People v. Bock

THE PEOPLE, Plaintiff and Respondent, v. JACOB ARNOLD BOCK et al., Defendants and Appellants.

E070783

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

April 28, 2020

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on April 28, 2020, be modified as follows:

1. On page 20, after the sentence ending "... and thereby denies him due process," add the following as footnote 9:

"Although Comrie did not raise this issue in his opening brief, he filed a notice of joinder pursuant to California Rules of Court, Rule 8.200(a)(5), joining in Bock's argument. Our analysis here, rejecting Bock's argument, applies equally to Comrie."

There is no change in the judgment.

The petition for rehearing is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

CODRINGTON

Acting P. J.

SLOUGH

J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. FVI1502171)

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed with directions.

Robert J. Beles and Joseph L. Ryan for Defendant and Appellant Jacob Arnold Bock.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Kyle Comrie.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

Defendants and appellants Jacob Arnold Bock and Kyle Patrick Comrie were convicted of first degree murder, first degree robbery, and first degree burglary in a joint trial conducted with separate juries. Bock's jury also found true firearms enhancements, which had been alleged only against him. The trial court sentenced Bock to 50 years to life and sentenced Comrie to 25 years to life.

Bock, who was 15 years old at the time of the murder, contends that pursuant to Senate Bill No. 1391 (2017-2018 Reg. Sess.) (Sen. Bill 1391) (Stats. 2018, ch. 1015, § 1) we should vacate his sentence and remand the matter with instructions that it be transferred from adult criminal court to juvenile court for a disposition hearing, with the jury's verdict treated as a juvenile adjudication. In addition, Bock argues that his statement to police was involuntary, that his Miranda v. Arizona (1966) 384 U.S. 436 rights were violated, that the jury's instructions were contradictory and confusing in certain respects, and that each of these errors requires reversal. Finally, Comrie and Bock both contend that their murder convictions must be reversed because the trial court did not instruct the jury on the additional elements of first degree felony murder required by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Sen. Bill 1437) (Stats. 2018, ch. 1015)

Bock's first argument, as the People concede, has merit. We reject defendants' remaining arguments. We therefore affirm the judgment against Comrie. We vacate the sentence imposed on Bock and remand his case to the trial court with directions to transfer it to juvenile court for an appropriate disposition.

I. BACKGROUND

On August 24, 2015, a law enforcement officer discovered the victim in this case, an older man, lying on his back partially underneath his motorhome, deceased. He had various wounds on his body that appeared to the officer to be either contusions or burn marks, and lividity and rigor mortis appeared to have set in. Forensic examination would later reveal the victim had suffered blunt force trauma to the head, torso, and extremities, possibly from being kicked or hit with a baseball bat, as well as a gunshot wound to the neck. The medical examiner opined that the gunshot wound was the immediate cause of death; the blunt force trauma to the head would also have been fatal if left untreated, but the victim was still alive when he was shot.

Bock and Comrie were interviewed separately by police, and each confessed to some involvement in the victim's death, albeit with caveats and explanations. Information from a third person also implicated Bock and Comrie in the murder. Police recovered the bat used to beat the victim. The gun used in the murder had belonged to the victim; it was taken from the scene and later destroyed by Bock and Comrie.

Bock and Comrie were both charged with one count of first degree murder (Pen. Code¹, § 187, subd. (a); count 1), one count of first degree residential robbery (§ 211; count 2), and one count of first degree burglary with a person present (§ 459; count 3)). The information further alleged with respect to counts 1 and 2 that Bock had personally and intentionally discharged a firearm, proximately causing great bodily injury (§ 12022.53, subd. (d)), personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and personally used a firearm (§ 12022.53, subd. (b)). With respect to count 3, the information alleged that Bock had personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)). For all three counts, the information alleged that Bock "was a minor who was at least 14 years of age" at the time the offenses were committed (former Welf. & Inst. Code, § 707, subds. (d)(2)(A), (d)(2)(B) (Stats. 2010, ch. 178, § 97, operative Jan. 1, 2012).

Bock, who was 15 years old at the time of the murder, requested before trial that his case be moved to juvenile court. In response, the prosecutor requested a transfer hearing pursuant to former Welfare and Institutions Code section 707, subdivision (a). The juvenile court conducted a transfer hearing, and it concluded that Bock's case should be transferred to adult criminal court.

Two separate juries were impaneled, one for each defendant. The trial court instructed the juries on two theories of first degree murder: willful, deliberate, and premeditated murder, and first degree felony murder. The prosecution argued that either defendant could be convicted under either theory.

Comrie's jury found him guilty on each of the three counts. Bock's jury found him guilty on each of the three counts and it found each of the enhancement allegations to be true. The trial court sentenced Bock to 50 years to life, consisting of a term of 25 years to life for count 1, plus a term of 25 years to life for the section 12022.53, subdivision (d) enhancement of that count, and stayed terms for counts 2 and 3 and their enhancements. The court sentenced Comrie to 25 years to life on count 1, and stayed terms for counts 2 and 3.

II. DISCUSSION

A. Sen. Bill 1391

Bock has not argued that the juvenile court erred by transferring his case to adult criminal court under the law in effect at the time. Following the enactment of Sen. Bill 1391, however, Welfare and Institutions Code section 707 no longer permits any individuals who were under 16 years of age when they committed a felony to be transferred to adult criminal court. (People v. Castillero (2019) 33 Cal.App.5th 393, 399; Welf. & Inst. Code, § 707, subd. (a).) The parties agree that Sen. Bill 1391 is retroactive to defendants whose cases were not final on the effective date of the legislation, January 1, 2019. The statute is ameliorative, in that it dramatically reduces the potential punishment for those who qualify for application of the statute. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308-309.)

The parties agree that Sen. Bill 1391 must be applied to this appeal because the case is not yet final, and Bock was 15 years old at the time of the murder. We note that, although most appellate courts to consider the issue have found Sen. Bill 1391 constitutional, that conclusion has not been unanimous, and the issue of whether it unconstitutionally conflicts with the voters' 2016 Proposition 57 initiative is now pending before the California Supreme Court. (See Narith S. v. Superior Court (2019) 42 Cal.App.5th 1131, 1136-1140 [discussing split in Courts of Appeal, noting that Supreme Court has granted review in four cases].) Here, however, no party has challenged the constitutionality of Sen. Bill 1391. Moreover, we agree with the conclusion of the majority of appellate courts to have considered the issue, including ours, who have found Sen. Bill 1391 constitutional. (See, e.g., B.M. v. Superior Court (2019) 40 Cal.App.5th 742, 747.) Bock's sentence is vacated and the matter remanded for his case to be transferred to the juvenile court for an appropriate disposition. (See People v. Castillero, supra, 33 Cal.App.5th at p. 400 [so ordering in similar circumstances].)

B. Bock's Statement to Police

Bock contends that the trial court erred by admitting his statement to police, arguing that the statement should be considered involuntary under the circumstances, and that he had invoked his Miranda rights by requesting to speak to his father. We find no error.

1. Additional background

In September 2015, Bock was interviewed by two members of the San Bernardino County Sheriff's Department. Bock was detained at his home and then driven to the sheriff's department headquarters for the interview—a drive of about 40 minutes, during which he sat in the front seat, and was not handcuffed. Bock was informed of his Miranda rights before that drive and agreed to speak with the officers. Bock's discussions with the officers were recorded.

The portion of Bock's discussions with the officers that was admitted at trial was conducted in an interview room at the headquarters. One officer took the lead in conducting the interview, though a second officer was also present and asked a few questions. During the discussion, Bock explained that the victim had been living in a motorhome on Bock's family's property, but that he had been kicked off the property by...