had the intent to rob Mangano or he 

engaged in any overt act for the offense. We disagree.

As to the element of intent, Varnado concedes that “at least one or more of the 

occupants of the car had engaged in robberies of other victims.” Varnado thus refers to 

evidence that the occupants of the same car that drove up to Mangano had only a few 

hours earlier engaged in the robberies of Gutierrez and Gribben. Although Varnado’s 

first jury was unable to reach a verdict as to whether Varnado participated in the robbery 

of Gutierrez and Gribben, the evidence was sufficient for Garrett to be convicted of those 

robberies during the first trial. However, the evidence did show Varnado was riding in 
22

the same backseat with Garrett and in the same car as two other perpetrators of the 

robberies of Gutierrez and Gribben only several hours after those robberies. 

The evidence presented at Varnado’s first trial also showed he robbed Cheatham, 

Kilgore, Douglas, and Cordero only three days before the incident involving Mangano. 

The offenses committed against Cheatham, Kilgore, Douglas, and Cordero on November 

15, 2008, involved the robbers –- including Varnado –- driving up to the victims and 

threatening them at gunpoint in order to take their personal possessions. 

The evidence of the prior robberies of Cheatham, Kilgore, Douglas, and Cordero 

sufficed to support a conviction for attempted robbery of Mangano. The California 

Supreme Court has “long recognized ‘that if a person acts similarly in similar situations, 

he [or she] probably harbors the same intent in each instance’ ([People v.] Thompson

[(1980)] 27 Cal.3d [303,] 319; People v. Pendleton (1979) 25 Cal.3d 371, 376–378; 

People v. Schader (1969) 71 Cal.2d 761, 777; [People v.] Kelley [(1967)] 66 Cal.2d 232, 

242–243), and that such prior conduct may be relevant circumstantial evidence of the 

actor’s most recent intent. The inference to be drawn is not that the actor is disposed to 

commit such acts; instead, the inference to be drawn is that, in light of the first event, the 

actor, at the time of the second event, must have had the intent attributed to him [or her]

by the prosecution.” (People v. Robbins (1988) 45 Cal.3d 867, 879, superseded by 

statute on another ground as noted in People v. Jennings (1991) 53 Cal.3d 334, 387, 

fn. 13.)

The evidence at trial showed the same plan –- to drive up to victims and rob them 

at gunpoint –- was employed against Mangano. The only difference from the earlier 

robberies is Mangano was able to escape and the robbers discharged their weapons. 

However, these differences do not undermine the jury’s conclusion Varnado and his 

accomplices intended to rob Mangano. Moreover, the robbers’ pulling their car in front 

of Mangano’s and brandishing their weapons constituted overt acts toward a robbery that 
23

was ineffectual solely due to the victim’s ability to speed away. We conclude the 

evidence sufficed to show Varnado’s intent to rob Mangano.

V

Varnado’s Challenge to Identification Procedure 

Varnado argues the suggestive nature of single-photo identifications should have 

disallowed testimony by the detective who, two days after the robbery, showed Gutierrez 

a photo of Varnado. We disagree.

A.

Defendant’s Burden to Establish that Identification Procedures are Unduly Suggestive

A criminal conviction may not stand when based on identification of the 

perpetrator resulting from an unduly suggestive identification procedure. As the 

California Supreme Court has previously explained, “ ‘In order to determine whether the 

admission of identification evidence violates a defendant’s right to due process of law, 

we consider (1) whether the identification procedure was unduly suggestive and 

unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable 

under the totality of the circumstances, taking into account such factors as the opportunity 

of the witness to view the suspect at the time of the offense, the witness’s degree of 

attention at the time of the offense, the accuracy of his or her prior description of the 

suspect, the level of certainty demonstrated at the time of the identification, and the lapse 

of time between the offense and the identification . . . . [Citations.]’ ” (People v. 

Cunningham (2001) 25 Cal.4th 926, 989.)

“ ‘[D]efendant has the burden of showing that the identification procedure was 

unduly suggestive and unfair “as a demonstrable reality, not just speculation.” [Citation.] 

A due process violation occurs only if the identification procedure is “so impermissibly 

suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 

[Citation.]’ ‘We have held that an identification procedure is considered suggestive if it 

“caused defendant to ‘stand out’ from the others in a way that would suggest the witness 
24

should select him [or her].” [Citation.]’ (People v. Cook (2007) 40 Cal.4th 1334, 1355.) 

If the defendant fails to show that the identification procedures were unduly suggestive, 

we need not address any arguments regarding the identifications’ reliability under the 

totality of the circumstances. (People v. Cook, supra, 40 Cal.4th at p. 1355; People v. 

Cunningham, supra, 25 Cal.4th at p. 989.)” (People v. Johnson (2010) 183 Cal.App.4th 

253, 271-272.) We independently review “ ‘a trial court’s ruling that a pretrial 

identification procedure was not unduly suggestive.’ ” (People v. Avila (2009) 46 Cal.4th 

680, 698-699, quoting People v. Kennedy (2005) 36 Cal.4th 595, 609.)

B.

Detective Bearor’s Inquiry into the Offenses during his Meeting with Gutierrez

Detective Bearor testified he took the photos of Varnado, Garrett, Hicks, and 

Anderson as part of his regular routine because of “the importance of the person’s 

appearance at the time of their arrest.” Thus, Detective Bearor photographed Varnado as 

he appeared when Gutierrez identified him as one of the robbers only several hours after 

the robbery. 

On November 20, 2009, two days after the robbery, Detective Bearor called 

Gutierrez to come to the police station to retrieve his stolen property. When he met with 

Gutierrez, Detective Bearor asked about the robbers’ purpose in locking Gutierrez and 

Gribben into the trunk. Detective Bearor also asked whether Gutierrez remembered the 

suspects from the in-field show up, and Gutierrez replied affirmatively. Detective Bearor 

showed Gutierrez the photographs, and Gutierrez recognized the suspects. Upon seeing 

the photos, Gutierrez explained he recognized Hicks as standing near the robbers’ car; 

Anderson was wearing a red do-rag, Varnado was armed with a western-style handgun, 

and Garrett was standing near the rear bumper of Gutierrez’s car. 

The photograph shown by Detective Bearor reflected how Varnado looked at the 

time Gutierrez identified him. The photograph did not change Varnado’s appearance, 

such as by showing him dressed in jail-issued clothing, or in any other manner to suggest 
25

he was one of the robbers. Detective Bearor testified he showed the photographs of the 

suspects to ask about how the offenses were committed –- rather than about who 

committed the offenses. Moreover, there is no evidence Detective Bearor expressed any 

opinion about whether the suspects were actually the robbers. Under these 

circumstances, we conclude the detective’s use of Varnado’s post-arrest photo was not 

unduly suggestive.

VI

Garrett’s Challenge to Identification Procedures

Garrett also contends his convictions for robbery must be reversed because the 

police employed unduly suggestive procedures to allow the victims to identify him.5 We 

disagree.

Garrett asserts he was identified “by means of improper and overly suggestive 

identification procedures.” In support of his argument, Garrett describes the facts 

surrounding his identification by the victims and witnesses involved with the November 

15, 2008, robberies. Garrett also recounts his identification by Gutierrez and Gribben for 

his part in the November 18, 2008, robberies. This factual recitation is followed by a 

general discussion of the law as it relates to the constitutional prohibition on unduly 

suggestive identification procedures. 

With only one exception, Garrett does not explain why the facts of his 

identification meet the standards he describes only in generally applicable terms. His 

legal analysis contains only a single sentence that connects the circumstances of this case 

with the law. In that sentence, Garrett asserts: “ ‘Bolstering’ is what Deputy Bearor did 

when he had Gutierrez come down to the station and view the photographs which Bearor 

had taken of the suspects as they were shown to Gutierrez and the other victims at the 

showup.” By “bolstering,” Garrett refers to a practice that “involves the refreshment of 

 

5 Garrett does not challenge his conviction of attempted robbery of Mangano on 

this basis. 
26

the eyewitness’s memory prior to trial” so that a witness relies on the refreshed 

recollection rather than what he or she originally observed. We are not persuaded by 

Garrett’s argument about bolstering, and we reject the remainder of his contentions as 

forfeited.

As to the claim of bolstering, Garrett refers to the actions taken by Elk Grove 

Police Detective Mark Bearor. Detective Bearor photographed each of the robbery 

suspects after the in-field show up at the Elk Grove Police Department. Although 

Garrett’s argument cites a 1976 law review article generally decrying the vagaries of 

witness identifications, he cites no case requiring reversal of a criminal conviction on the 

basis of the “bolstering” he alleges to have occurred here. We find nothing inherently 

prejudicial about Detective Bearor’s procedure because, as we explained in part V B., 

ante, Detective Bearor did not show the photograph of Garrett to Gutierrez for 

identification purposes. Instead, Detective Bearor used the photos for purposes of 

inquiring about the details of the robberies. Consequently, we reiterate our conclusion 

Detective Bearor did not engage in an unduly suggestive identification procedure.

As to any remaining points of contention on the issue of the identification 

procedures employed, we deem them forfeited. As this court has previously noted, “To 

demonstrate error, appellant must present meaningful legal analysis supported by 

citations to authority and citations to facts in the record that support the claim of error.” 

(In re S.C. (2006) 138 Cal.App.4th 396, 408.) With the exception of his assertion about 

“bolstering,” Garrett has not attempted to explain how the circumstances of his 

identification violate the constitutional prohibitions he discusses only in generalities. In 

effect, Garrett leaves us to connect the dots to fill in the picture. We decline to formulate 

the analysis for Garrett and pass on the issue without further consideration.
27

VII

Garrett’s Claim his Miranda Rights were Violated

Garrett contends his convictions must be reversed because his custodial 

interrogation was coercive and violated his rights under the Fifth and Sixth Amendments. 

We reject the contention.

A.

Miranda Advisement

The following exchange occurred between Detective Strange and Garrett at the 

Elk Grove Police Department:6

“DET. STRANGE: What’s up Victor? I didn’t realize you still had these 

[handcuffs] behind your back. (Unintelligible) get that. Just so we’re all completely 

clear, you realize you’re in custody, right?

“V. GARRETT: Mm-hmm.

“DET. STRANGE: Okay. Um, at this point you’re under arrest for uh – for, uh –

attempted robbery –

“V. GARRETT: Mm-hmm.

“DET. STRANGE: Okay? And, uh, I talked to a couple of the other guys so it’s 

not a big deal. I mean, you guys did what you did, just kinda had a night of it, but uh –

but we just wanna put everything out on the table now and just make sure you can walk 

out of here kinda clean-slated –- make sure there’s nothing hanging over your head, 

okay?

“V. GARRETT: Alright.

“DET. STRANGE: So, um, you want water or anything?

“V. GARRETT: Mmm yeah.

 

6 We quote the transcript of the interview between Detective Strange and Garrett as 

reflected in an exhibit submitted to the jury. The interview was videotaped and in 

considering Garrett’s argument, we have viewed the videotape. 
28

“DET. STRANGE: I’ll grab one for you, okay? Just be a second. Be back in just 

a second here. Can you grab me a water?

“(BEGIN CLIP)

“DET. STRANGE: Okay. I gotta go through that before I can really talk to ya, 

um, so we can clean the –- clean the slate for tonight, so, um. Anything you say um –-

or, sorry. You have the right to remain silent. Anything you say can be used against you 

in court. You have the right to the presence of an attorney if you want before and during 

any questioning and if you can’t afford an attorney then one can be appointed to you free 

of charge.

“V. GARRETT: Mm-hmm.

“DET. STRANGE: Do you understand all of that?

“V. GARRETT: (Nods Head)

“DET. STRANGE: Okay. So, tonight obviously you guys got hemmed up.

“V. GARRETT: Yeah.

“DET. STRANGE: Kinda got caught red-handed. So, what I wanna do is try to 

clean the slate for the whole night.

“V. GARRETT: Mm-hmm.

“DET. STRANGE: Okay? So, um, what I’m gonna ask of you to do is go back 

for the beginning of the night when you guys all got in the car and just run me through 

the whole night? Okay? Because, just so you know –- and, let’s be honest, okay? Some 

cops try to play tricks and things like that. I’m not gonna do that, okay?

“V. GARRETT: Mm-hmm.

“DET. STRANGE: I’m gonna –- I’m gonna shut you down if I know you’re 

telling me a lie –

“V. GARRETT: Mm-hmm.

“DET. STRANGE: -- so I don’t even wanna deal with lies. I’m just gonna come 

at you straight. Obviously you’re going to jail –- or going to juvenile hall in your case. 
29

Obviously you’ve got some charges that are gonna be over your head and let’s be honest, 

they’re kind of significant at this point so I think the best thing we can do is just have you 

be honest through the whole thing because then at least it shows –- I –- in my eyes at 

least –- that hey, you know what? I was an idiot tonight. I’m sorry for what I did and I –

- I’m –- I’m ready to pay the consequence of what I have to do because that’s just how 

the world works.

“V. GARRETT: Mm-hmm.” 

B.

Waivers of Miranda Rights

In Miranda v. Arizona, the United States Supreme Court held that “when an 

individual is taken into custody or otherwise deprived of his [or her] freedom by the 

authorities in any significant way and is subjected to questioning, the privilege against 

self-incrimination is jeopardized. Procedural safeguards must be employed to protect the 

privilege and unless other fully effective means are adopted to notify the person of his [or 

her] right of silence and to assure that the exercise of the right will be scrupulously 

honored, the following measures are required. He [or she] must be warned prior to any 

questioning that he [or she] has the right to remain silent, that anything he [or she] says 

can be used against him [or her] in a court of law, that he [or she] has the right to the 

presence of an attorney, and that if he [or she] cannot afford an attorney one will be 

appointed for him [or her] prior to any questioning if he [or she] so desires. Opportunity 

to exercise these rights must be afforded to him [or her] throughout the interrogation. 

After such warnings have been given, and such opportunity afforded him [or her], the 

individual may knowingly and intelligently waive these rights and agree to answer 

questions or make a statement. But unless and until such warnings and waiver are 

demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation 

can be used against him [or her].” (Miranda v. Arizona, supra, 384 U.S. at pp. 478-479.) 

To this end, the Supreme Court cautioned that “a valid waiver will not be presumed 
30

simply from the silence of the accused after warnings are given or simply from the fact 

that a confession was in fact eventually obtained.” (Id. at p. 475.)

Nonetheless, a defendant need not expressly waive his or her Miranda rights in 

order to indicate a voluntary and uncoerced desire to answer questions posed by the 

police. The California Supreme Court has noted that “decisions of the United States 

Supreme Court and this court have held that such an express waiver is not required where 

a defendant’s actions make clear that a waiver is intended.” (People v. Whitson (1998) 

17 Cal.4th 229, 250.) “Where the prosecution shows that a Miranda warning was given 

and that it was understood by the accused, an accused’s uncoerced statement establishes 

an implied waiver of the right to remain silent.” (Berghuis v. Thompkins (2010) 560 U.S. 

370, 384 [130 S.Ct. at pp. 2259-2261].) “Any statement given freely and voluntarily 

without any compelling influences is, of course, admissible in evidence.” (Miranda v. 

Arizona, supra, 384 U.S. at p. 478.)

Of course, minors have the same rights under the Fifth and Sixth Amendments as 

do adults. (People v. Davis (1981) 29 Cal.3d 814, 823-825.) In People v. Davis, the 

California Supreme Court addressed the issue of custodial interrogation as it applied to a 

16-year-old male who was suspected of rape and murder. (Id. at pp. 819, 823.) The 

defendant in Davis argued his confession was involuntary even though he had been 

advised of his Miranda rights prior to custodial questioning. (Id. at p. 823.) The record 

showed he was interviewed at a police station after being informed of his Miranda rights. 

(Ibid.) The defendant indicated he waived those rights and answered questions for three 

hours before being arrested and placed in a holding cell. (Id. at p. 824.) The 

interviewing police officer came back and asked the defendant if he wished to have 

dinner. After replying yes, the officer asked if defendant had killed the victim. The 

defendant nodded affirmatively. (Ibid.) While acknowledging a “sensitivity to the youth 

and inexperience of defendant,” the Supreme Court held that “[a]lthough defendant was a 

minor, that fact alone does not establish that his confession was involuntary. (People v. 
31

Lara (1967) 67 Cal.2d 365, 378-379.) The evidence tended to show that he was fully 

aware of his rights, and was not frightened into submission by the officers’ behavior.” 

(Id. at p. 825.) Youth thus is one of the factors to be considered in determining whether 

the totality of the circumstances establishes coercive questioning in derogation of the 

Fifth and Sixth Amendments. (Id. at p. 824.)

“ ‘In considering a claim that a statement or confession is inadmissible because it 

was obtained in violation of a defendant’s rights under Miranda v. Arizona, supra, 384 

U.S. 436 [86 S.Ct. 1602], we accept the trial court’s resolution of disputed facts and 

inferences, and its evaluation of credibility, if supported by substantial evidence.’ ” 

(People v. Kelly (1990) 51 Cal.3d 931, 947.) Although we independently determine 

whether, from the undisputed facts and those properly found by the trial court, the 

challenged statements were illegally obtained (ibid.), we “ ‘give great weight to the 

considered conclusions’ of a lower court that has previously reviewed the same 

evidence.” (People v. Jennings (1988) 46 Cal.3d 963, 979, quoting Miller v. Fenton

(1985) 474 U.S. 104, 112 [106 S.Ct. 445, 450]; accord, People v. Kelly, supra, 51 Cal.3d 

at p. 947.) 

C.

Garrett Waived his Right to Remain Silent

Garrett argues he did not waive his Miranda rights expressly or tacitly. Although 

he acknowledges Detective Strange gave a Miranda advisement, he contends the 

detective “raced through” the recitation to ask questions so Garrett “could ‘walk out of 

here kinda clean-slated,’ with ‘nothing hanging over [his] head.’ ” Combined with his 

youth, the late hour of the questioning, and the custodial nature of the environment, 

Garrett asserts he was coerced into giving a confession. We are not persuaded.

As we have recounted, Detective Strange advised Garrett of his Miranda rights. 

Although Garrett asserts he did not waive his rights, the transcript and videotape show he 

nodded to affirm he understood his Miranda rights. 
32

Detective Strange began the interview by clearly stating, “Just so we’re all 

completely clear, you realize you’re in custody, right?” Garrett indicated he understood. 

Garrett did not indicate in any way that he was fearful, did not wish to speak with the 

detective, or even that he was uncomfortable. Detective Strange removed Garrett’s 

handcuffs and offered him a bottle of water. 

Not until the detective had given the Miranda advisement and told Garrett he was 

going to go to jail or juvenile hall anyway did Detective Strange begin to ask about the 

events of the evening that led to the arrest. Detective Strange did not attempt to elicit 

answers with the promise of leniency. Instead, he advised Garrett to simply “pay the 

consequence” of having been “an idiot” that evening. Thus, the record shows the 

detective indicated Garrett’s answers would have adverse consequences.

Garrett argues that “Detective Strange resorted to vague half-truths and half-lies 

by telling [him] the situation was ‘no big deal’ and that he was ‘obviously’ going to 

juvenile hall as the result of his actions.” Garrett’s argument takes Detective Strange’s 

statements out of context. The detective informed Garrett: “Obviously you’re going to 

jail –- or going to juvenile hall in your case. Obviously you’ve got some charges that are 

gonna be over your head and let’s be honest, they’re kind of significant at this point.” 

Detective Strange told Garrett he “[k]inda got caught red-handed.” Moreover, the 

detective indicated Garrett’s statement was not even necessary because he had “talked to 

a couple of the other guys so it’s not a big deal.” Contrary to Garrett’s assertion on 

appeal, the context of Detective Strange’s comment made clear it was “not a big deal” to 

add to the other statements given by Garrett’s co-conspirators. The detective did not state 

or imply Garrett’s situation or the evidence against him was “not a big deal.” Instead, 

Detective Strange several times expressed Garrett faced very serious charges after being 

caught “red-handed.” 

Detective Strange did not badger or yell at Garrett. And, the questioning was not 

protracted. Although the hour may have been late and the questions posed at the police 
33

station, we conclude these factors did not transform Detective Strange’s questioning into 

an exercise in coercion.

We also conclude Garrett’s youth did not render ineffective his waiver of his 

Miranda rights. In so concluding, we recognize “a child’s age properly informs the 

Miranda custody analysis.” (J.D.B. v. North Carolina (2011) ___ U.S. ___ [131 S.Ct. 

2394, 2399].) In J.D.B., the United States Supreme Court “observed that children 

‘generally are less mature and responsible than adults,’ [citation]; that they ‘often lack the 

experience, perspective, and judgment to recognize and avoid choices that could be 

detrimental to them,’ [citation]; that they ‘are more vulnerable or susceptible to . . . 

outside pressures’ than adults [citation]; and so on.” (Id. at p. __ [2403].) 

Garrett was 17 years and 2 months old at the time of his questioning. Thus, 

Garrett was only 10 months away from becoming an adult. Detective Strange was aware 

of Garrett’s age, as noted by his reference to juvenile hall. In this context, the transcript 

shows the detective amplified the Miranda advisement with clear and plain language 

explaining Garrett was going to juvenile hall or jail, was facing very serious charges, had 

been caught “red-handed,” and would suffer the consequences of his actions. The 

detective’s statements admonished Garrett in an age-appropriate manner and Garrett 

voluntarily chose to answer the questions posed to him. 

In view of the totality of the circumstances of Garrett’s questioning by Detective 

Strange, we conclude Garrett’s rights under the Fifth and Sixth Amendments were not 

violated.

VIII

Garrett’s Eighth Amendment Challenge to his Sentence

Garrett contends his sentence of 74 years and 4 months to life in prison for nonhomicide crimes committed as a minor constitutes cruel and unusual punishment under 
34

the Eighth Amendment.7 Prior to oral argument, we asked the parties for supplemental 

briefing to address the impact of the California Supreme Court’s decision in Caballero, 

supra, 55 Cal.4th 262. Garrett reiterated his contention that his sentence is 

unconstitutional, and the Attorney General conceded the point. At oral argument, the 

Attorney General withdrew her concession and requested the opportunity to further brief 

the matter in light of the recent passage of Senate Bill No. 260 (2013-2014 Reg. Sess.) 

Statutes 2013, chapter 312. (Senate Bill No. 260.) We granted all parties the opportunity 

to file supplemental letter briefs, which were filed by Garrett and the Attorney General. 

Having reviewed the supplemental briefs, we conclude Garrett’s sentence must be 

reversed and his matter be remanded for reconsideration in light of our Supreme Court’s 

guidance in Caballero even after the passage of Senate Bill No. 260 (2013-2014 Reg. 

Sess.).

A.

Life Sentences for Non-Homicide Crimes Committed by Minors

In Graham v. Florida (2010) 560 U.S. 48, 81 [130 S.Ct. 2011, 176 L.Ed.2d 825] 

(Graham), the United States Supreme Court announced that the “Constitution prohibits 

the imposition of a life without parole sentence on a juvenile offender who did not 

commit homicide. A State need not guarantee the offender eventual release, but if it 

imposes a sentence of life it must provide him or her with some realistic opportunity to 

obtain release before the end of that term.” (560 U.S. 43 at p. 81 [130 S.Ct. at p. 2034].) 

Two years later, in Miller v. Alabama (2012) ___ U.S. ___ [132 S.Ct. 2455] (Miller), the 

Supreme Court declared, “ ‘[j]ust as the chronological age of a minor is itself a relevant 

mitigating factor of great weight, so must the background and mental and emotional 

development of a youthful defendant be duly considered’ in assessing his [or her] 

 

7 Varnado does not raise an Eighth Amendment challenge to his sentence, 

presumably because his sentence of 31 years to life in prison allows him the possibility of 

parole when he will be approximately 48 years old. 
35

culpability.” (Id. at p. ___ [132 S.Ct. at p. 2467], quoting Eddings v. Oklahoma (1982) 

455 U.S. 104, 116, [102 S.Ct. 869].) The Miller court recognized it “imposed a 

categorical ban on the sentence’s use, in a way unprecedented for a term of 

imprisonment. See [Graham, supra,] 130 S.Ct., at 2046 (THOMAS, J., dissenting) (‘For 

the first time in its history, the Court declares an entire class of offenders immune from a 

noncapital sentence using the categorical approach it previously reserved for death 

penalty cases alone’).” (Miller, supra, at p. ___ [132 S.Ct. at pp. 2466-2467].) 

Following Graham and Miller, the California Supreme Court held a 110-year-tolife sentence imposed for three counts of attempted murder committed as a minor 

constituted cruel and unusual punishment. (Caballero, supra, 55 Cal.4th at p. 265.) As 

the Caballero court explained, “the Eighth Amendment requires the state to afford the 

juvenile offender a ‘meaningful opportunity to obtain release based on demonstrated 

maturity and rehabilitation,’ and that ‘[a] life without parole sentence improperly denies 

the juvenile offender a chance to demonstrate growth and maturity.’ (Graham, supra, 

560 U.S. at p. ___ [130 S.Ct. at pp. 2029–2030].) The court observed that a life without 

parole sentence is particularly harsh for a juvenile offender who ‘will on average serve 

more years and a greater percentage of his [or her] life in prison than an adult offender.’ 

(Id. at p. ___ [130 S.Ct. at p. 2028].) Graham likened a life without parole sentence for 

nonhomicide offenders to the death penalty itself, given their youth and the prospect that, 

as the years progress, juveniles can reform their deficiencies and become contributing 

members of society. (Ibid.)” (Caballero, supra, 55 Cal.4th at p. 266.)

In Caballero, the Attorney General argued the 110-year-to-life prison sentence for 

a minor did not violate the Eighth Amendment even though it was the “functional 

equivalent to a life without parole term” on grounds no individual component of the 

defendant’s sentence by itself amounted to a life sentence. (Caballero, supra, 55 Cal.4th 

at p. 271.) Our Supreme Court rejected the contention because “the purported distinction 

between a single sentence of life without parole and one of component parts adding up to 
36

110 years to life is unpersuasive.” (Id. at pp. 271-272.) Thus, the Caballero court 

reversed the sentence and instructed that “the sentencing court must consider all 

mitigating circumstances attendant in the juvenile’s crime and life, including but not 

limited to his or her chronological age at the time of the crime, whether the juvenile 

offender was a direct perpetrator or an aider and abettor, and his or her physical and 

mental development, so that it can impose a time when the juvenile offender will be able 

to seek parole from the parole board. The Board of Parole Hearings will then determine 

whether the juvenile offender must be released from prison ‘based on demonstrated 

maturity and rehabilitation.’ ” (Caballero, supra, 55 Cal.4th at pp. 268-269, quoting 

Graham, supra, 560 U.S. 43 at p. 74.)

B.

Garrett’s Sentence is the Functional Equivalent of a Life Sentence without Parole 

In sentencing Garrett, the trial court relied on the probation officer’s report. 

Although the probation officer’s report states Garrett was 17 at the time of the offenses, it 

does not consider his mental or emotional development either as it related to his 

culpability or the appropriate sentence for his crimes. The trial court stated that “it is, 

I think, a tragedy that someone as young as yourself . . . is involved in this situation.” 

However, the trial court did not take into account the factors of mental and emotional 

maturity articulated by the Graham and Miller courts in imposing its sentence on Garrett. 

At the time of his sentencing, Garrett was 19 years old. With approximately 2.5 

years of presentence custody credits, Garrett’s sentence would have made him eligible for 

parole at about 90 years of age. At the age of 90, Garrett will have little opportunity to 

become a contributing member of society.8 (Caballero, supra, 55 Cal.4th at p. 266.) 

This sentence constitutes the functional equivalent of a life-without-parole term. 

 

8 Even with the 15 percent “good time” credits provided by section 2933.1, Garrett 

will not become eligible for parole until after he turns 82 years of age. (See § 667.5, 
37

C.

Senate Bill No. 260 (2013-2014 Reg. Sess.) Does Not Cure the Constitutional Error in 

Sentencing

The Legislature responded to Miller, supra, __ U.S. __ [132 S.Ct. 2455] and 

Caballero, supra, 5 Cal. 4th 262 by passing Senate Bill No. 260 (2013-2014 Reg. Sess.), 

which became effective on January 1, 2014. The Legislature noted the bill “recognizes 

that youthfulness both lessens a juvenile’s moral culpability and enhances the prospect 

that, as a youth matures into an adult and neurological development occurs, these 

individuals can become contributing members of society.” (Sen. Bill No. 260, § 1 (2013-

2014 Reg. Sess.).) The Legislature declared, “[t]he purpose of this act is to establish a 

parole eligibility mechanism that provides a person serving a sentence for crimes that he 

or she committed as a juvenile the opportunity to obtain release when he or she has 

shown that he or she has been rehabilitated and gained maturity, in accordance with the 

decision of the California Supreme Court in [Caballero] and the decisions of the United 

States Supreme Court in [Graham], and [Miller]. It is the intent of the Legislature to 

create a process by which growth and maturity of youthful offenders can be assessed and 

a meaningful opportunity for release established.” (Sen. Bill No. 260, § 1 (2013-2014 

Reg. Sess.).) 

To effectuate the Legislature’s intent, Senate Bill No. 260 (2013-2014 Reg. Sess.)

added section 3051 to the Penal Code, which requires the Board of Parole Hearings to 

conduct youth offender parole hearings during the 15th, 20th, or 25th year of 

incarceration. (§ 3051, subd. (b).) A youthful offender whose sentence is a term of 25 

years to life or greater is “eligible for release on parole by the board during his or her 

25th year of incarceration at a youth offender parole hearing, unless previously released 

or entitled to an earlier parole consideration hearing pursuant to other statutory 

 

subd. (c)(9) [including robbery among violent felonies for which custody credits are 

limited under section 2933.1, subdivision (a)].) 
38

provisions.” (§ 3051, subd. (b)(3); Sen. Bill No. 260, § 4 (2013-2014 Reg. Sess.).) In 

conducting youth offender parole hearings under section 3051, the Board of Parole 

Hearings is required to “give great weight to the diminished culpability of juveniles as 

compared to adults, the hallmark features of youth, and any subsequent growth and 

increased maturity of the prisoner in accordance with relevant case law.” (§ 4801, 

subd. (c).) If the youthful offender is found suitable for parole by the Board of Parole 

Hearings, he or she must be released even if the full determinate term originally imposed 

has not yet be completed. (§ 3046, subd. (c).)

In light of Garrett’s newly enacted entitlement to a youth offender parole hearing 

during his 25th year of incarceration, the Attorney General argues Garrett’s sentence “is 

constitutional because he now has a realistic opportunity to obtain release from prison 

during his lifetime.” We conclude remand for resentencing is compelled by the Eighth 

Amendment.

In Caballero, the California Supreme Court concluded: “Although proper 

authorities may later determine that youths should remain incarcerated for their natural 

lives, the state may not deprive them at sentencing of a meaningful opportunity to 

demonstrate their rehabilitation and fitness to reenter society in the future. Under 

Graham’s nonhomicide ruling, the sentencing court must consider all mitigating 

circumstances attendant in the juvenile’s crime and life, including but not limited to his 

or her chronological age at the time of the crime, whether the juvenile offender was a 

direct perpetrator or an aider and abettor, and his or her physical and mental 

development, so that it can impose a time when the juvenile offender will be able to seek 

parole from the parole board.” (Caballero, supra, 55 Cal.4th at pp. 268-269, italics 

added.) 

Even though Senate Bill No. 260 (2013-2014 Reg. Sess.) provides what may be 

considered a “safety net” providing a juvenile offender the opportunity for a parole 

hearing during his or her lifetime, the new legislation does not substitute for the 
39

sentencing court’s consideration of all individual characteristics of the offender. In 

Miller, the United States Supreme Court held imposition of punishment for crimes 

committed as a juvenile constitutes a task “demanding individualized sentencing . . . .” 

(Miller, supra, ___ U.S. at p. ___ [132 S.Ct. at p. 2467].) After noting its earlier 

decisions requiring consideration of the mitigating and aggravating factors unique to each 

case of sentencing for crimes committed as a minor, the Miller court emphasized that, 

“[o]f special pertinence here, we insisted in these rulings that a sentencer have the ability 

to consider the ‘mitigating qualities of youth.’ ” (Id. at p. ___ [132 S.Ct. 2455, 2467], 

quoting Johnson v. Texas (1993) 509 U.S. 350, 367, italics added.) Consequently, Senate 

Bill No. 260 does not render Garrett’s claim moot. 

We are aware of a contrary conclusion reached in People v. Gonzalez (2014) 225 

Cal.App.4th 1296, 1311 (Gonzalez). Gonzalez involved a youthful offender who was 

sentenced to serve 50 years to life in prison. (Id. at p. 1302.) The Gonzalez court relied 

on Senate Bill No. 260 (2013-2014 Reg. Sess.) in rejecting the defendant’s argument his 

sentence constituted cruel and unusual punishment. (Id. at pp. 1300-1301.) The 

Gonzalez court concluded that “[Senate Bill No.] 260 . . . cured or rendered moot any 

error under Miller in the sentencing hearing Gonzalez received.” (Id. at p. 1312.) 

Gonzalez further concludes the “incarceration, although lengthy and under a mandatory 

sentence, does not implicate Miller’s per se ban on mandatory [life imprisonment without 

possibility of parole (LWOP)] terms for juveniles. He similarly falls outside Caballero’s

holding that de facto LWOP terms may be tantamount to an LWOP for constitutional 

purposes. Simply put, under the new legislation, Gonzalez does not face the prospect of 

[serving life in prison without the possibility of parole]. Therefore, Miller does not 

apply, and neither does Caballero’s recognition that a lengthy term of years may amount 

to an LWOP sentence.” (Gonzalez, at p. 1309.) 

We disagree with Gonzalez because the penalty selection that comports with 

Miller and Caballero must be undertaken in the first instance by the sentencing court. 
40

(Miller, supra, ___ U.S. ___ [132 S.Ct. at p. 2467]; Caballero, supra, 55 Cal.4th at 

p. 268-269.) Regardless of whether the new statutory scheme enacted by Senate Bill 

No. 260 (2013-2014 Reg. Sess.) may eventually convert a mandatory life sentence to one 

with possibility of parole, the United States and California Supreme Courts have clearly 

required the sentencing court to consider the factors of youth and maturity when selecting 

the initial punishment. The statutory promise to have a future parole board review an 

improperly considered sentence does not cure the constitutional error.

The possibility that Garrett will have a board of parole undertake an evaluation 25 

years after his sentencing is not a substitute for the trial court’s evaluation at sentencing. 

Although the trial court is not required to articulate the analysis of Miller, supra, ___ 

U.S. __ [132 S.Ct. 2455], Graham, supra, 560 U.S. 48, and Caballero, supra, 55 Cal.4th 

262 as it relates to every youthful offender, each youthful offender is entitled to a 

sentence that passes muster under the Eighth Amendment. Moreover, a properly imposed 

sentence by itself can prove instructive in indicating the trial court’s conclusions about 

the youthful offender’s level of development, culpability, and other relevant factors. 

When youthful offenders must ultimately show achievement of sufficient growth and 

maturity to secure release on parole, they will need to refer back to the circumstances that 

existed at the commission of the crimes and were apparent to the trial court at sentencing. 

(Caballero, supra, 55 Cal.4th at pp. 268-269.) Without a proper evaluation by the trial 

court, youthful offenders will be deprived of their constitutionally guaranteed evaluation 

at the time of their sentencing and again when attempting to meet their burden during the 

much later youth parole hearings. (Ibid.) Consequently, we adhere to the guidance of the 

United States and California Supreme Courts that the sentencing court must engage in the 

proper evaluation of the appropriate punishment for a youthful offender. (Miller, supra, 

___ U.S. ___ [132 S.Ct. at p. 2467]; Caballero, supra, 55 Cal.4th at p. 268-269.)

The question of whether remand for resentencing must be ordered in this case is 

additionally informed by the California Supreme Court’s recent examination of 
41

constitutionally deficient sentencing for youthful offenders in People v. Gutierrez (2014) 

58 Cal.4th 1354 (Gutierrez). Gutierrez involved consolidated cases in which two 

defendants, Gutierrez and Moffett, each separately committed special circumstance 

murder while 17 years old. (Id. at p. 1360.) The trial courts imposed LWOP sentences 

on each defendant under section 190.5, subdivision (b), which had been construed to 

create a presumption in favor of LWOP sentences for special circumstance murders 

committed by 16- and 17-year-old offenders. (Ibid.) In Gutierrez, the California 

Supreme Court harmonized section 190.5, subdivision (b), with Eighth Amendment 

protections by holding trial courts have discretion to sentence a youthful offender to serve

25 years to life or LWOP with no presumption in favor of the LWOP option. (Id. at 

pp. 1371-1379.) 

Because the defendants in Gutierrez had been sentenced under the prior, 

prevailing presumption in favor of LWOP, the Supreme Court held that resentencing was 

required. (58 Cal.4th at pp. 1361, 1379.) In so holding, the Gutierrez court rejected the 

Attorney General’s argument that the recent enactment of section 1170, subdivision 

(d)(2), “removes life without parole sentences for juvenile offenders from the ambit of 

Miller’s concerns because the statute provides a meaningful opportunity for such 

offenders to obtain release.” (Gutierrez, supra, 58 Cal.4th at p. 1386.) Section 1170 

allows a youthful offender to petition the court to recall the sentence after serving 15 

years. (Id. at p. 1384 [noting also that the youthful offender, if not initially successful, 

may petition again after 20 and 24 years have been served].) The Gutierrez court 

explained that the United States Supreme Court in “Graham spoke of providing juvenile 

offenders with a ‘meaningful opportunity to obtain release’ as a constitutionally required 

alternative to—not as an after-the-fact corrective for—‘making the judgment at the outset

that those offenders never will be fit to reenter society.’ (Graham, at p. 75 [130 S.Ct. at 

p. 2011], italics added.) Likewise, Miller’s ‘cf.’ citation to the ‘meaningful opportunity’ 

language in Graham occurred in the context of prohibiting ‘imposition of that harshest 
42

prison sentence’ on juveniles under a mandatory scheme. (Miller, at p. __ [132 S.Ct. at 

p. 2469].) Neither Miller nor Graham indicated that an opportunity to recall a sentence 

of life without parole 15 to 24 years into the future would somehow make more reliable 

or justifiable the imposition of that sentence and its underlying judgment of the 

offender’s incorrigibility ‘at the outset.’ (Graham, at p. 75 [130 S.Ct. at p. 2011].) [¶] 

Indeed, the high court in Graham explained that a juvenile offender’s subsequent failure 

to rehabilitate while serving a sentence of life without parole cannot retroactively justify 

imposition of the sentence in the first instance: ‘Even if the State’s judgment that 

Graham was incorrigible were later corroborated by prison misbehavior or failure to 

mature, the sentence was still disproportionate because that judgment was made at the 

outset.’ (Graham, supra, 560 U.S. at p. 73 [130 S.Ct. at p. 2011], italics added.) By the 

same logic, it is doubtful that the potential to recall a life without parole sentence based 

on a future demonstration of rehabilitation can make such a sentence any more valid 

when it was imposed. If anything, a decision to recall the sentence pursuant to section 

1170(d)(2) is a recognition that the initial judgment of incorrigibility underlying the 

imposition of life without parole turned out to be erroneous. Consistent with Graham, 

Miller repeatedly made clear that the sentencing authority must address this risk of error 

by considering how children are different and how those differences counsel against a 

sentence of life without parole ‘before imposing a particular penalty.’ (Miller, supra, 567 

U.S. at p. ___ [132 S.Ct. at p. 2471], italics added; see id. at pp. ___, [132 S.Ct. at 

pp. 2469, 2475].)” (Gutierrez, supra, at pp. 1386-1387.) In short, the California 

Supreme Court recognized a statutory promise of future correction of a presently 

unconstitutional sentence does not alleviate the need to remand for resentencing that 

comports with the Eighth Amendment.

Consequently, we reverse and remand “the case to the trial court with directions to 

resentence defendant to a term that does not violate his constitutional rights, that is, 

a sentence that, although undoubtedly lengthy, provides him with a ‘meaningful 
43

opportunity to obtain release based on demonstrated maturity and rehabilitation.’ 

(Graham, 560 U.S. at p. ___ [130 S.Ct. at p. 2030].)” (Caballero, supra, 55 Cal.4th at 

p. 273 [Werdegar, J., conc.].)

DISPOSITION

The judgment is affirmed as to Erion Demonta Varnado. We also affirm the 

convictions as to Victor Tyrone Garrett. However, we reverse the judgment as to Garrett 

and remand for resentencing consistent with People v. Caballero, supra, 55 Cal.4th 262.

 HOCH , J.

We concur:

 HULL , Acting P. J.

 ROBIE , J.