Filed 7/30/21 P. v. Ruiz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

IVAN ALEXIS RUIZ,

Defendant and Appellant.

F078436

(Super. Ct. No. BF172278A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, 

Judge.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Robert C. Nash and Sally 

Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

Defendant Ivan Alexis Ruiz was charged with the first degree murder of Michael 

Ballesteros (Pen. Code,1 §§ 187, subd. (a), 189, subd. (a)). The information further 

alleged that defendant intentionally killed the victim by means of lying in wait (§ 190.2, 

subd. (a)(15)); personally and intentionally discharged a firearm and caused the victim’s 

death (§ 12022.53, subd. (d)); and was 16 years of age or older at the time of the offense 

(Welf. & Inst. Code, § 707). Following trial, the jury found him guilty as charged and 

found true the special allegations alleged pursuant to sections 189, 190.2, subdivision 

(a)(15), and 12022.53, subdivision (d). Defendant was sentenced to life without the 

possibility of parole plus 25 years to life for the firearm enhancement. The abstract of 

judgment reflects that a $300 parole revocation fine (§ 1202.45) was imposed and 

suspended. 

On appeal, defendant makes numerous contentions. First, any inculpatory

statements that he made during custodial interrogation should have been excluded from 

evidence because he did not waive his Miranda2rights. Second, in view of People v. 

Franklin (2016) 63 Cal.4th 261 (Franklin), the case should be remanded to give him the 

opportunity to make a record of information relevant to a future youth offender parole 

hearing. In the alternative, he argues that his attorney rendered ineffective assistance by 

failing to request a Franklin proceeding. Third, in view of section 12022.53, 

subdivision (h), the case should be remanded to give the trial court the opportunity to 

decide whether to strike the firearm enhancement. In the alternative, defendant argues 

that his attorney rendered ineffective assistance by failing to ask the court to strike the 

enhancement. Finally, defendant asserts that the $300 parole revocation fine should be 

stricken because, although the abstract of judgment reflects such a fine, the court did not 

1 Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.

2 Miranda v. Arizona (1966) 384 U.S. 436.
3.

impose one and, if it had, his sentence precludes parole eligibility. The Attorney General 

agrees that this fine should be stricken. 

We conclude: defendant knowingly, intelligently, and voluntarily waived his 

Miranda rights; a Franklin remand is not required because defendant had an adequate 

opportunity to request a Franklin proceeding below but failed to do so; a remand for 

resentencing is unnecessary because the record does not affirmatively establish the trial 

court was unaware of its discretion to strike the firearm enhancement; and the parole 

revocation fine must be stricken. Additionally, we reject defendant’s claims of 

ineffective assistance of counsel.

STATEMENT OF FACTS3

I. The victim

On February 9, 2017, at or around 2:30 p.m., a farm laborer discovered 

Ballesteros’s body in an orange orchard on the east side of Bakersfield. At the crime 

scene, law enforcement found steel shot, two bullets, and two spent shell casings with the 

headstamp “Sig .40 S&W.” According to Detective Meyer, the lead detective, “it 

appeared as if someone was in a hurry trying to clean up the shell casings and wasn’t able 

to capture all of them and maybe got spooked off and then fled the scene.” 

An autopsy was performed on February 14, 2017. There were 10 gunshot wounds, 

seven of which were deemed lethal. Two in the forehead displayed “considerable tearing 

of the skin,” indicating that the gun barrel had been pressed against the entry sites at the 

moment of discharge. On the other hand, lethal wounds in the left nostril, left shoulder 

blade, right chest, upper back, and middle back showed “no signs of gunpowder stippling 

or soot” and little “tearing around the hole,” indicating that the associated bullets were 

fired more than 18 inches away. There were two “borderline lethal” “flesh wounds” in 

3 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their 

first names and last initials to protect personal privacy interests. No disrespect is 

intended.
4.

the buttocks and a “deep graze wound” in the right palm. The forensic pathologist 

concluded that the cause of death was “[m]ultiple gunshot wounds” and the manner of 

death was “medical homicide,” but he could not definitively establish the order in which 

the shots were fired. 

II. Johnny M.

Johnny lived with his girlfriend, his girlfriend’s mother, his girlfriend’s sister, and 

defendant at a residence in Bakersfield since February 2016. At some point thereafter, 

Johnny befriended Ballesteros. 

Starting in January 2017, Ballesteros stayed overnight at defendant and Johnny’s 

home nearly every day, and usually carried a backpack containing extra clothes and 

toiletries. One day, Ballesteros brought a gun to the house and showed it to defendant 

and Johnny. Defendant offered to buy it for $160. The next day, he gave Ballesteros a 

$60 deposit and promised to pay the remaining balance later. After Ballesteros left with 

the firearm, defendant informed Johnny that he was “gonna kill [Ballesteros]” because 

“he didn’t want to pay him the rest of the money.” Johnny thought that defendant was 

joking and called him “retarded” and “stupid.” 

On February 9, 2017, Johnny was at work when he received a message from 

Ballesteros to “go shoot the guns.” Johnny replied, “I’m at work, hold on.” After 

Johnny’s shift ended at or around 2:00 p.m., he went home and told defendant about 

Ballesteros’s message. Defendant responded, “Yeah, I’ll go.” Johnny’s girlfriend, who 

was also present, did not want Johnny to participate, so he did not go. Defendant 

retrieved ammunition from his room, loaded some magazines, and went to pick up 

Ballesteros. He left in Johnny’s girlfriend’s mother’s green Toyota Corolla. About “an 

hour and 30 minutes to two hours” later, defendant returned with Ballesteros’s backpack. 

Johnny asked, “Where’s Michael?” Defendant “laughed” and “said he killed him.” 

Johnny initially thought that defendant was joking, but he changed his mind when he saw 

a “breaking news alert” on television about “a dead body by the orchard fields.” Johnny 
5.

passed by defendant’s room and saw him putting a black .40-caliber Springfield XD 

subcompact pistol into a lockbox. Eventually, Johnny asked, “How did you do it?” 

Defendant said that he and Ballesteros were “target practicing” when “he told Mike to fix

the targets.” While Ballesteros was facing away from him, defendant “emptied the whole 

clip in him.” 

Approximately five days later, Johnny told defendant that he would “throw the 

gun away.” Although defendant “was angry,” Johnny took defendant’s lockbox 

containing the pistol and hid it in the trunk of the Corolla. After two days elapsed, 

Johnny drove to a friend’s house, contacted law enforcement, and handed over the 

lockbox. 

III. Bridgett S.

On February 9, 2017, Bridgett was at home with Ballesteros, her boyfriend. At or 

around 1:00 p.m., Ballesteros left. He had told Bridgett that “Johnny was picking him 

up” and he would “be back in a bit.” Roughly two hours later, Bridgett texted 

Ballesteros, but he did not respond. That night, she repeatedly texted and called him, but 

he still did not respond. The next morning, between 4:00 a.m. and 5:00 a.m., Bridgett 

sent a message to Johnny inquiring as to Ballesteros’s whereabouts, but Johnny did not 

respond. At or around 7:50 a.m., she visited defendant and Johnny’s residence. 

Defendant answered the door. Bridgett “asked him where Mike was.” Defendant, who 

was “[c]alm,” said he “didn’t know” and asked her if she “wanted to get Mike’s stuff.” 

Bridgett declined, stated that she “would be back later,” and went to school. After school 

ended, she made repeated attempts to contact Ballesteros, but to no avail. Bridgett 

returned to defendant and Johnny’s residence. This time, Johnny answered the door. 

Bridgett, who was “angry and frustrated,” questioned why Johnny “didn’t know where 

Mike was when he was the last one to pick him up” and demanded “all [of Ballesteros’s] 

stuff.” Johnny, who “seemed flustered and frustrated,” gave her Ballesteros’s backpack. 
6.

When Bridgett arrived at her home, she received a call from Ballesteros’s mother telling

her that Ballesteros was dead. 

Two days later, a vigil was held for Ballesteros. Bridgett recalled that Johnny 

attended, but defendant “wasn’t there” and she “was confused [as] to why he wasn’t.” 

IV. The pistol

Bridgett’s uncle owned the black .40-caliber Springfield XD subcompact pistol. 

He had reported that someone stole it. 

Ballistics analysis was performed on the pistol and the two shell casings found at 

the crime scene. A criminalist test-fired the pistol to generate “known exemplars.” 

Following a “microscopic comparison” between the exemplars and the recovered casings, 

the criminalist opined that the “two spent cartridge cases were fired by the submitted 

firearm.” 

DISCUSSION

I. Defendant knowingly, intelligently, and voluntarily waived his Miranda

rights.

a. Background

i. Custodial interrogation

Meyer and his partner Detective Garcia questioned defendant on February 21, 

2017.4 The following colloquy took place at the outset:

“DETECTIVE MEYER: Okay. I need to get some information, uh, from 

you real quick, but before I do, I’m gonna read 

some information to you, okay?

“[DEFENDANT]: Yes, sir.

“DETECTIVE MEYER: Are you ready?

“[DEFENDANT]: Yes.

4 The jury listened to an audio recording of the interrogation. 
7.

“DETECTIVE MEYER: Uh, you have the right to remain silent. You 

understand? I need you to say your answer.

“[DEFENDANT]: Uh, yes.

“DETECTIVE MEYER: Ye—yeah?

“[DEFENDANT]: Yes.

“DETECTIVE MEYER: Okay. Anything you say may be used against 

you in court. Do you understand?

“[DEFENDANT]: Yes, sir.

“DETECTIVE MEYER: You have the right to the presence of an 

attorney before and during any questioning. Do 

you understand?

“[DEFENDANT]: Yes, sir.

“DETECTIVE MEYER: If you cannot afford an attorney, one will be 

appointed to you free of charge before any 

questioning if you want. Do you understand?

“[DEFENDANT]: Yes, sir.” 

Defendant initially stated that he last saw Ballesteros leaving his and Johnny’s 

home sometime between 1:00 and 2:00 p.m. on February 9, 2017. He suggested that 

Ballesteros may have been killed by someone named Daniel after a “gun deal” “went 

wrong.” After Garcia remarked that the evidence “point[ed] in [defendant’s] direction,” 

defendant said that he gave Ballesteros a ride in the Corolla between 1:00 and 2:00 p.m. 

to an apartment complex near the intersection of Pioneer Drive and Fairfax Road to 

“ ‘handle business with’ ” Daniel. At the time, Ballesteros had a pair of firearms in his 

possession. After Garcia mentioned that there were tire tracks at the orange orchard that 

belonged to the Corolla, defendant explained that he drove Ballesteros to meet Daniel at a 

nearby park and then followed Daniel’s truck to the orchard. Daniel was accompanied by 

a second male. Ballesteros intended to sell the firearms for $400 and promised to give 

defendant $150 “for giving him a ride out there.” At the orchard, defendant stayed in the 
8.

car while Ballesteros conducted the transaction “far away.” Sometime later, he heard 

multiple gunshots. Defendant then drove towards someone wearing “a gray hoodie.” He 

could not tell whether this person was Daniel or Daniel’s companion. Defendant left the 

orchard and “didn’t tell nobody” because he “was scared.” He insisted that he did not kill 

Ballesteros. 

Meyer and Garcia questioned defendant again on February 22, 2017.5 The 

following colloquy took place at the outset:

“DETECTIVE MEYER: . . . [B]efore we talk to you again, I’ll read this 

information – that same thing – information I 

read to you last night, okay? Um, you have the 

right to remain silent, you understand?

“[DEFENDANT]: Yes, sir.

“DETECTIVE MEYER: Anything you say may be used against you in 

court, you understand?

“[DEFENDANT]: Yes, sir.

“DETECTIVE MEYER: You have the right to the presence of an 

attorney before and during any questioning, you 

understand?

“[DEFENDANT]: Yes, sir.

“DETECTIVE MEYER: If you cannot afford an attorney, one will be 

appointed to you free of charge before any 

questioning if you want. Do you understand?

“[DEFENDANT]: Yes, sir.” 

Meyer asked defendant if he was willing to take a polygraph test. Defendant 

answered, “Yeah.” Thereafter, the polygraph examiner entered the room. The following 

colloquy transpired:

5 The jury listened to an audio recording of the interrogation. 
9.

“[EXAMINER]: A couple things I wanna explain to you, okay? 

I cannot force you to take it. You have to 

volunteer to take it, all right? So you volunteer 

to take it?

“[DEFENDANT]: Uh, well, with the presence of an attorney just 

in case, like, then, but I – I know I’m gonna 

pass, sir, I just, you know, I just want an 

attorney just in case, like, I – I just – I know 

nothing happened. I – I just – but I just wanna 

have one, like, but I – I’m – I’m all for it for the 

polygraph, sir.

“DETECTIVE GARCIA: I’m – I’m gonna to tell you right now, once an 

attorney shows up, he’s not gonna let – let you 

take it.

“[EXAMINER]: Yeah.

“DETECTIVE GARCIA: I’m – I’m gonna tell you that right now.

“DETECTIVE MEYER: We – we typically don’t have attorneys inside 

the polygraph room. The only people that can 

be in the room – or the polygraph room would 

be, um, the examiner and then maybe myself or 

my partner, um, it – like I said, it’s totally 

voluntari – voluntary. If you wanna do it, 

you’re – you can do it. We can do it for you 

today, um, and then if you decide you don’t 

wanna do it, then you don’t have to do it.

“[DEFENDANT]: All right.

“DETECTIVE MEYER: It’s up to you. I mean, if you – if you tell us the 

truth, um, and you wanna give an examination, 

then it’s something we can offer you.

“[DEFENDANT]: Yeah.

“[EXAMINER]: So would you like to do it?

“[DEFENDANT]: Well, like I said, with the presence of an 

attorney.
10.

“[EXAMINER]: Okay. Like he explained to you, um, if you’re 

gonna – if you say you want an attorney, then I 

– then you can talk to an attorney. I am not 

gonna allow the attorney to be in the room with 

you.

“[DEFENDANT]: Yes, sir.

“[EXAMINER]: Do you understand that?

“[DEFENDANT]: Yeah.

“[EXAMINER]: So are you telling me you would like to talk to 

an attorney . . .

“[DEFENDANT]: I just wanna speak . . .

“[EXAMINER]: . . . first? Or . . .

“[DEFENDANT]: Yeah, I just wanna speak to an attorney, like, 

you know, I’ll, you know, just in case, like, 

anything, like, nothing’s gonna pop up, but, like 

. . . 

“DETECTIVE GARCIA: Well, an attorney’s not gonna stop what you 

gotta say.

“[DEFENDANT]: Yeah, I know.

“DETECTIVE GARCIA: Okay?

“[DEFENDANT]: Uh . . .

“DETECTIVE GARCIA: The only thing he’s gonna tell you is not to take 

the exam and that’s just from my experience 

from doing this for a while . . .

“[DEFENDANT]: Yes.

“DETECTIVE GARCIA: . . . okay? And just to let you know, once that 

happens, if you’re innocent and you say that 

nothing’s gonna come up on this test, we won’t 

know because you won’t take the test.

“[DEFENDANT]: Yeah.
11.

“DETECTIVE GARCIA: We’re not forcing you to, we’re telling you that 

this is gonna happen just from the experience 

that we’ve had with attorneys and 

(unintelligible).

“[DEFENDANT]: Yeah.

“[EXAMINER]: And if you didn’t do – if you take the test and 

you didn’t do it, we’re gonna know you didn’t 

do it. But at the same time, if you did it, we’re 

gonna know you did it.

“[DEFENDANT]: Yes, but I, you know, I didn’t do it, it’s just like 

I said . . . [¶] . . . [¶] . . . but I just want a 

presence of an attorney . . .

“DETECTIVE MEYER: Okay.

“[DEFENDANT]: . . . just to – just to be safe.

“DETECTIVE MEYER: So let me confirm this so we don’t – so we 

don’t take this interview any farther, okay? So 

I’m trying to confirm right now if – do you 

wanna talk to us about this case or do you want 

an attorney present before you talk to us to find 

out more information about the case, or . . .

“[DEFENDANT]: Yes, I’m just – I just wanna feel more 

comfortable, like, knowing, you know . . .

“DETECTIVE GARCIA: Oh, you . . .

“[DEFENDANT]: . . . with an attorney. Uh, if everything’s okay 

. . .

“DETECTIVE GARCIA: . . . but, here – here – I’m a little confused right 

here . . .

“[DEFENDANT]: Yeah.

“DETECTIVE GARCIA: . . . because you’re asking for an attorney to be 

present during the polygraph.

“[DEFENDANT]: No, I’m not. I just wanna speak to one, like, 

right now, like . . .
12.

“DETECTIVE GARCIA: Okay.

“[DEFENDANT]: . . . I just wanna . . .

“[EXAMINER]: You wanna speak to an attorney before you take 

a polygraph, is that what . . .

“[DEFENDANT]: Yes.

“[EXAMINER]: . . . you’re saying?

“[DEFENDANT]: Yeah, just wanna speak to, you know, an 

attorney.

“DETECTIVE GARCIA: Then you’re done, (Brad).

“[EXAMINER]: Okay.

“DETECTIVE MEYER: Yeah.

“DETECTIVE GARCIA: Yeah, (Brad)’s done.

“DETECTIVE MEYER: Okay. Okay. So . . .

“DETECTIVE GARCIA: All right.

“DETECTIVE MEYER: Thank you, buddy.” 

After the polygraph examiner left the room, the following colloquy transpired:

“DETECTIVE GARCIA: . . . We won’t do a polygraph after this. That 

was it, okay?

“[DEFENDANT]: Okay.

“DETECTIVE GARCIA: Now that you – now that he’s gone, are you still 

willing to talk to us further about this 

investigation?

“[DEFENDANT]: Yes, sir.

“DETECTIVE GARCIA: Okay.

“DETECTIVE MEYER: Okay. Um . . .

“[DEFENDANT]: Whatever you guys wanna know . . . .” 
13.

Defendant maintained that he drove Ballesteros to the orange orchard to meet 

Daniel and subsequently heard gunshots. He added that he was “really high” “off weed” 

at the time. The detectives noted that defendant had been “the last one with [Ballesteros] 

when he was killed” and in possession of the murder weapon, which was given to law 

enforcement by Johnny. Defendant then claimed that Ballesteros was actually shot by 

someone else—a “white smoker”—while test-firing the guns at the orchard. When the 

detectives accused defendant of lying and asked him why he shot Ballesteros, defendant 

eventually said, “It was an accident, man.” He specified that he was asked by Ballesteros 

to hang up a banner for target practice. Defendant complied. When he turned around, 

however, Ballesteros was pointing one of the guns at him. Defendant punched him and 

cried, “ ‘Dude, what the fuck?’ ” Ballesteros answered, “ ‘I’m gonna kill you bitch.’ ” 

He fired a shot, which missed, and defendant scrambled to find the other gun. Ballesteros 

fired a second shot, which again missed. When defendant retrieved the other gun, he shot 

Ballesteros multiple times “with [his] eyes closed.” Afterward, defendant “threw that 

gun in the car” and left. At home, he told Johnny what had happened. When Johnny 

advised him to “throw that shit away,” defendant replied, “ ‘Man, take it. I do not want 

it.’ ” 

ii. Hearing

Defense counsel filed a motion in limine to “exclude any reference to or evidence 

of defendant’s alleged statements” or, in the alternative, “conduct a hearing pursuant to 

the provisions of Evidence Code [section] 402 to evaluate the admissibility of any alleged 

statements.” (Boldface & some capitalization omitted.) The trial court granted the 

request for a hearing. At the hearing, Meyer testified that the first day of questioning

lasted approximately three hours while the second day lasted “a couple hours.” During 

questioning, defendant was not handcuffed and was offered water. Meyer was aware that 

defendant was two months short of 18 years of age back then. He acknowledged that he 

did not expressly ask defendant if he was willing to waive his Miranda rights. 
14.

After listening to additional arguments by the parties, the court took a brief recess 

to review the audio recordings and transcripts of the interrogation. Thereafter, the court 

pronounced:

“It appears to the Court, based on the transcripts, as well as the 

testimony that was received this morning, that the defendant was provided 

his Miranda rights or his Miranda advisal as required by Miranda vs. 

Arizona. [¶] . . . [¶]

“Express waivers, as counsel certainly is aware, are not required in 

order to find that the Miranda advisal was properly administered and the 

rights were knowingly, intelligently, and voluntarily waived; thereafter, 

participation in a conversation by way of an interrogation is valid.

“Implied waivers occur more often than not and for strategic 

purposes, at least in this Court’s view, and in this case, as it relates to the 

first interview, there was no express waiver of rights, but there was an 

implied waiver given the defendant’s engagement in that interrogation.

“For purposes of determining the knowingly, intelligently, and 

voluntarily waiving those Miranda rights, the Court has considered the 

totality of the circumstances, including the defendant’s juvenile age, as well 

as the surrounding circumstances, as testified to this morning. Those 

include not only the duration and time of that initial interview, but also the 

recollection that perhaps food might not have been provided, but water, if 

not provided, was certainly available to the defendant.

“It further appears that the defendant was escorted to the interview 

room on both occasions restrained, and those restraints were removed from 

the defendant so as to make him a bit more comfortable during that 

engagement.

“Considering the totality of the circumstances, it appears that the 

defendant, therefore, did intelligently, knowingly, and voluntarily waive his 

rights and thereafter participated in an approximate three-hour interview 

with law enforcement. [¶] . . . [¶]

“. . . [F]or the second interview the Miranda advisal was read again 

and the defendant responded affirmatively to understanding those rights, 

and shortly thereafter an implied waiver was obtained by the defendant’s 

participation in that interview.
15.

“For purposes of a Miranda advisal being rendered under the totality 

of the circumstances, the Court does find that even in the second interview 

the Miranda advisal was appropriately provided and the defendant 

knowingly, intelligently, and voluntarily waived his rights.

“The crux of the second interview, however, does stem when the 

defendant made utterances about an attorney being present during the 

polygraph examination.

“To a certain extent, as counsel is aware, polygraph examinations 

are not admissible in court, but can be utilized by law enforcement perhaps 

even as a ruse to get cooperation from the suspect interviewed, and in this 

particular case the Court doesn’t know if a polygraph examination actually 

would have occurred or would not have occurred, but it appears to have 

been a strategy that law enforcement implemented in an attempt to get 

further or additional information out of the defendant.

“Be that as it may, that is the circumstances under which the 

defendant’s request to have an attorney present or to speak to an attorney 

before taking that polygraph examination, and when it comes to an 

invocation of an individual’s right to have an attorney, that certainly would 

qualify as an invocation to have an attorney during or immediately before 

the polygraph examination is conducted.

“Once the polygraph examination – once the determination for the 

polygraph examination to not occur was done, there did leave an ambiguity 

about the defendant’s request for an attorney. [¶] . . . [¶]

“It does appear that when the defendant made the utterance about an 

attorney that his utterance in and of itself was ambiguous, that would 

require thereafter clarification by law enforcement to understand exactly 

what the defendant was requesting; specifically, whether the defendant 

wanted an attorney for all purposes or whether the defendant wanted an 

attorney for the limited purpose of the polygraph examination. That 

ambiguity did lead to clarifying questions by law enforcement, which was, 

in this Court’s view, fully explained [in the transcript]. [¶] . . . [¶]

“Once the polygraph examiner was released from the room, a 

clarifying question was asked by Detective Garcia, quote, now that he’s 

gone, are you still willing to talk to us further about this investigation, and 

the response was yes, sir, unquote.

“There was a further utterance by the defendant which states, quote, 

whatever you guys wanna know, . . . unquote . . . .
16.

“This was an appropriate time for law enforcement to clarify what 

the defendant was actually requesting, and it appears to the Court that the 

defendant’s request to speak to an attorney or have an attorney was a 

conditional request involving the polygraph examination that was offered 

voluntarily and it was not an unconditional request to stop or cease any 

further questions by way of an interrogation absent the polygraph 

examination.

“The Court has considered these issues under the totality of the 

circumstances, which likewise includes, for purposes of review, the 

defendant’s age as a juvenile. While juveniles do enjoy certain rights when 

it comes to Miranda advisals, the determination of whether an advisal is 

properly given and whether a waiver is obtained is identical to the 

individual being an adult versus a juvenile with certain factors that must be 

considered. Certainly age is one of them. Additionally, low IQ is another, 

as well as other factors that are substantially similar, and in this particular 

case the only factor that the Court has been offered is that the defendant 

was two months shy of his eighteenth birthday when this interrogation 

occurred.

“Nonetheless, the Court has considered his juvenile status. . . . [I]t 

appears to the Court, based on a review of those portions in the transcript 

and the evidence, that no course of tactics were taken by law enforcement 

to force the defendant to participate in these interviews, nor has there been 

any inclination that the defendant did not participate knowingly, 

voluntarily, or intelligently after waiving his Miranda rights.

“For those reasons, . . . the Court is going to allow the People to 

present these interviews with the defendant if they choose to do so in their 

case-in-chief.” 

b. Analysis

“ ‘Under the Fifth Amendment to the federal Constitution, as applied to the states 

through the Fourteenth Amendment, “[n]o person . . . shall be compelled in any criminal 

case to be a witness against himself . . . .” [Citation.] “In order to combat [the] pressures 

[of custodial interrogation] and to permit a full opportunity to exercise the privilege 

against self-incrimination, the accused must be adequately and effectively apprised of his 

rights” to remain silent and to have the assistance of counsel. [Citation.] “[I]f the 

accused indicates in any manner that he wishes to remain silent or to consult an attorney, 
17.

interrogation must cease, and any statement obtained from him during interrogation 

thereafter may not be admitted against him at his trial” [citation], at least during the 

prosecution’s case-in-chief [citations].’ [Citation.] ‘Critically, however, a suspect can 

waive these rights.’ [Citation.] To establish a valid waiver of Miranda rights, the 

prosecution must show by a preponderance of the evidence that the waiver was knowing, 

intelligent, and voluntary. [Citations.]” (People v. Nelson (2012) 53 Cal.4th 367, 374-

375 (Nelson); see People v. Lewis (2001) 26 Cal.4th 334, 383 [“A minor has a Fifth 

Amendment privilege against self-incrimination, which precludes admission of a minor’s 

confession obtained without the minor’s voluntary, intelligent, and knowledgeable waiver 

of his or her constitutional rights.”].)

“The test for validity is as follows. ‘First, the relinquishment of the right must 

have been voluntary in the sense that it was the product of a free and deliberate choice 

rather than intimidation, coercion, or deception. Second, the waiver must have been 

made with a full awareness of both the nature of the right being abandoned and the 

consequences of the decision to abandon it. Only if the “totality of the circumstances 

surrounding the interrogation” reveals both an uncoerced choice and the requisite level of 

comprehension may a court properly conclude that the Miranda rights have been 

waived.’ [Citation.]” (People v. Molano (2019) 7 Cal.5th 620, 648 (Molano); see People 

v. Cruz (2008) 44 Cal.4th 636, 667 [“A valid waiver need not be of predetermined form, 

but instead must reflect that the suspect in fact knowingly and voluntarily waived the 

rights delineated in the Miranda decision.”].)

“Determining the validity of a Miranda rights waiver requires ‘an evaluation of 

the defendant’s state of mind’ [citation] and ‘inquiry into all the circumstances 

surrounding the interrogation’ [citation]. When a juvenile’s waiver is at issue, 

consideration must be given to factors such as ‘the juvenile’s age, experience, education, 

background, and intelligence, and . . . whether he has the capacity to understand the 

warnings given him, the nature of his Fifth Amendment rights, and the consequences of 
18.

waiving those rights.’ [Citations.]” (Nelson, supra, 53 Cal.4th at p. 375.) “[E]ven when 

a juvenile has made a valid waiver of the Miranda rights, a court may consider whether 

the juvenile gave a confession after being ‘ “exposed to any form of coercion, threats, or 

promises of any kind, [or] trickery or intimidation . . . .” ’ [Citation.]” (Id. at p. 379, fn. 

omitted.)

“ ‘On appeal, we conduct an independent review of the trial court’s legal 

determination and rely upon the trial court’s findings on disputed facts if supported by 

substantial evidence.’ [Citation.] The facts surrounding an admission or confession are 

undisputed to the extent the interview is tape-recorded, making the issue subject to our 

independent review. [Citation.]” (People v. Linton (2013) 56 Cal.4th 1146, 1176-1177 

(Linton).)

Here, at the outset of the interrogation on February 21, 2017, Meyer advised 

defendant of his Miranda rights. Defendant confirmed that he understood his rights. 

Although he was not formally asked to waive them, “[i]t is well settled that law 

enforcement officers are not required to obtain an express waiver of a suspect’s Miranda

rights prior to a custodial interview and that a valid waiver of such rights may be implied 

from the defendant’s words and actions.” (People v. Parker (2017) 2 Cal.5th 1184, 1216

(Parker).) The record establishes that defendant “proceeded to actively participate in the 

conversation with the detectives . . . .” (Ibid.) “While defendant did not expressly waive 

his Miranda rights, he did so implicitly by willingly answering questions after 

acknowledging that he understood those rights.” (People v. Lessie (2010) 47 Cal.4th 

1152, 1169 (Lessie); accord, Nelson, supra, 53 Cal.4th at p. 375; see People v. Cruz, 

supra, 44 Cal.4th at p. 667 [“A suspect’s expressed willingness to answer questions after 

acknowledging an understanding of his or her Miranda rights has itself been held 

sufficient to constitute an implied waiver of such rights.”].) In addition, “[t]here is no 

suggestion the detectives resorted to physical or psychological pressure to coerce 

defendant to talk to them.” (Parker, supra, at p. 1216.)
19.

Likewise, at the outset of the interrogation on February 22, 2017, defendant was 

advised of his Miranda rights, confirmed that he understood his rights, and implicitly 

waived them by freely conversing with the detectives. (See Lessie, supra, 47 Cal.4th at 

p. 1169.) He initially appeared to consent to a polygraph test. When the examiner 

entered the room and asked whether this consent was voluntary, defendant expressed that 

he wanted to speak to an attorney beforehand. Subsequently, the examiner was 

dismissed. Garcia then asked, “[N]ow that [the examiner]’s gone, are you still willing to 

talk to us further about this investigation?” Defendant unequivocally answered, “Yes,

sir.” He added, “Whatever you guys wanna know . . . .” 

“If, postwaiver, a defendant requests counsel, the officers must cease further 

questioning until a lawyer has been made available or the defendant reinitiates.” (People 

v. Shamblin (2015) 236 Cal.App.4th 1, 19; accord, Molano, supra, 7 Cal.5th at p. 654.) 

“ ‘An accused “initiates” ’ further communication, when his words or conduct ‘can be 

“fairly said to represent a desire” on his part “to open up a more generalized discussion 

relating directly or indirectly to the investigation.” ’ [Citations.]” (Molano, supra, at 

p. 656.) 

While defendant invoked the right to counsel before the polygraph test could be 

administered, once it became clear that the test would not be administered, defendant 

clarified that he still wanted to talk about the criminal investigation. (See Nelson, supra, 

53 Cal.4th at p. 382 [“Where . . . the suspect makes a conditional invocation of counsel 

limited to the administration of a polygraph test, officers need not terminate the entire 

interrogation.”].) Again, “[t]here is no suggestion the detectives resorted to physical or 

psychological pressure to coerce defendant to talk to them.” (Parker, supra, 2 Cal.5th at 

p. 1216.)

On appeal, defendant contends that “age, immaturity, lack of any proof of contact 

with the criminal justice system, and minimal education weighed strongly against finding 

an implied waiver and the voluntariness of his statements . . . .” He emphasizes that he 
20.

“was 17 years old at the time of the interrogation,” “had minimal education, completing 

tenth grade without graduating from high school,” “had no skills,” and “worked doing 

field labor.” He alleges that “there is no evidence of any sustained juvenile petitions.” 

In our view, defendant’s age, purported immaturity, education level, and history as 

a manual laborer did not automatically invalidate the Miranda waiver. (See Lessie, 

supra, 47 Cal.4th at p. 1169; People v. Lewis (2001) 26 Cal.4th 334, 384; In re Brian W.

(1981) 125 Cal.App.3d 590, 602-603; In re Norman H. (1976) 64 Cal.App.3d 997, 1002.) 

Even assuming, arguendo, that defendant had no prior experience with the criminal 

justice system, a lack of criminal history is but one factor to consider. Over the course of 

the questioning, defendant comprehended the detectives’ questions and answered 

coherently, many times in great detail. On several occasions, when the detectives noted 

inconsistencies in his accounts (see People v. Enraca (2012) 53 Cal.4th 735, 755), 

defendant “was keen enough to change his story . . . .” (People v. Lewis, supra, 26 

Cal.4th at p. 384.) Defendant did not exhibit any signs of confusion or other mental 

problems. On the second day of questioning, defendant conditionally invoked his right to 

counsel and then reinitiated communication. He was questioned for approximately three 

hours on the first day and “a couple hours” on the second day, which “hardly reflect the 

kind of continuous, prolonged interrogation that has been found to render a resulting 

confession involuntary.” (Linton, supra, 56 Cal.4th at p. 1178.) He was also uncuffed 

and offered water. (See People v. Thomas (2012) 211 Cal.App.4th 987, 1011 [removal of 

handcuffs and offer of water militated against finding that the defendant’s will was 

overborne].) “There is no indication here of coercive tactics by the individuals 

interviewing defendant, including any evidence that they exploited any personal 

characteristics of defendant in order to obtain his admissions and confession.” (Linton, 

supra, at p. 1179.)

In view of the totality of the circumstances, we conclude defendant knowingly, 

intelligently, and voluntarily waived his Miranda rights.
21.

II. A Franklin remand is not required because defendant had an adequate 

opportunity to request a Franklin proceeding below but failed to do so.

Generally, a person who was sentenced to a lengthy prison term for an offense 

committed when he or she was age 25 or younger is entitled to a youth offender parole 

hearing. (See § 3051; Franklin, supra, 63 Cal.4th at pp. 277-278.) When assessing a 

prisoner’s suitability for parole, the parole board 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 . . . .” (§ 4801, 

subd. (c); see § 3051, subd. (f)(1).) 

In Franklin, the California Supreme Court reasoned that sections 3051 and 4801

“contemplate that information regarding the juvenile offender’s characteristics and 

circumstances at the time of the offense will be available at a youth offender parole 

hearing to facilitate the [parole board]’s consideration. . . . Assembling . . . statements 

‘about the individual before the crime’ is typically a task more easily done at or near the 

time of the juvenile’s offense rather than decades later . . . .” (Franklin, supra, 63 Cal.4th 

at pp. 283-284.) The state high court concluded that Franklin, who was 16 years old 

when he committed murder and was sentenced before the enactment of these statutes (see 

id. at p. 268), may not have had an adequate opportunity at sentencing “to make a record

of mitigating evidence tied to his youth” (id. at p. 269). Accordingly, it remanded the 

matter for a limited purpose: to permit the trial court to determine “whether Franklin was 

afforded sufficient opportunity to make a record of information relevant to his eventual 

youth offender parole hearing.” (Id. at p. 284.) If Franklin did not have this opportunity, 

the trial court was empowered to receive pertinent evidence and information from both 

parties, with “[t]he goal of any such proceeding [being] to provide an opportunity for the 

parties to make an accurate record of the juvenile offender’s characteristics and 

circumstances at the time of the offense so that the [parole board], years later, may 

properly discharge its obligation to ‘give great weight to’ youth-related factors [citation] 
22.

in determining whether the offender is ‘fit to rejoin society’ despite having committed a 

serious crime ‘while he was a child in the eyes of the law’ [citation].” (Ibid.) 

On appeal, defendant contends that he is entitled to the same relief that our 

Supreme Court granted in Franklin because his attorney “did not place on the record all 

the mitigating evidence that could be relevant at [his] eventual youth offender parole 

hearing,” e.g., “[his] level of maturity, cognitive ability, or other youth-related factors.” 

We disagree. 

“Section 3051 was amended effective January 1, 2016, to require youth offender 

parole hearings for offenders who were 25 years old or younger at the time of the 

controlling offense. [Citation.] The Supreme Court decided Franklin in May 2016.” 

(People v. Medrano (2019) 40 Cal.App.5th 961, 967 (Medrano).) Defendant, who was 

17 years of age at the time of the murder, was sentenced on November 6, 2018, nearly 

three years after Franklin was handed down. “[U]nlike the defendant in Franklin, 

defendant had both the opportunity and incentive to put information on the record related 

to a future youth offender parole hearing.” (People v. Woods (2018) 19 Cal.App.5th 

1080, 1088-1089, italics added.) “The record does not indicate that [his] opportunity to 

[request a Franklin proceeding] was inadequate in any respect. Rather, it appears that he 

merely failed—whether by choice or by inadvertence—to exercise it.” (Medrano, supra, 

at p. 967.) Therefore, “there is no basis for a Franklin remand here.” (People v. Woods, 

supra, at p. 1089.)6 

Alternatively, defendant contends that his attorney rendered ineffective assistance 

of counsel by failing to request a Franklin proceeding below. “In order to establish a 

claim for ineffective assistance of counsel, a defendant must show that his or her 

6 Defendant cites People v. Tran (2018) 20 Cal.App.5th 561, which is inapposite. 

In that case, the offender had been sentenced before Franklin was decided (see id. at 

p. 568) and “did not have the benefit of that decision at the time of his sentencing” (id. at 

p. 570).
23.

counsel’s performance was deficient and that the defendant suffered prejudice as a result 

of such deficient performance.” (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel), 

citing Strickland v. Washington (1984) 466 U.S. 668, 687-692.) “To demonstrate 

deficient performance, defendant bears the burden of showing that counsel’s performance 

‘ “ ‘ “fell below an objective standard of reasonableness . . . under prevailing 

professional norms.” ’ ” ’ [Citation.] To demonstrate prejudice, defendant bears the 

burden of showing a reasonable probability that, but for counsel’s deficient performance, 

the outcome of the proceeding would have been different. [Citations.]” (Mickel, supra, 

at p. 198.)

“[C]ertain practical constraints make it more difficult to address ineffective 

assistance claims on direct appeal rather than in the context of a habeas corpus 

proceeding.” (Mickel, supra, 2 Cal.5th at p. 198.) “The record on appeal may not 

explain why counsel chose to act as he or she did. Under those circumstances, a 

reviewing court has no basis on which to determine whether counsel had a legitimate 

reason for making a particular decision, or whether counsel’s actions or failure to take 

certain actions were objectively unreasonable.” (Ibid.) “Moreover, we begin with the 

presumption that counsel’s actions fall within the broad range of reasonableness, and 

afford ‘great deference to counsel’s tactical decisions.’ [Citation.] Accordingly, [the 

California Supreme Court] ha[s] characterized defendant’s burden as ‘difficult to carry on 

direct appeal,’ as a reviewing court will reverse a conviction based on ineffective 

assistance of counsel on direct appeal only if there is affirmative evidence that counsel 

had ‘ “ ‘no rational tactical purpose’ ” ’ for an action or omission. [Citation.]” (Ibid.)

The record before us does not reveal why defense counsel did not request a 

Franklin proceeding. Absent any affirmative evidence that there was no rational tactical 

purpose for counsel’s forbearance, “it would be inappropriate for us to address 

defendant’s ineffectiveness claim on direct appeal.” (Mickel, supra, 2 Cal.5th at p. 200.) 

While defendant maintains that “[t]here can be no tactical basis for counsel’s failure to 
24.

request a Franklin hearing,” there could have been a legitimate reason. As our Supreme 

Court has observed, some offenders may choose “to forgo a Franklin proceeding 

altogether” since “[d]elving into the past is not always beneficial to a defendant.” (In re 

Cook (2019) 7 Cal.5th 439, 459.) 

Furthermore, although we find no basis for a Franklin remand, defendant is not 

foreclosed from seeking a Franklin proceeding. Our Supreme Court has held that a 

youthful offender whose conviction and sentence are final may file a motion under 

section 1203.01 to make a record of youth-related mitigating evidence. (In re Cook, 

supra, 7 Cal.5th at pp. 446-447; accord, Medrano, supra, 40 Cal.App.5th at p. 968.) 

Because defendant can still pursue a Franklin proceeding, he would not be able to 

demonstrate prejudice arising from his attorney’s purported deficient performance. 

III. A remand for resentencing is unnecessary because the record does not 

affirmatively establish that the trial court was unaware of its discretion 

to strike the firearm discharge enhancement.

“[A]ny person who, in the commission of a [murder], personally and intentionally 

discharges a firearm and proximately causes great bodily injury . . . or death, to any 

person other than an accomplice, shall be punished by an additional and consecutive term 

of imprisonment in the state prison for 25 years to life.” (§ 12022.53, subd. (d).) As of 

January 1, 2018, subdivision (h) of section 12022.53 provides:

“The court may, in the interest of justice pursuant to [s]ection 1385 and at 

the time of sentencing, strike or dismiss an enhancement otherwise required 

to be imposed by this section. The authority provided by this subdivision 

applies to any resentencing that may occur pursuant to any other law.” 

(Stats. 2017, ch. 682, § 2.)

On appeal, defendant contends that “the trial court did not give any consideration 

to [section 12022.53, subdivision (h)].” The record shows that he was sentenced on 

November 6, 2018, over 10 months after the amended section 12022.53, subdivision (h) 

became effective. “[I]n light of the presumption on a silent record that the trial court is 

aware of the applicable law, including statutory discretion at sentencing, we cannot 
25.

presume error where the record does not establish on its face that the trial court 

misunderstood the scope of that discretion.” (People v. Gutierrez (2009) 174 

Cal.App.4th 515, 527.) Since defendant does not cite anything in the record showing 

otherwise, we reject his claim of error.

Alternatively, defendant contends that his attorney rendered ineffective assistance 

of counsel by failing to ask the court to strike the firearm enhancement. As we discussed, 

“certain practical constraints make it more difficult to address ineffective assistance 

claims on direct appeal rather than in the context of a habeas corpus proceeding” (Mickel, 

supra, 2 Cal.5th at p. 198) since “a reviewing court will reverse a conviction based on 

ineffective assistance of counsel on direct appeal only if there is affirmative evidence that 

counsel had ‘ “ ‘no rational tactical purpose’ ” ’ for an action or omission” (ibid.). The 

record before us does not reveal why defense counsel did not make the request. Absent 

any affirmative evidence that there was no rational tactical purpose for counsel’s 

forbearance, “it would be inappropriate for us to address defendant’s ineffectiveness 

claim on direct appeal.” (Id. at p. 200.)

Defendant maintains that “[t]here can be no tactical basis for counsel’s failure to 

request . . . the court to exercise its discretion to consider striking a 25 year to life 

sentence on a criminal defendant who committed an offense at 17 years of age and was 

already looking at a sentence of life without the possibility of parole.” We disagree. At 

the sentencing hearing, the court—which acknowledged defendant’s “youthfulness” as a 

potential circumstance in mitigation—nevertheless remarked that life without parole was 

“the appropriate sentence” in view of the “plethora of [aggravating] circumstances”: 

(1) the crime “certainly involved great violence” “above and beyond what would 

otherwise result in murder, by way of the numerous shots that were fired and impacted on 

[the victim]”; (2) defendant used a firearm during the commission of the crime; (3) the 

victim “was placed in a position of vulnerability”; (4) “[t]he manner in which th[e] crime 

was carried out certainly did indicate and pose a level of sophistication and planning 
26.

beyond what is necessary to commit an otherwise murder”; and (5) defendant “took 

advantage of a position of trust” “when committing this crime under the guise that 

[defendant and the victim] were merely going target shooting.” It is at least plausible that 

defense counsel could have concluded that a request to strike the firearm enhancement 

would have been fruitless. (See People v. Price (1991) 1 Cal.4th 324, 387 [“Counsel 

does not render ineffective assistance by failing to make motions or objections that 

counsel reasonably determines would be futile.”], superseded by statute on other grounds 

as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) 

IV. The $300 parole revocation fine must be stricken.

“In every case where a person is convicted of a crime and his or her sentence 

includes a period of parole, the court shall, at the time of imposing the restitution fine 

pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation 

restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 

1202.4.” (§ 1202.45, subd. (a).) “A parole revocation fine may not be imposed for a 

term of life in prison without possibility of parole, as the statute is expressly inapplicable 

where there is no period of parole.” (People v. Jenkins (2006) 140 Cal.App.4th 805, 

819.) Additionally, when there is a discrepancy between the oral pronouncement of 

judgment and the abstract of judgment, the oral pronouncement controls. (People v. 

Zackery (2007) 147 Cal.App.4th 380, 385.)

On appeal, defendant correctly points out that the court did not impose a $300 

parole revocation fine; nevertheless, one is reflected in his abstract of judgment. He also 

correctly notes that such a fine may not be imposed when the sentence precludes parole. 

We will strike the parole revocation fine and order correction of the abstract of judgment. 

DISPOSITION

The parole revocation restitution fine imposed pursuant to section 1202.45 is

stricken. The trial court is directed to prepare an amended abstract of judgment deleting 

that fine and send a certified copy thereof to the appropriate authorities. In all other 
27.

respects, the judgment is affirmed without prejudice to defendant’s filing a motion for a 

Franklin proceeding under the authority of section 1203.01 and In re Cook, supra, 7 

Cal.5th 439. 

DETJEN, Acting P.J.

WE CONCUR:

FRANSON, J.

SMITH, J.