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Filed 5/20/16 P. v. Linares CA3

NOT TO BE PUBLISHED

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTONIO MONTES LINARES,

Defendant and Appellant.

C071356

(Super. Ct. No. CM033710)

A jury convicted defendant Antonio Montes Linares of first degree murder and 

found that he personally and intentionally discharged a firearm which proximately caused 

great bodily injury and death to Jose Sanchez. Defendant was 19 years old at the time 

of the murder. The trial court sentenced defendant to an aggregate of 50 years to life 

in prison. 

Defendant now contends (1) the trial court erred in admitting a witness’s pretrial

statements under the prior consistent statement exception to the hearsay rule; (2) the trial 

court failed to inquire whether defendant’s trial counsel had a conflict of interest in 

continuing to represent defendant on his new trial motion; and (3) defendant’s sentence 

violates the principles articulated in Miller v. Alabama (2012) 567 U.S. __ [183 L.Ed.2d 

407] (Miller), even though he was over the age of 18 when he killed Sanchez. 
2

We asked the parties to submit supplemental briefs on whether defendant forfeited 

his first appellate claim. We conclude (1) defendant forfeited his first appellate 

contention because he did not assert that basis for objection in the trial court; (2) under 

the circumstances before it, the trial court had no duty to inquire further regarding a 

possible conflict of interest; and (3) Miller does not require remand.

We will affirm the judgment.

BACKGROUND

Nine-year-old Alexandria H. was playing outside, by the front window of her 

home, when she heard a boom. Her older brother Timothy Nunez and his friends Jose 

Sanchez and defendant had been hanging out inside the house. When Alexandria looked 

through the front window, she saw defendant shoot Sanchez with a black gun. 

Alexandria saw Sanchez’s ear bleeding and heard him say “ow” and “stop.” She also 

heard Nunez say “stop.” Alexandria saw defendant continue to shoot Sanchez.

Hector Silva, defendant’s stepbrother, was getting ready for work when he 

received a call from Nunez. Nunez sounded panicked and asked Silva to immediately go 

to Nunez’s house. When Silva arrived at Nunez’s house, defendant entered his car. Silva

smelled the odor of bleach. Defendant told Silva, “Someone’s dead; it’s Pepe [Sanchez’s 

nickname]; I can’t talk about it now; I’ll tell you later.”

When Nunez’s mother Brandy Ann Ramsey arrived home in the evening, she saw 

a blue pickup truck backed up to the front door of her house. Defendant got in the pickup 

truck and left. Ramsey smelled the odor of bleach and a lavender scented cleaning 

solution in her home. She saw a stain that looked like blood on the carpet, by her front 

door. She noticed two shower curtains from her home were missing.

Defendant returned to Nunez’s house about an hour and a half after he had left. 

He took a shower in the downstairs bathroom. Then defendant and Nunez left the house.

Later that night, defendant asked Silva to drive him to a bridge. Defendant told 

Silva he placed Sanchez’s body under the bridge. Defendant had burned the body. 
3

Defendant went to look at the body, and he reported the body had not completely burned. 

Silva and defendant returned the next morning, and defendant attempted to burn 

Sanchez’s body one more time.

Silva subsequently saw defendant and Nunez burning clothes near a bike path by 

defendant’s apartment. Defendant and Nunez told Silva what happened to Sanchez. 

Defendant and Nunez said defendant pointed a gun at Sanchez and the gun fired. 

Defendant shot Sanchez. Sanchez tried to hide behind Nunez. Defendant tried to shoot 

Sanchez again and missed. But defendant “emptied the clip” when Sanchez sat down on 

a chair.

Two days after the shooting, police received a tip that defendant accidentally shot 

Sanchez in Nunez’s home with a .22 caliber gun which belonged to Nunez. Acting on 

the information they received, police searched Nunez’s house. Police found blood at 

three locations in the house: on the bottom of a couch located in the living room, on a 

polo shirt in the downstairs bedroom, and on the door jamb of the front entry door. 

Police found an empty box of .22 caliber ammunition, partially burned pieces of wood 

and drywall, what appeared to be tattoo needles, and a partially burned sponge in the 

fireplace.

During a subsequent search of the house, police found diluted blood stains on one 

of the kitchen table chairs. There was a probable bullet strike on the kitchen floor, and a 

.22 caliber bullet embedded in the kitchen wall, next to the dining room table. 

Bloodstains were also located on the carpet in the entryway, near the front door. DNA 

testing provided strong evidence that Sanchez was the source of the blood stains found on 

the couch, kitchen chair, and carpet, and that Sanchez was the primary source of the 

blood found on the polo shirt recovered from Nunez’s house.

Detective Scott Harris questioned Ramsey before police searched her home. 

Ramsey denied any knowledge of a shooting. But she said defendant left as she arrived 

home, and she smelled the odor of a cleaning solution in her home. During a second 
4

conversation with Detective Harris, Ramsey disclosed her daughter said she heard a 

gunshot when she was playing outside. At trial Ramsey admitted she was not honest and 

did not disclose everything she knew when she spoke with Detective Harris. Ramsey

said she was concerned Nunez was involved, so she wanted to speak with Nunez and find 

out what happened before speaking with the authorities.

Police recovered three expended .22 caliber shell casings by a bike path near 

defendant’s apartment. A criminalist later determined the shell casings were fired from 

the same semiautomatic firearm, but the specific type of semiautomatic firearm that was 

used could not be ascertained. Also by the bike path, police saw an ash pile from which 

they recovered a burnt zipper pull and metal eyelets, possibly from a shoe. In a nearby 

creek, police found a set of keys which included a key to Sanchez’s home.

Silva cooperated with the police. He gave police the following account: 

Defendant told Silva that Sanchez was being “antagonistic” when Nunez, defendant, and 

Sanchez were hanging out at Nunez’s house. Defendant pointed a gun at Sanchez and the 

gun discharged. Sanchez put his hand up to his head and said, “Holy shit, you shot me in 

the head.” Defendant freaked out. Sanchez tried to hide behind Nunez. Defendant 

“emptied the clip” into Sanchez. Defendant and Nunez wrapped Sanchez’s body in a 

shower curtain. Defendant placed the body under a bridge, and burned the body.

Sanchez’s body was discovered under a bridge. The body was wrapped in a 

plastic material that appeared to be a tarp or a shower curtain. It appeared the body had 

been burned under the bridge. Most of the body was charred.

Defendant and Nunez left town after police searched Nunez’s house. Police 

arrested defendant and Nunez in Gilroy. Nunez acknowledged there was a shooting, and 

that Sanchez, Nunez, and defendant were present at the shooting.

The People’s expert on cause of death, Dr. Thomas Resk, opined Sanchez died as 

a result of multiple gunshot wounds to the head and torso. Death occurred over a period 

of minutes. Dr. Resk determined Sanchez’s body was burned after Sanchez died.
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Dr. Resk identified six gunshot wounds. Sanchez was shot in his right upper arm; 

the left side of his head, above his ear; the back of his head; the right side of his chest; the 

left side of his back; and his left hand. The bullet which entered the right side of 

Sanchez’s chest perforated his right lung, and lodged in his pericardial sac. Dr. Resk 

opined Sanchez was alive when he received that gunshot wound and the wound to his left 

hand. Dr. Resk did not note any defensive wounds on Sanchez’s left hand or any 

indication that Sanchez had been in a fight. There was nothing to indicate that Sanchez 

had been stabbed or cut in any significant way.

The projectiles recovered from Sanchez’s body were consistent with .22 caliber 

bullets. It could not be determined whether the bullets were fired from the same weapon. 

There were over 200 models of firearms that could have fired those bullets. It also could 

not be determined whether the bullet found in Nunez’s kitchen wall was fired from the 

same weapon that fired the bullets recovered from Sanchez’s body. No gun was 

recovered in connection with this case.

Detective Ratto testified as a gang expert. His testimony explained why defendant 

might have killed Sanchez if defendant initially shot Sanchez by accident. Detective 

Ratto opined Nunez, Sanchez, and defendant were members of the Norteño criminal 

street gang. According to the detective, a Norteño gang member can be targeted for 

assault, killed, or expelled from the gang if he shot another Norteño gang member 

without a “green light,” even if the shooting was accidental. Detective Ratto was not 

aware of any “green light” on Sanchez.

The jury found defendant guilty of first degree murder (Pen. Code, § 187, 

subd. (a)).1 It found defendant personally and intentionally discharged a firearm which 

proximately caused great bodily injury and death to Sanchez. (§ 12022.53, subd. (d)). 

 

1

 Undesignated statutory references are to the Penal Code.
6

It also found defendant personally used a deadly and dangerous weapon within the 

meaning of section 12022.5, subdivision (a).

The trial court sentenced defendant to 25 years to life in prison on count 1, 

plus a consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d). 

The trial court imposed but stayed an additional consecutive 10-year term for the 

section 12022.5, subdivision (a) enhancement. Defendant’s aggregate sentence was 

50 years to life in prison.

DISCUSSION

I

Defendant contends the trial court erred in admitting part of Alexandria’s 

pretrial interview as a prior consistent statement under Evidence Code section 791, 

subdivision (b). We conclude the contention is forfeited.

A

Alexandria participated in a recorded pretrial interview. After defense counsel 

elicited testimony at trial that Alexandria’s mother, aunt, sister and “nana” told 

Alexandria what to say in court, the prosecutor sought to play a portion of the audio 

recording to the jury to demonstrate that Alexandria’s trial testimony was not a recent 

fabrication.

Evidence of a statement previously made by a witness is not made inadmissible by 

the rule against hearsay if the prior statement is consistent with the witness’s testimony at 

the hearing and is offered in compliance with Evidence Code section 791. (Evid. Code, 

§ 1236.) Evidence Code section 791 provides that a prior statement by a witness, which 

is consistent with the witness’s testimony at the hearing, is admissible to support the 

witness’s credibility if (1) the prior statement is offered after an express or implied charge 

has been made that the witness’s testimony at the hearing is recently fabricated or is 

influenced by bias or other improper motive, and (2) the prior statement was made before 

the bias, motive for fabrication, or other improper motive is alleged to have arisen.
7

Defendant’s trial counsel objected to admission of the recording on the ground of 

relevance. He said Alexandria did not testify that anyone told her to lie. Defense counsel 

did not assert any other ground for objection to the evidence.

Defendant now argues the People failed to show that Alexandria made the pretrial

statement before the motive to fabricate arose, that is, before Ramsey, who had 

motivation to lie about what happened, coached Alexandria on what to say. But in 

general, a defendant forfeits an appellate claim when he fails to timely object in the trial 

court on the specific ground raised on appeal. (Evid. Code, § 353, subd. (a); People v. 

Abel (2012) 53 Cal.4th 891, 924.) “ ‘What is important is that the objection [in the trial 

court] fairly inform the trial court, as well as the party offering the evidence, of the 

specific reason or reasons the objecting party believes the evidence should be excluded, 

so the party offering the evidence can respond appropriately and the [trial] court can 

make a fully informed ruling. If the [trial] court overrules the objection, the objecting 

party may argue on appeal that the evidence should have been excluded for the reason 

asserted at trial, but it may not argue on appeal that the [trial] court should have excluded 

the evidence for a reason different from the one stated at trial. A party cannot argue the 

[trial] court erred in failing to conduct an analysis it was not asked to conduct.’ ” (Ibid.)

The rule is illustrated in People v. Dorsey (1974) 43 Cal.App.3d 953. In that case, 

the prosecutor sought to have the custodian of records for the bank where the defendant 

kept a checking account testify about the content of the defendant’s checking account 

records. (Id. at pp. 958, 960.) When the defendant objected to the testimony on hearsay 

grounds, the prosecutor established that the bank kept the proffered records in the 

ordinary course of business, the witness was the bank’s custodian of records, and part 

of his duties was to keep the bank’s records. (Id. at p. 960.) The defendant continued 

to object to the testimony on the ground that insufficient foundation had been laid for 

its admission under the business records exception to the rule against hearsay. (Id. at 

pp. 959-960.) The defendant did not specify how the custodian of record’s testimony 
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failed to establish adequate foundation for admission under the hearsay exception until he 

argued on appeal that the testimony failed to show the mode and time of preparation of 

the bank records. (Ibid.) The appellate court concluded the defendant could not assert 

his appellate claim because he did not clearly state the particular ground raised on appeal 

in the trial court. (Ibid.) It said the requirement of specifying the ground of objection in 

the trial court was especially significant where, as in that case, the objection could have 

been easily cured by the party offering the testimony if the defendant had stated the 

specific reason for his objection at trial. (Ibid.) 

Here, as defendant concedes, he did not object in the trial court on the specific 

ground raised on appeal. If defendant had asserted at trial that the People had not shown 

Alexandria made the pretrial statements before the motive for fabrication arose, the 

prosecutor and the trial court could have addressed that issue. Defendant’s trial counsel 

objected on the ground of relevance, and the trial court addressed that issue only.

Unlike People v. Brenn (2007) 152 Cal.App.4th 166, 171, a case cited by 

defendant, the prosecutor in this case did not raise the particular issue defendant asserts 

on appeal. The other cases cited by defendant -- People v. Gibson (1976) 56 Cal.App.3d 

119, People v. Dowdy (1975) 50 Cal.App.3d 180, and People v. Williams (1988) 

44 Cal.3d 883 (Williams) -- are also distinguishable. Trial counsel for the defendants 

in Gibson and Dowdy objected to the admission of challenged evidence in a manner 

sufficient to alert the trial court and the prosecutor of the ground for objection raised on 

appeal. (Gibson, supra, 56 Cal.App.3d at pp. 136-137; Dowdy, supra, 50 Cal.App.3d at 

p. 187.) And in Williams, the prosecutor referred to uncharged crimes committed by the 

defendant during his opening statement. (Williams, supra, 44 Cal.3d at pp. 906-907 & 

fn. 5.) The defendant’s trial counsel objected to the other crimes evidence at the trial on 

the ground of relevancy. (Id. at p. 907.) Other crimes evidence is admissible under 

Evidence Code section 1101, subdivision (b) when it is relevant to prove a fact other than 

a person’s criminal disposition, such as intent, opportunity, preparation, or identity. 
9

(Id. at p. 904.) The California Supreme Court held that in the context of the prosecutor’s 

opening statement, the objection by the defendant’s trial counsel was sufficient to alert 

the trial court that admissibility must be determined under the criteria of Evidence Code 

section 1101, subdivision (b). (Id. at pp. 904-907.) The California Supreme Court held 

that the defendant preserved his Evidence Code section 1101 appellate claim. (Id. at 

pp. 906-907.)

Here, like the defense counsel in Williams, defendant’s trial counsel objected on 

the ground of relevancy at the trial. (Williams, supra, 44 Cal.3d at p. 906.) On appeal, 

however, defendant does not claim Alexandria’s pretrial statement is not relevant to an 

issue in the case. Instead, defendant contends Alexandria had a motive to fabricate at the 

time she made her pretrial statement. The objection made in the trial court by 

defendant’s trial counsel does not encompass the claim defendant makes on appeal. 

Accordingly, we conclude defendant failed to preserve his appellate claim for review. 

(Evid. Code, § 353, subd. (a); People v. Dorsey, supra, 43 Cal.App.3d at pp. 959-960.) 

Defendant contends the trial court and the parties discussed all of “the key points”

regarding the prior consistent statement hearsay exception. We disagree. Although the 

trial court said Alexandria’s pretrial statement had relevance given the proximity between 

the shooting and the interview, trial counsel and the trial court did not discuss whether

Ramsey or someone else coached Alexandria on what to say before Alexandria made her

pretrial statements.

II

Defendant next claims the trial court failed to inquire whether defendant’s trial 

counsel had a conflict of interest in continuing to represent defendant on his new trial 

motion.

The Sixth Amendment to the United States Constitution and article I, section 15 

of the California Constitution guarantee a defendant the right to effective assistance of 

counsel. (People v. Bonin (1989) 47 Cal.3d 808, 833 (Bonin).) The purpose of that right 
10

is to ensure that the defendant receives a fair trial. (Id. at 834.) Included in the right 

to the effective assistance of counsel is the right to representation free from conflicts 

of interest. (Id. at pp. 833-834.) 

The trial court must make an inquiry into the matter when it knows, or reasonably 

should know, of the possibility of a conflict of interest on the part of defense counsel. 

(Wood v. Georgia (1980) 450 U.S. 261, 272 [67 L.Ed.2d 220, 230-231]; Bonin, supra,

47 Cal.3d at p. 836.) We examine the facts before the trial court to determine whether a 

duty of inquiry existed. (Wood v. Georgia, supra, 450 U.S. at pp. 272-274 [67 L.Ed.2d at 

pp. 230-231].)

Defendant says the trial court had reason to suspect that his trial counsel, 

Joe Vandervoort, had a conflict of interest because he and codefense counsel 

Geoff Dulebohn filed motions to be relieved as counsel, indicating there was a conflict

of interest, and the trial court permitted Dulebohn to withdraw as defendant’s counsel. 

Defendant claims the trial court could not determine whether Dulebohn’s conflict of 

interest also extended to Vandervoort without inquiry.

Dulebohn filed a motion to be relieved as counsel after the jury returned its verdict 

but before the trial court sentenced defendant. Dulebohn sought to withdraw as 

defendant’s counsel because “the attorney/client privilege [had] broken down” and there 

was “a legal and factual conflict of interest between the attorney and defendant.” 

Vandervoort filed a nearly identical motion.

It appears Vandervoort and Dulebohn’s motions to withdraw are based on 

Dulebohn’s late reexamination of a photograph he claimed supported a different theory 

of how Sanchez was killed. Dulebohn said that during the trial, he began to formulate a 

theory that Sanchez was tortured and killed in the downstairs bathroom of Nunez’s home. 

Dulebohn believed the wound to Sanchez’s left hand was not a bullet wound, but rather

the wound indicated Sanchez’s left hand was staked to the bathroom floor by a V-shaped 

metal object. Dulebohn said that upon reexamining the evidence with greater scrutiny 
11

during the trial, he came to believe the living room and kitchen were “dressed up” as “a 

decoy crime scene.” According to Dulebohn, he could not prove his theory without 

additional investigation, and he thought “it was too late at that point.” Dulebohn said that 

after the verdict, he used photo editing to enhance a photograph of the floor of Nunez’s 

downstairs bathroom,

2 and the enhanced photograph showed a V shape in the bathroom 

floor. Dulebohn argued the enhanced photograph, along with other evidence presented at 

the trial (such as a V-shaped flap on Sanchez’s left hand), supported his new theory.

The motions to be relieved as counsel, and defendant’s motion for a new trial,

do not indicate Vandervoort was responsible for the late discovery of the asserted new 

evidence. Dulebohn said he did not reexamine a particular photograph of the bathroom 

floor until after the verdict. Dulebohn did not attribute the belated scrutiny of the 

photograph to Vandervoort. Dulebohn said he would have sought to have a medical 

expert analyze the evidence had he realized the photograph of the bathroom floor 

supported his theory that Sanchez was tortured in the bathroom. Dulebohn did not say 

Vandervoort was responsible for any omission with regard to a medical expert.

Moreover, Vandervoort told the trial court he had no possible conflict of interest. 

Vandervoort said he filed a motion to be relieved as counsel because Dulebohn filed one,

and Vandervoort believed he should withdraw as defense counsel “to be safe.” 

Vandervoort said he changed his opinion “after discussing the situation with numerous 

lawyers, organizations, and [his] own personal lawyer that [he] was shielded and 

screened for any possible conflict for which Mr. Dulebohn withdraws.” The trial court 

may rely on Vandervoort’s representations that no possible conflict existed. (People v. 

 

2

 The photograph upon which the enhanced image was created was available 

to defendant at trial. But defendant claimed in his new trial motion the enhanced 

photograph could not, with reasonable diligence, have been discovered and produced 

at trial.
12

Lawley (2002) 27 Cal.4th 102, 146.) Under the circumstances, the trial court had no duty 

to inquire because it had no reason to know or suspect Vandervoort had any conflict of 

interest.

The Attorney General points out that defendant agreed to Vandervoort’s continued 

representation after the verdict. To the extent the Attorney General claims defendant 

waived his right to unconflicted representation, the record does not show defendant 

knowingly waived that right. “ ‘[W]aivers of constitutional rights must . . . be “knowing, 

intelligent acts done with sufficient awareness of the relevant circumstances and likely 

consequences[,]” . . . [and] must be unambiguous and “without strings.” ’ [Citations.] 

[¶] Before it accepts a waiver offered by a defendant, the trial court need not undertake 

any ‘particular form of inquiry . . . , but, at a minimum, . . . must assure itself that (1) the 

defendant has discussed the potential drawbacks of [potentially conflicted] representation 

with his attorney, or if he wishes, outside counsel, (2) that he has been made aware of the 

dangers and possible consequences of [such] representation in his case, (3) that he knows 

of his right to conflict-free representation, and (4) that he voluntarily wishes to waive that 

right.’ ” (Bonin, supra, 47 Cal.3d at p. 837.) The record does not show defendant was 

made aware of his right to conflict-free representation, of the possible consequences of 

potentially conflicted representation, and that he had discussed the potential drawbacks of 

such representation with counsel.

Defendant further argues that Vandervoort’s less than zealous advocacy on the 

new trial motion indicated an undisclosed conflict. The trial court announced it had read 

defendant’s new trial motion. The motion contained a lengthy declaration by Dulebohn. 

Vandervoort told the trial court the new trial motion was “well taken” and should be 

granted, but he would not “argue any facts.”

We are not convinced Vandervoort was a less than zealous advocate in 

representing defendant on the new trial motion or that Vandervoort had an undisclosed 

conflict. Based on our review of the record, it appears Vandervoort believed the written 
13

motion and the lengthy declaration by Dulebohn adequately set forth the grounds for 

granting a new trial, and he elected not to restate the arguments and factual assertions 

contained in the written motion. Vandervoort’s election to submit the matter on the 

papers does not demonstrate he had a possible conflict of interest and did not trigger 

a duty to inquire on the part of the trial court.

In addition, defendant claims the trial court should have inquired whether 

Vandervoort had a conflict of interest which prevented him from seeking a new trial 

based on ineffective assistance of counsel. A motion for new trial may be based on 

ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582.) 

Defendant asserts he received ineffective assistance of counsel because Dulebohn and 

possibly Vandervoort overlooked a defense theory that Sanchez was tortured and then 

killed in the bathroom, and counsel failed to request a continuance of the trial to retain a 

medical expert to explore that theory.

To establish ineffective assistance of trial counsel, defendant must prove (1) that 

trial counsel's representation was deficient because it fell below an objective standard of 

reasonableness under prevailing professional norms, and (2) that the deficiency resulted 

in prejudice to the defendant. (People v. Maury (2003) 30 Cal.4th 342, 389; Strickland v. 

Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) 

As we have explained, nothing before the trial court indicated Vandervoort was 

responsible for the belated discovery of the enhanced photograph or the failure to retain a 

medical expert. Because defendant fails to prove inadequate representation by 

Vandervoort in this regard, defendant also fails to establish the trial court breached a duty 

to inquire based on Vandervoort’s omissions. (People v. Mai (2013) 57 Cal.4th 986, 

1033-1035 (Mai) [rejecting claim that conflict of interest prevented defense counsel from 

asserting that the defendant was incompetent to stand trial where there was no substantial 

evidence of the defendant’s incompetence].) 
14

We also conclude defendant fails to establish his claim based on alleged 

inadequate representation by Dulebohn. Nothing in the record shows Vandervoort’s 

relationship with Dulebohn prevented Vandervoort from arguing that Dulebohn’s 

representation was deficient. Vandervoort could have reasonably concluded that an 

ineffective assistance of counsel claim lacked merit because Dulebohn presented his 

torture theory to the jury. Dulebohn asked the jury to find that Sanchez was killed in the 

bathroom, and that defendant did not kill Sanchez. We reject defendant’s claim of 

ineffective assistance by Vandervoort because there is a rational explanation for 

Vandervoort’s omission. (Mai, supra, 57 Cal.4th at p. 1009.)

Unconflicted counsel could also have reasonably concluded an ineffective 

assistance of counsel claim against Dulebohn was unmeritorious because a different 

verdict was not reasonably probable. There is no evidence Sanchez was shot in the 

bathroom. There is no evidence of bloodstains found in the bathroom. Dulebohn argued 

to the jury that defendant did not kill Sanchez, and that Sanchez was killed in the 

bathroom. But the jury found defendant committed murder. Defendant does not show 

that he could not have shot Sanchez in the kitchen area, as Alexandria testified she saw, if 

Sanchez had been tortured in the bathroom. 

In sum, we cannot conclude the trial court knew or reasonably should have known 

of the possibility of a conflict of interest on the part of defense counsel Vandervoort. 

Accordingly, we reject defendant’s claim that under the circumstances before it, the trial 

court had a duty to inquire further concerning a possible conflict of interest.

III

Defendant also contends his sentence violates the principles articulated in Miller, 

supra, 567 U.S. __ [183 L.Ed.2d 407], even though he was over the age of 18 when he 

murdered Sanchez.

The Attorney General counters that defendant did not preserve his Eighth 

Amendment claim for appellate review. We disagree. The People asked the trial court 
15

to sentence defendant to 50 years to life in prison. Defense counsel asked the trial court 

for leniency, and referenced the constitutional prohibition against cruel or unusual 

punishment.

Although defendant did not forfeit his Eighth Amendment claim, the claim fails on 

the merits. Defendant’s Eighth Amendment claim is based on Miller, supra, 567 U.S. __ 

[183 L.Ed.2d 407], Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825], Roper v. 

Simmons (2005) 543 U.S. 551 [161 L.Ed.2d 1], People v. Gutierrez (2014) 58 Cal.4th 

1354, and People v. Caballero (2012) 55 Cal.4th 262. But, unlike defendant, the 

defendants in those cases were under the age of 18 at the time of their crimes. (Miller, 

supra, 567 U.S. at p. __ [183 L.Ed.2d at pp. 415-416]; Graham v. Florida, supra,

560 U.S. at pp. 53-55, 74 [176 L.Ed.2d at pp. 832-833, 845]; Roper v. Simmons, supra,

543 U.S. at p. 578 [161 L.Ed.2d at p. 28]; People v. Gutierrez, supra, 58 Cal.4th at 

p. 1360; People v. Caballero, supra, 55 Cal.4th at p. 265.)

Miller, supra, 567 U.S. __ [183 L.Ed.2d 407] and the other cases cited by 

defendant do not require us to remand this matter. (People v. Argeta (2012) 

210 Cal.App.4th 1478, 1482 [the rationale applicable to the sentencing of juveniles in 

Miller, supra, 567 U.S. __ [183 L.Ed.2d 407], Graham v. Florida, supra, 560 U.S. 48 

[176 L.Ed.2d 825] and People v. Caballero, supra, 55 Cal.4th 262 does not apply to a 

defendant who was over 18 years old at the time of the crime]; People v. Abundio (2013) 

221 Cal.App.4th 1211, 1220-1221 [follows People v. Argeta, supra, 210 Cal.App.4th 

1478].)

The United States Supreme Court recognized an argument can be made that “[t]he 

qualities that distinguish juveniles from adults do not disappear when an individual turns 

18.” (Roper v. Simmons, supra, 543 U.S. at p. 574 [161 L.Ed.2d at pp. 24-25].) 

Defendant makes a similar argument here. Nonetheless, the Supreme Court drew the line

for Eighth Amendment purposes at age 18. (Graham v. Florida, supra, 560 U.S. at 

pp. 74-75 [176 L.Ed.2d at p. 845] [“[b]ecause ‘[t]he age of 18 is the point where society 
16

draws the line for many purposes between childhood and adulthood,’ those who were 

below that age when the offense was committed may not be sentenced to life without 

parole for a nonhomicide crime.”]; Roper v. Simmons, supra, 543 U.S. at p. 574 

[161 L.Ed.2d at pp. 24-25]; People v. Gutierrez, supra, 58 Cal.4th at p. 1380.) We are 

bound to follow the clear line the United States Supreme Court has drawn. (People v. 

Fletcher (1996) 13 Cal.4th 451, 469, fn. 6 [the decisions of the United States Supreme 

Court on questions of federal constitutional law are binding on all state courts].) 

DISPOSITION

The judgment is affirmed.

 /S/

Mauro, J.

I concur:

 /S/

Raye, P. J.
1

DUARTE, J., Concurring.

Although I agree that the judgment should be affirmed, I disagree with the 

majority’s conclusion that defense counsel’s objection at trial was insufficient to preserve 

the appellate claim that the child witness’s prior statement was improperly admitted as a 

prior consistent statement. The way I read the record, trial counsel preserved the claim.

Although counsel’s initial objection was couched as a relevance objection, he 

explained the basis of his objection to the prosecutor’s request to admit the child’s 

recorded statement as “she never said anybody told her to lie.” The prosecutor retorted: 

“I’m sure we’ll be hearing in argument that this is a recently fabricated story and that she 

was told what to say. Being able to play a very short portion of the [recording] will 

demonstrate to the jury that is not the case, that she has been consistent.” After the court 

asked a question about the recording’s length, defense counsel described his objection to 

the child’s “consistent statement” as submitted. The trial court then admitted the 

recording, finding it relevant “to help the trier of fact evaluate [the child’s] credibility.” 

Given this context and surrounding discussions between the court and all counsel, 

I construe defense counsel’s relevance objection as challenging the relevance of the 

child’s prior consistent statement (which at that point the prosecutor had moved to admit) 

given that the child “never said anybody told her to lie.” So the objection was to the 

statement’s relevance (and proposed admission) as a prior consistent statement, given 

that a prior consistent statement is only admissible if there is evidence of recent 

fabrication. And here, defense counsel was arguing there was no evidence of fabrication, 

so the prior statement was not relevant to prove the absence of fabrication. It is clear to 

me from the record that the parties and court understood the objection to cover the 

statement’s classification as a prior consistent statement and whether the statement at 

issue was properly classified, given that the defense position that there was no evidence 

of recent fabrication, i.e., the witness “never said anybody told her to lie.” Imperfectly 

and inartfully expressed, perhaps, but adequately expressed in my view, given that the 
2

court and the parties were familiar with the evidence and in the middle of the witness’s 

examination.

Thus I would hold that the evidentiary claim was preserved. 

Reaching the merits, I would conclude that the trial court did not abuse its 

discretion when it admitted the recording as a prior consistent statement. After defense 

counsel elicited from the child on cross examination that a number of her family 

members, including her mother, had “told [her] what to say today,” and asked her if she 

always followed her mother’s direction as to what to do and say, there was a suggestion 

of fabrication at trial such that the trial court could properly admit the recording as 

evidence that the child had described the relevant points in a consistent fashion on a prior 

occasion. Evidence Code section 791, subdivision (b) permitted the recording’s 

admission, given that there was a “broad charge of fabrication” occurring after the 

statement at issue was given. (People v. Brents (2012) 53 Cal.4th 599, 616 [“ ‘Evidence 

Code section 791 permits the admission of a prior consistent statement when there is a 

charge that the testimony given is fabricated or biased, not just when a particular 

statement at trial is challenged’ ”]; see People v. Noguera (1992) 4 Cal.4th 599, 629 [“a 

prior consistent statement is admissible as long as the statement is made before the 

existence of any one of the motives that the opposing party expressly or impliedly 

suggests may have influenced the witness’s testimony”].) 

 /S/

Duarte, J.