Opinion
D068066
11-30-2016
THE PEOPLE, Plaintiff and Respondent, v. JAMES BARBARIN, Defendant and Appellant.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1203746) APPEAL from a judgment of the Superior Court of Riverside, Christian F. Thierbach, Judge. Affirmed in part; remanded with directions. Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant James Barbarin (Appellant) was 16 years old when he was convicted by a jury of the attempted murder of Tony Adame, who was known in Appellant's community as a dropout from a gang of which some of Appellant's family were members. (Pen. Code, §§ 664/187, subd. (a); all further statutory references are to this code unless noted.) The jury found true the charged enhancements, that Appellant personally used a firearm and inflicted great bodily injury upon the victim (§ 12022.53, subd. (d); § 12022.7, subd. (a); § 1192.7, subd. (c)(8)), and that the crime was committed for the benefit of a gang. (§ 186.22, subd. (b).)
The trial court sentenced Appellant to 40 years to life in prison, consisting of 15 years to life as the sentence for attempted murder, and a consecutive sentence of 25 years to life for personal discharge of a firearm causing great bodily injury, in the commission of a gang-related offense. (§ 186.22, subd. (b)(5); § 12022.53, subd. (d).) The enhancement under section 12022.7 was stricken. (§§ 12022.53, subd. (f), 1170.1, subd. (g).) He appeals, contending that no substantial evidence supports his conviction for attempted murder and his lengthy sentence is in violation of constitutional protections against cruel and unusual punishment, because it arguably amounts to a de facto sentence of life without possibility of parole (LWOP) that was imposed on him for a crime committed when he was 15 years of age. (U.S. Const., 8th Amend.; Miller v. Alabama (2012) 567 U.S. ___ (Miller).) He also argues that the superior court, when sentencing him, did not properly consider Appellant's age and other facts as prescribed by Miller.
In an unpublished opinion filed November 16, 2015, we found Appellant's contentions without merit. We determined that Appellant's conviction for attempted murder was supported by substantial evidence. We also rejected Appellant's challenge to his sentence under the Eighth Amendment and Miller, supra, 132 S.Ct. 2455.
Our high court granted Appellant's petition for review, but deferred pending the court's decision in People v. Franklin (2016) 63 Cal.4th. 261 (Franklin). After the court issued its opinion in that matter, it transferred the matter to this court with directions to vacate our opinion and reconsider the case in light of Franklin, supra, at pages 283 through 284. The parties have submitted supplemental briefs following the transfer of the instant matter back to this court. We have complied with the Supreme Court's direction and determine, based on Franklin and after considering the supplemental briefs, Appellant's arguments under the Eighth Amendment and Miller are moot. As such, we affirm the judgment. However, because the court in Franklin emphasized the importance of a juvenile defendant, at a sentencing hearing, having a sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing, we remand the matter to the superior court for the limited purpose of allowing Appellant to make such a record.
I
SUBSTANTIAL EVIDENCE CLAIM
A. Standards of Review
Appellant's main defense at trial was a lack of confirming identification of him, as the assailant, by a third party. The East Side Riva (ESR) gang, a branch of the Mexican Mafia or Sureno, has numerous members in Riverside, including family members of Appellant to whom he bears a resemblance. Appellant points out that many gang members presumably had a motive to shoot Tony Adame, since a decision to drop out of a gang is the type of act that exacts retaliation in that culture. Appellant argues that Adame, a convicted felon, was extremely unreliable as a witness in identifying the perpetrator, so his testimony cannot amount to substantial evidence in support of the judgment. The trial court acknowledged at sentencing that Adame "is not on the Chamber of Commerce man of the year finalist list." Appellant also claims Adame had developed such a bias and desire for revenge that he would likely have blamed anyone who might be associated with the ESR gang, however unfair or inaccurate it might be for him to do so.
In reviewing such claims of insufficient evidence to support a conviction, we apply familiar substantial evidence standards of review. We review the entire record in the light most favorable to the trial court decision, drawing all reasonable inferences in favor of the trial court decision. (People v. Johnson (1980) 26 Cal.3d 557, 576-577; People v. Zamudio (2008) 43 Cal.4th 327, 357.) To the extent that an appellant seeks to reargue the evidence on appeal, the reviewing court is not authorized to reassess the credibility of the witnesses. (People v. Thompson (2010) 49 Cal.4th 79, 124-125 (Thompson).) We determine whether there is substantial evidence in the record from which a reasonable jury could find each element of the offense to have been proved beyond a reasonable doubt. (Zamudio, supra, at p. 357.)
Even where an alternative theory of events was argued to the jury, if " ' "the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) A jury is best able to evaluate inconsistencies in testimony, in order to determine which facts have been shown to be true. (See People v. Barnes (1986) 42 Cal.3d 284, 306; see People v. Mincey (1992) 2 Cal.4th 408, 444.) A single witness's testimony may be sufficient to support a conviction unless it must be rejected because the events described were impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) A defendant may not reargue the evidence on appeal, and we do not reassess witness credibility. (Thompson, supra, 49 Cal.4th at pp. 124-125.)
B. Background Information about Appellant and Adame
In 2013, Appellant lived in Riverside with his father Manuel Barbarin and other relatives, some of whom were members of ESR. For a few years before the shooting, Appellant was in the habit of socializing at a local park that was an ESR gang hangout, and he admitted to police officers who asked him that he was a gang member. Field investigation cards from 2011-2013 indicated Appellant sometimes wore gang-type clothing (distinctive belt buckle/baggy, large dark clothing), and officers believed he was affiliated with a gang, based on his companionship with known ESR gang members. Appellant spent time with his younger cousin, Isaac Sanchez, who was related to him on his Hispanic mother's side. Appellant also hung out with his older half-brother Daniel Valadez, who had a different father, a Black man.
Adame, age 44 at the time of the shooting, went to school with Appellant's father and uncles. For some time, Adame was a fellow ESR member with Appellant's relatives. Adame began his gang involvement as a young teenager, and until around 2005, he was an active "soldier" in ESR's 14th Street clique. Adame served prison terms for felonies beginning in 1991 (shooting at an occupied vehicle), in 1995 (robbery), and in 2005 (transporting controlled substance). While active in the gang, he also committed numerous other offenses for which he was not charged.
During his prison sentence for the 2005 drug conviction, Adame decided to drop out of ESR, feeling he "was getting older," and some of its younger members did not appear to have discipline and focus. He also left in recognition of the needs of his wife and young children. He began the "debriefing" process by contacting prison authorities. He was placed in solitary confinement and then protective custody (PC) in the sensitive needs yard, in compliance with the prison's safety protocol for protecting dropouts. Later, Adame was paroled, but he did not report to his parole officer and was returned to prison. He was again paroled in December 2011.
Adame knew that in ESR culture, dropouts like him are considered "dead" or "dead [men] walking." Although he realized he would be in danger of gang retaliation in ESR territory, he moved to the home of his 83-year-old grandmother, located there. He had separated from his wife and felt that his grandmother's house was the only place he could call home, and also, she could use his help. He had a job and was avoiding drugs due to drug testing requirements at work. He socialized with other dropouts at times, even though that was against gang protocol.
It was not unusual for Adame, whose background was known in the neighborhood, to be attacked, cursed and called names by ESR gang members. A bystander would call him a dropout or say things like "Hey, PC" (referring to his protective custody status in prison). One day, he was going to the store when someone fired a gun at him and hit his car. Sometimes, when gang members tried to "jump" and attack him, he was able to "spank them" or beat them up, protecting himself. He had seen Appellant's family members around in the neighborhood, but he did not know Appellant personally. Adame thought that the Barbarin family members looked distinctive, "like Eskimos."
Adame was aware that ESR members have a serious rivalry with a local b lack gang, and he was surprised when he saw people of African-American descent in ESR neighborhoods. Valadez appeared to him to be such a person.
C. Events of Shooting
At trial, Adame testified that on September 4, 2013, he went home from work around 5:00 p.m.-6:00 p.m. and found other family members at the house. Relaxing for the upcoming weekend, he was sitting on the porch drinking beer when his friend Jesse Rodriguez dropped by. Adame left his beer with Rodriguez and went to clean his work tools in the back of his truck. He noticed Rodriguez talking to several young men, including Appellant, near the side of the house. He heard someone in the crowd call him "PC," so he cursed back at the men, yelling, "What's up? You want some?"
Appellant's half-brother Valadez testified for the defense that he, Appellant, and Sanchez were visiting with Rodriguez at Adame's house, when Adame came up and started trying to go through Sanchez's pockets. Valadez objected, saying that Adame was older and bigger than Sanchez, and Adame responded by taunting him about looking like a black man and calling him racial slurs. Suddenly, Adame punched Valadez and people started gathering. Valadez said at trial that he was not sure whether Adame might have been reaching toward a weapon at his belt line. Sanchez got scared and wanted to leave, and he and his companions left.
Adame asked Rodriguez who had been cursing at him, and Rodriguez told him one of the young men was Appellant, called "Happy," a member of the Barbarin family. Rodriguez said another of them was Valadez, Appellant's half-brother. When Adame started drinking his beer again, he noticed that it tasted like methamphetamine. He told Rodriguez that he was "not cool with that," since he was regularly tested for drugs at work and was not using them. Adame started walking to the store to replace the beer, but the record is not clear whether Rodriguez went with him. Adame testified that he did, but Rodriguez testified that he did not remember much of what happened that day. Eventually, Rodriguez got a call and left the area.
Around 9:30 p.m., Adame continued walking home, drinking a beer and talking to his wife on his cell phone. He took a shortcut through a vacant house, toward a neighbor's breezeway, since it was a quicker way to go and then, he "[didn't] have to see any of the other guys from east side." He looked up and saw Appellant next to him with a gun, "with [his] eyes close up right in front of me." As they stood face to face, Appellant pointed his gun at Adame's head and said, "I got you. That's it, PC. What's up?" Appellant pulled Adame down the breezeway.
Adame suddenly began to run away, and Appellant shot him with a .22-caliber handgun. Adame fell to the ground, staring at Appellant who was still shooting. Adame "just felt like [he] was just floating in the air," felt a burning sensation, and cursed and yelled at Appellant. Appellant held his gun close to Adame's face and head, clicking and clicking, but the gun "didn't go" (misfired or no bullets left). Adame heard Appellant curse and flee.
Adame could not feel his legs and thought he was dying. He dragged himself toward a hiding place in some bushes and found his cell phone, but discovered the screen was cracked and not usable. The phone's redial feature worked and he called home, and told his father what happened. Rushing out, his father called 911 and told the dispatcher when and where he found Adame, who was bleeding heavily. While they waited for paramedics, the 911 dispatcher told Adame's father to ask him whether he knew who shot him. Adame's father repeated to her what Adame told him: "Some guy named Happy, something like that."
Another witness next door heard gunshots and cursing, and also called 911 at 9:30 that evening. When police officers and paramedics arrived at the scene, Adame told an officer that he was shot by "Happy," who was part of the Barbarin family. He did not know Appellant's first name, but described him as a 15-to 17-year-old light-skinned Hispanic male, about 5'10" tall and 180 pounds, wearing all black clothing. Adame was still bleeding while he told officers that "Happy" probably lived in the Barbarins' house on the corner of 11th and Victoria Avenue. He also said that "Happy" made him snort a line of white powder before the shooting.
D. Investigation and Trial
At the scene, investigators found four used .22-caliber casings, a partly empty beer bottle, and bloodshed all around. The day after the shooting, Adame was interviewed at the hospital, where a detective showed him a set of six photographs that included Appellant's high school picture. Adame identified Appellant in the third photo as his attacker. He told the detective that he got into an argument and fistfight with Valadez by asking him about his parents and which one of them was black, explaining to the detectives that he believed it was a "no-no" in the neighborhood (or "shameful") for different races to associate in that way.
Medical evidence showed that Adame had multiple gunshot wounds to his left arm, left leg, and back. One bullet went through his chest and hit his diaphragm, spine, and abdomen. Doctors inserted a titanium plate along his femur, and he is paralyzed from the waist down.
At trial, a gang detective testified that one of his sources told him that Appellant was called "Happy," or "Big Happy." Graffiti by that name was found in local parks in gang territory. A gang expert explained to the jury that one way for a young gang member to earn respect from the gang is to assist in enforcing its rules, by violently targeting its enemies. Of about 500 documented ESR members, about 100 are out and about in the neighborhood at a given time.
Adame knew he was risking his life by testifying at trial, and that "snitching" in any way made him a bigger target to the gang. He spoke up because "I thought I was dying, and I wanted my family to know who done it, because if I would have died, there would have been something else happen." When asked who shot him, he said it was Appellant, and "I will never forget that face, never."
Adame told the jury that he did not call Valadez names or ask him who his father was, although he admitted yelling at the three young men that day. He felt surprised to see Valadez in the neighborhood, due to his non-Hispanic appearance. It was only after the men started to yell at him and call him PC that Adame offered to fight them, and then they left. Adame testified he must have been hallucinating when he told police after the shooting that he had just had an angry argument with Valadez. He admitted that "Happy" did not make him snort a line of drugs, and said he was hallucinating when he said that to police at the scene.
At the hospital, Adame evidently tested positive for methamphetamine, although the record does not show whether such evidence was admitted at trial. The prosecutor brought a motion in limine to exclude the test results, unless used for impeachment purposes, such as if Adame eventually admitted to ingesting a significant amount of drugs that day. No such admission was made and no such impeachment followed. However, Adame was asked whether he remembered testifying at Appellant's preliminary hearing that he did not have any drugs that day. He replied that nobody asked him at that time whether Rodriguez had spiked his beer. The reason why Adame tested positive for drugs is not material or dispositive to the issues on appeal.
In the defense case, Valadez testified that Adame called him a "nigger," but he managed to stay calm, which made Adame even madder. During the scuffle, he saw Adame reach for what could have been a weapon at his belt line. However, Valadez denied seeing Adame carrying a gun. Tapes from Valadez's interview with police after the shooting were then played for the jury, in which Valadez was heard to say he was 100 percent sure that Adame had a black gun during their confrontation.
Rodriguez was subpoenaed and testified as a rebuttal witness. He said he had never seen Appellant or Valadez before. Rodriguez denied seeing other young men at Adame's house that day, or spiking Adame's beer with methamphetamine, or walking to the store with him to buy more beer. Rodriguez said he was a little drunk that day and did not remember much about it.
E. Analysis of Sufficiency of Evidence
Obviously, the jury heard different versions of the relevant circumstances from different participants. Appellant first focuses on Adame's criminal history and suggests that because of it, he could not have testified truthfully. Even if Adame had tried to be truthful, he had admitted to the jury he was hallucinating around the time of the shooting. Appellant argues this shows his recollections must have been adversely affected and unreliable.
Appellant also points out that Adame changed his story in several respects, such as whether his assailant forced him to snort drugs before shooting him. At trial, Adame denied using a racial slur toward Valadez, but Valadez testified otherwise. Rodriguez's rebuttal testimony failed to support Adame's version that Rodriguez told Adame the names of two of the young men that he argued with and fought. Rodriguez denied putting a drug in Adame's beer, or that they went together to get more beer.
Even in light of such inconsistencies, Appellant has not challenged the adequacy of the jury instructions on how to evaluate the evidence offered at trial. The jurors were instructed that they were to judge the credibility or believability of the witnesses, by using their common sense and experience. (CALCRIM Nos. 226, 301, 302.) They were told that the testimony of only one witness could suffice to prove any fact, in light of all the evidence. The trial judge fully explained how to evaluate previous statements that a witness made, how to judge the effect of a felony conviction, and how to consider testimony from eyewitnesses and experts. (CALCRIM Nos. 315, 316, 318, 332.)
It was for the jury to decide which, if any, of the statements of the witnesses it chose to believe. A witness's testimony is not disqualified simply because the jury finds some aspects of that evidence to be untruthful. (People v. Mincey, supra, 2 Cal.4th at p. 444.) The jury was given an accurate picture of the participants from which it could evaluate all the evidence in reaching its conclusions on guilt.
Appellant alternatively argues the evidence was insufficient because there were no other percipient witnesses and no physical evidence that connected him, individually, to the shooting. Even though a gang motive for the crime evidently existed, due to Adame's status as a gang dropout, Appellant looked like some of his relatives who were members. Also, any one of about 100 ESR members around at the time could have done the shooting with such an intent.
The evidence as a whole included Valadez's testimony placing Appellant as one of the young men at the house participating in the crucial confrontation, a few hours before the shooting. The jury heard evidence about Appellant's lifestyle and frequent association with gang members, and it could rationally have accepted the prosecution's theory that Appellant had a gang-related motive to shoot Adame and that he was the one who did so.
The jury heard a lot of background evidence about Adame's credibility or lack thereof. It nevertheless decided to believe his account that he saw Appellant during the verbal confrontation among the three young men, and he recognized Appellant during the shooting. The jury could reasonably have accepted this testimony that Adame remembered what happened, and he was able to identify his attacker and would "never forget that face."
It is not enough for Appellant to argue on appeal that the evidence supports possibilities that the shooter might have been someone else. Together with the showing that a motive existed, and the evidence of a likelihood that Appellant had such an motive, he has not met his burden of showing that his participation in the events before and at the time of the shooting was "physically impossible or inherently improbable." (Young, supra, 34 Cal.4th at p. 1181.) On the entire record, sufficient evidence supports the judgment of guilt.
II
APPELLANT'S CHALLENGE TO HIS SENTENCE UNDER THE
EIGHTH AMENDMENT AND MILLER, SUPRA, 132 S.CT. 2455
A. Background
At sentencing, Appellant was 16 years old. His attorney requested the court to refrain from "imposing any sort of life term" as it would constitute "cruel and unusual punishment." Counsel referred to the immaturity of juvenile brains with respect to their decisionmaking abilities, and he spoke about recent legislation that recognized the effect of those factors (possibly referring to the 2012 enactment of § 1170, subd. (d)(2)(A)(i), permitting petitions for recall and resentencing of juvenile offenders who received LWOP sentences).
The court responded that appeals to leniency were misguided, because the Legislature had set forth mandatory sentences that apply to such crimes and enhancements. The court said, "[T]o the extent that any of you think I have any discretion here, I don't, other than [what defense counsel mentioned, recall of LWOP sentences]. And in order for me to do what he and you are suggesting, I would have to conclude that the sentence required by law here is such that it is a de facto life without parole sentence; and it isn't. When he is eligible for parole, he will be in his early 50's. What a waste of a life."
The court ordered that Appellant be "committed to state prison for the term required by law, that's an indeterminate term of life in prison," with a total commitment of 40 years to life (15 years to life for attempted murder; 25 years to life for the enhancements, served consecutively; §§ 664/187, subd. (a); § 12022.53, subd. (d); § 186.22, subd. (b).) The court explained to Appellant that eventually, he would be allowed to apply for parole, although he would no longer be a young man at that point.
B. Juvenile Sentencing Considerations and Section 3051
The United States Supreme Court and the California Supreme Court have provided clear rules for the sentencing of juveniles. A juvenile cannot be sentenced to capital punishment for any crime. (Roper v. Simmons (2005) 543 U.S. 551, 578-579.) A sentencing court may not prescribe an LWOP sentence to a juvenile for a nonhomicide offense. (Graham v. Florida (2010) 560 U.S. 48, 75 (Graham).) A sentence for a juvenile who committed a nonhomicide offense that consists of a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy is prohibited. (People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero).) Mandatory life without parole sentences for juveniles, even those who commit homicide, are not permitted. (Miller, supra, 132 S.Ct. at p. 2464.) An LWOP sentence for juveniles who committed a homicide offense is allowable only if the court considers the " 'mitigating qualities of youth' " and limits "this harshest possible penalty" to those "rare juvenile offender[s] whose crime[s] reflect[] irreparable corruption." (Id. at pp. 2467, 2469.)
In response to the parameters provided by the courts, the California Legislature passed Senate Bill No. 260, which, among other things, became the current section 3501. Section 3051, subdivision (a)(1), provides that "any prisoner who was under 18 years of age at the time of his or her controlling offense" shall be afforded a "youth offender parole hearing." Juvenile offenders with determinate sentences of any length shall receive a hearing during the 15th year of incarceration. (§ 3051, subd. (b)(1).) Juvenile offenders sentenced to life terms of less than 25 years to life shall receive a hearing during the 20th year of incarceration. (§ 3051, subd. (b)(2).) Juveniles sentenced to an indeterminate base term of 25 years to life will receive a hearing during the 25th year of incarceration. (§ 3051, subd. (b)(3).) The youth offender parole hearing "shall provide for a meaningful opportunity to obtain release." (§ 3051, subd. (e).) Any psychological evaluations and risk assessments used by the Board of Parole Hearings (Board) "shall be administered by licensed psychologists employed by the board and shall take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual." (§ 3051, subd. (f)(1).)
This section was modified in 2015, substituting 23 years of age for 18 years of age, wherever it appears in the section. (Stats. 2015, ch. 471, § 1, effective Jan. 1, 2016.)
With the passage of section 3051, it was unclear what consideration, if any, a sentencing court was to give the qualities of youth before sentencing a juvenile defendant. As we discuss below, our Supreme Court answered this question in Franklin, supra, 63 Cal.4th 261.
B. The Impact of Franklin, supra, 63 Cal.4th 261
Originally, Appellant contended that his mandatory sentence of 40 years to life in prison for this crime, committed while he was a juvenile, amounts to a de facto life sentence that violates the protections of the Eighth Amendment and likewise, article I, section 17 of the California Constitution. In his view, the comments made by the trial court demonstrated that it failed to exercise its existing discretion to consider relevant factors under leading federal and state case law, and we must therefore reverse for resentencing. (Miller, supra, 132 S.Ct. 2455; Graham, supra, 560 U.S. 48, 74; Caballero, supra, 55 Ca1.4th 262.)
Appellant also disagreed with any contention that section 3051, subdivision (b)(3), which by its terms will provide him with an opportunity to seek a parole hearing after 25 years of incarceration, can be construed to supplement or correct a defective sentencing hearing, or to moot any other constitutional problems created at that time. Rather, he argued that under Graham, supra, 560 U.S. at page 75, it is the sentencing court that must take all youth-related factors into account "at the outset," and that a hearing 25 years later before a parole board fails to meet that standard. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1386 (Gutierrez) [quoting Graham, supra, at p. 75, on the issue of when a juvenile offender's incorrigibility, if any, must be evaluated].)
In our original opinion, after a lengthy discussion of federal and California case law (focusing on Miller, supra, 132 S.Ct. 2455; Graham, supra, 560 U.S. 48; and Caballero, supra, 55 Ca1.4th 262) regarding the sentencing of juvenile offenders, we determined that Appellant's sentence was not the equivalent of an LWOP. Our high court instructed us to revisit this issue in light of Franklin, supra, 63 Cal.4th 261.
In Franklin, the defendant was convicted of first degree murder. He was 16 years old when he committed the offense. His sentencing hearing occurred before Miller, supra, 132 S.Ct. 2455 and Caballero, supra, 55 Cal.4th 262 were decided, and the court was obligated by statute to impose two consecutive terms of 25 years to life. On appeal, the defendant challenged the constitutionality of his aggregate term of 50 years to life. (Franklin, supra, 63 Cal.4th at p. 268.)
In Franklin, our high court explored the impact of section 3051 on the sentencing of juveniles. The court observed that the California Legislature passed Senate Bill No. 260, which became effective January 1, 2014, and enacted sections 3051, 3046, subdivision (c) and 4801, subdivision (c). The express purpose of the legislation was to provide a parole eligibility mechanism in accordance with the decisions in these cases. (Franklin, supra, 63 Cal.4th at pp. 276-277; Stats. 2013, ch. 312, § 1; see Historical and Statutory Notes, 51B pt. 2, West's Ann. Pen. Code (2016 supp.) foll. § 3041, pp. 85-86.)
"At the heart of Senate Bill No. 260 was the addition of section 3051, which requires the Board to conduct a 'youth offender parole hearing' during the 15th, 20th, or 25th year of a juvenile offender's incarceration. (§ 3051, subd. (b).) The date of the hearing depends on the offender's ' "controlling offense," ' which is defined as 'the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.' (Id., subd. (a)(2)(B).) A juvenile offender whose controlling offense carries a term of 25 years to life or greater is 'eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions.' (Id., subd. (b)(3).) The statute excludes several categories of juvenile offenders from eligibility for a youth offender parole hearing: those who are sentenced under the 'Three Strikes' law (§§ 667, subds. (b)-(i), 1170.12) or Jessica's Law (§ 667.61), those who are sentenced to life without parole, and those who commit another crime 'subsequent to attaining 23 years of age . . . for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison.' (§ 3051, subd. (h); see Stats. 2015, ch. 471, § 1 [changing the age after which malice aforethought crimes are disqualifying from 18 to 23].)" (Franklin, supra, 63 Cal.4th at pp. 277-278.)
"Section 3051 thus reflects the Legislature's judgment that 25 years is the maximum amount of time that a juvenile offender may serve before becoming eligible for parole. Apart from the categories of offenders expressly excluded by the statute, section 3051 provides all juvenile offenders with a parole hearing during or before their 25th year of incarceration. The statute establishes what is, in the Legislature's view, the appropriate time to determine whether a juvenile offender has 'rehabilitated and gained maturity' (Stats. 2013, ch. 312, § 1) so that he or she may have 'a meaningful opportunity to obtain release' (§ 3051, subd. (e))." (Franklin, supra, 63 Cal.4th at p. 278.)
The court held that the enactment of section 3051 entitled a juvenile defendant to a parole hearing in his 25th year in prison, and thus rendered moot "any infirmity in [his] sentence under Miller." (Franklin, supra, 63 Cal.4th at p. 276.)
The court explained:
"[S]ection 3051 has superseded [the defendant's] sentence so that notwithstanding his original term of 50 years to life, he is eligible for a 'youth offender parole hearing' during the 25th year of his sentence. Crucially, the Legislature's recent enactment also requires the Board not just to consider but to 'give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.' (§ 4801, subd. (c).) For those juvenile offenders eligible for youth offender parole hearings, the provisions of Senate Bill No. 260 are designed to ensure they will have a meaningful opportunity for release no more than 25 years into their incarceration." (Franklin, supra, 63 Cal.4th at p. 277.)
The court determined that section 3051 did not "envision that the original sentences of eligible youth offenders would be vacated and that new sentences would be imposed to reflect parole eligibility during the 15th, 20th, or 25th year of incarceration." (Franklin, supra, 63 Cal.4th at p. 278.)
The court further noted:
"The continued operation of the original sentence is evident from the fact that an inmate remains bound by that sentence, with no eligibility for a youth offender parole hearing, if 'subsequent to attaining 23 years of age' the inmate 'commits an additional crime for which malice aforethought is a necessary element . . . or for
which the individual is sentenced to life in prison.' (§ 3051, subd. (h); Stats. 2015, ch. 471.) But section 3051 has changed the manner in which the juvenile offender's original sentence operates by capping the number of years that he or she may be imprisoned before becoming eligible for release on parole. The Legislature has effected this change by operation of law, with no additional resentencing procedure required." (Franklin, supra, 63 Cal.4th at pp. 278-279.)
The court thus concluded that defendant's constitutional challenge to his sentence was moot. (Franklin, supra, 63 Cal.4th at p. 280.) However, the court made clear that its "mootness holding is limited to circumstances where, as here, section 3051 entitles an inmate to a youth offender parole hearing against the backdrop of an otherwise lengthy mandatory sentence." (Franklin, supra, at p. 280.) Here, we address just such an instance. Appellant received a mandatory 50-years-to-life sentence. Under section 3051, he is entitled to a youth offender parole hearing; thus, by operation of law, his sentence is not functionally equivalent to an LWOP. (Franklin, supra, at p. 286.)
In the parties' supplemental briefs filed after the California Supreme Court transferred the instant matter back to this court for reconsideration in light of Franklin, supra, 63 Cal.4th 261, they both agreed that our high court's holding in Franklin mooted Appellant's challenges to his sentence under the Eighth Amendment and Miller, supra, 132 S.Ct. 2455. We agree.
For the same reasons, we also reject Appellant's alternative argument that the superior court, in violation of Miller, supra, 132 S.Ct. 2455, Graham, supra, 560 U.S. 48; and Caballero, supra, 55 Ca1.4th 262, abused its discretion at the sentencing hearing, because those principles and traditional Eighth Amendment analysis indicate that the trial court could take into account his personal youth-related characteristics, but it declined to do so or erroneously believed that it could not do so. (See Gutierrez, supra, 58 Cal.4th 1354, 1391 [a juvenile offender is entitled to the exercise of informed discretion by the sentencing court].) On the record before us, we find such a challenge to be moot under Franklin, supra, 63 Cal.4th 261 as well.
Although it is clear Franklin, supra, 63 Cal.4th 261 moots most of Appellant's constitutional challenges to his sentence, that case also explained the kinds of information that would be important for the Board to consider, at the youth offender's parole hearing, under section 3051. To this end, our high court explained:
As we discuss below, Franklin, supra, 63 Cal.4th 261 did not address Appellant's equal protection challenge.
"In directing the Board 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)), the statutes also 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 Board's consideration. For example, section 3051, subdivision (f)(2) provides that '[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime . . . may submit statements for review by the board.' Assembling such 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 when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away. In addition, section 3051, subdivision (f)(1) provides that any 'psychological evaluations and risk assessment instruments' used by the Board in assessing growth and maturity 'shall take into consideration . . . any subsequent growth and increased maturity of the individual.' Consideration of 'subsequent growth and increased
maturity' implies the availability of information about the offender when he was a juvenile." (Franklin, supra, at pp. 283-294.)
In Franklin, during the sentencing hearing, the defendant submitted a mitigating statement and a handwritten note from his mother. The superior court, however, deemed such information irrelevant to its pronouncement of the defendant's mandatory sentence, noting " '[a]t no point in the process is anyone, other than the district attorney's office, ever able to really consider that this is a juvenile.' " (Franklin, supra, 63 Cal.4th at pp. 282-283.) The Supreme Court determined that it was "not clear whether [the defendant] had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Franklin, supra, at p. 284.) As such, our high court remanded the matter back to the Court of Appeal with instructions to remand the case to the trial court for the limited purpose of determining whether the defendant was afforded an adequate opportunity to make the appropriate record for a future parole hearing under sections 3051 and 4801. (Franklin, supra, at pp. 286-287.)
In their supplemental briefs, neither party disputed that Franklin, supra, 63 Cal.4th 261 moots Appellant's challenge to his sentence under Miller, supra, 132 S.Ct. 2455 and the Eighth Amendment. Nevertheless, the parties disagree whether the instant matter needs to be remanded to superior court to ascertain whether Appellant received a sufficient opportunity, at the time of his sentencing, "to make a record of information that will be relevant to the Board as it fulfills its statutory obligations under sections 3051 and 4801." (See Franklin, supra, 63 Cal.4th at pp. 286-287.) Appellant maintains that Franklin made clear that sections 3051 and 4801 require the court to provide an opportunity to a defendant to make a record of information helpful to the Board to evaluate the defendant at his or her parole hearing under section 3051. He asserts that he was not provided such an opportunity so we must remand the matter back to the superior court.
In contrast, the People argue we should not remand this matter to the superior court for further proceedings. In support of their position, the People contend that the concerns that prompted the Supreme Court to order remand in Franklin, supra, 63 Cal.4th 261 are not present here. The People observe that, unlike the defendant in Franklin, Appellant's sentencing here took place a year after Miller was decided. Thus, the People contend at Appellant's sentencing hearing, it was clear that juvenile offenders were allowed to present mitigating evidence at sentencing. (See Miller, supra, 132 S.Ct. at p. 2468.)
The People also point out that Appellant was sentenced less than two weeks before section 3051 was to take effect. They argue that section 3051 left no doubt that Miller, supra, 132 S.Ct. 2455 would apply retroactively, so Appellant's counsel must have known that Appellant had the opportunity for the superior court to consider all mitigating circumstances. In addition, the People insist that there is nothing in the record indicating that the superior court was prevented or discouraged from presenting mitigation evidence.
Although the People's arguments are well taken, we are concerned that these arguments do not sufficiently consider how Franklin changed the purpose of a sentencing hearing for juveniles. Sections 3501 and 4801 protect a juvenile in California from any violations of Miller, supra, 132 S.Ct. 2455 at his or her sentencing hearing. (Franklin, supra, 63 Cal.4th at pp. 279-280.) However, even with this protection, a juvenile defendant is entitled to a sufficient opportunity to present information that "will be relevant to the Board as it fulfills its statutory obligations under sections 3051 and 4801." (See Franklin, supra, at pp. 286-287.) Alternatively stated, a court's failure to consider certain mitigation evidence when sentencing a juvenile is remedied by sections 3051 and 4801, but those same code sections require that the juvenile be given an opportunity to present mitigation information relevant to being a juvenile that could impact his or her future parole hearing. We deem such an opportunity to be different than what was required under Miller. Indeed, prior to Franklin, there was no indication that a juvenile's sentencing hearing would be a primary mechanism for providing the Board with relevant information for a parole hearing that could take place 25 years in the future. Under Franklin, we cannot ignore the clear guidance by our high court and assume, simply because Appellant was sentenced post-Miller, he had a sufficient opportunity to make a record that our high court determined sections 3051 and 4801 require. (See Franklin, supra, at pp. 286-287.)
Our cautious approach here is underscored by the record before us. Notably, the People do not point to any specific mitigating information Appellant provided at his sentencing hearing that would bear directly on his future parole hearing under section 3051. Moreover, because of the need to create a record that will provide the foundation for the Board's analysis at a parole hearing several years in the future, a juvenile defendant post-Franklin will have a much greater motivation and need to present extensive information explaining the wide array of youth-related mitigating factors. Such motivation did not exist to the same degree or for the same purpose prior to Franklin, supra, 63 Cal.4th 261.
For these reasons, we will remand this matter for the limited purpose of allowing Appellant to present mitigating information consistent with the dictates of Franklin, supra, 63 Cal.4th 261.
C. Appellant's Equal Protection Challenge
The holding of Franklin, supra, 63 Cal.4th 261, however, does not directly address Appellant's final contention regarding the constitutionality of his sentence. For his last argument, Appellant advances an equal protection claim based on the statutory treatment of juveniles who were expressly sentenced to LWOP. Under section 1170, subdivision (d)(2)(A)(i), those juveniles are entitled to seek recall and resentencing after 15 years of incarceration. Appellant contends that he is similarly situated to juvenile offenders sentenced to LWOP imprisonment, because of the lengthy mandatory sentence he received, and he should receive the benefits of that procedure.
Section 1170, subdivision (d)(2)(A)(ii) exempts from this recall procedure those juveniles sentenced to LWOP for killings of public safety officials (such as the other defendant in Gutierrez (Moffett), or killings involving torture. (Gutierrez, supra, 58 Cal.4th at p. 1385.) --------
Both federal and state constitutional provisions protect the right to equal protection of law. " ' " 'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.' " ' " (People v. Jeha (2010) 187 Cal.App.4th 1063, 1073, italics omitted; People v. McKee (2010) 47 Cal.4th 1172, 1218-1219.)
Appellant seeks to have us construe section 1170, subdivision (d)(2)(A)(i) in a manner that would extend its terms to his situation, based on a strict scrutiny analysis. Doing so might give him an earlier opportunity to seek parole (after 15 years) than that to which he would otherwise be entitled. (See Gutierrez, supra, 58 Ca1.4th 1354, 1373 [if a " ' "statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other construction is equally reasonable" ' "].)
Section 1170, subdivision (d)(2)(A)(i) allows those juvenile offenders who were sentenced to LWOP (but see fn. 5, ante, for exceptions), to seek recall and resentencing after 15 years of incarceration: "When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and resentencing." (§ 1170, subd. (d)(2)(A)(i); italics added.)
Appellant compares section 1170, subdivision (d)(2)(A)(i) to the parole provision that will presumably apply to his case (i.e., § 3051, subd. (b)(3)), and suggests: "[B]oth provisions were enacted in response to evolving Eighth Amendment jurisprudence . . . ," and therefore the aim of both sections is to give those juvenile offenders who were sentenced to life some opportunity to obtain release, by showing they have matured and changed. His arguments are again premised on the contention that he received a de facto LWOP sentence.
As we note above, our high court determined that section 3051 and related statutes in Senate Bill No. 260 effectively reformed lengthy mandatory sentences like Appellant's so that such sentences, by operation of law, could not be considered LWOPs. (See Franklin, supra, 63 Cal.4th at p. 286.) Even though we follow that holding here, we believe it prudent, in the context of Appellant's equal protection argument, to briefly address his contention that he received a de facto LWOP sentence without references to section 3051. We do so to evaluate whether Appellant is similarly situated to those juvenile defendants who were sentenced to an LWOP.
Appellant was first incarcerated at the age of 15, then sentenced at age 16 to a term of 40 years to life in prison. Existing parole provisions would allow his 40-year sentence to be reduced by credits for work time served, that will enable him to seek parole when he reaches age 49 or 50. (§ 2933.1 [15 percent credit toward sentence is possible].) As the trial court appropriately recognized that despite a regrettably long term of future imprisonment, Appellant will still have a decade or two remaining in his normal life expectancy, in which he will be able to seek and possibly obtain release on parole. That fact distinguishes this case from Caballero in which it would have been impossible for the defendant to become eligible for parole within his natural life expectancy (110-year-to-life sentence). (Caballero, supra, 55 Cal.4th at pp. 265-268.) In summary, on the record before us, even without relying on Franklin, supra, 63 Cal.4th 251 or section 3051, we would find that Appellant's sentence is not the functional equivalent of an LWOP. (See People v. Perez (2013) 214 Cal.App.4th 49, 58 [concluding a sentence of 30 years to life for a 16-year-old offender was not an LWOP].)
Appellant argues that the terms of section 1170, subdivision (d)(2)(A)(i), as they are written, infringe upon a fundamental right, his liberty interest. In such a case, "the state bears the burden of establishing not only that it has a compelling interest which justifies the law, but that the distinctions drawn by the law are necessary to further its purpose." (People v. Olivas (1976) 17 Cal.3d 236, 243 (Olivas); italics omitted.) Appellant argues that the statutory scheme impermissibly allows for disparate limitations on parole and/or resentencing opportunities for different classes of life-sentenced juvenile offenders, and states in his brief as follows: "Assuming strict scrutiny applies, respondent cannot sustain its burden of establishing a compelling state interest to exclude from the purview of section 1170, subdivision (d)(2) those juveniles who are sentenced for arguably less serious crimes to indeterminate life sentences with the possibility of parole."
Appellant further argues that even if the alternative "rational relationship" test for equal protection analysis applies, the difference in treatment between these two categories of juvenile offenders should not survive scrutiny under the equal protection clause, in light of the similarity between the statutory purposes of section 1170, subdivision (d) and section 3051, subdivision (b).
To evaluate these arguments, we apply rules of statutory interpretation for resolving questions of law, on de novo review. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 76-77.) We seek to ascertain and carry out the Legislature's intent, by looking first to the words of the statute and giving them the usual and ordinary meaning. (Code Civ. Proc., § 1859; People v. Garcia (2002) 28 Cal.4th 1166, 1172.) In case of ambiguity in the text of the statute, we resort to its legislative history. (Gutierrez, supra, 58 Cal.4th at p. 1369.)
With respect to his equal protection arguments, the plain language of section 1170, subdivision (d)(2)(A)(i) does not support his claim that he is entitled to the benefits described within it. The statutory language does not suggest that the Legislature intended for its provisions, which provide a specific remedy to the population of juvenile offenders who were expressly given LWOP terms, also to become applicable to other types of sentences not mentioned (e.g., "de facto" equivalents of LWOP). If the Legislature had intended that result, it could have so provided. It is not "the province of this court to rewrite the statute to imply an intent left unexpressed [by the Legislature.] . . . The courts may not speculate that the Legislature meant something other than what it said. Nor may they rewrite a statute to make it express an intention not expressed therein." (Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 412.)
Section 3051, subdivision (b)(3) will provide Appellant with parole eligibility after 25 years of incarceration. Alternatively, section 2933.1 may provide him with parole eligibility at a later time. In either case, the sentence imposed will not preclude him from having an opportunity to seek parole within his natural lifespan.
Although section 1170, subdivision (d)(2)(A)(i) and section 3051, subdivision (b) arose out of similar policy concerns, their purposes address differently situated prisoners who were juvenile offenders. (Olivas, supra, 17 Cal.3d 236, 243.) We are not free to add to the language of these sections or to construe them to apply to situations outside of their stated scope. (Mutual Life Ins. Co. v. City of Los Angeles, supra, 50 Cal.3d 402, 412.) We apply the law as it now stands, and do not speculate on whether those provisions may be changed in the future.
Appellant's sentence, even though lengthy, does not have the main characteristic of an LWOP sentence, i.e., that it would preclude him from any opportunity to seek parole within his natural lifespan. He does not show that he is similarly situated to offenders sentenced to LWOP, for purposes of the law challenged, section 1170, subdivision (d)(2)(A)(i). (People v. McKee, supra, 47 Cal.4th 1172, 1218-1219.) We again reject his argument that any remedies he may have under section 3051, subdivision (b) or section 2933.1 are inadequate because they will involve administrative action. The initial judicial sentencing that he received does not offend the Eighth Amendment or equal protection principles.
DISPOSITION
The judgment is affirmed. We remand the matter back to the superior court for the limited purpose of providing Appellant with an adequate opportunity to make a record of information that will be relevant to the Board as it fulfills its statutory obligations under sections 3051 and 4801 as prescribed by Franklin, supra, 63 Cal.4th at pages 286 through 287.
HUFFMAN, Acting P. J. WE CONCUR:
NARES, J.
HALLER, J.