Opinion
E067165
10-10-2018
THE PEOPLE, Plaintiff and Respondent, v. TRAVIS LEE HAWKINS et al., Defendants and Appellants.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Travis Lee Hawkins. Post-Conviction Justice Project, University of Southern California, Gould School of Law, Heidi L. Rummel, and Michael J. Brennan for Defendant and Appellant Ashley Gonzalo Gallegos. Milbank, Tweed, Hadley & McCloy LLP, Alexander Kirkpatrick for Defendant and Appellant Ashley Gonzalo Gallegos. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson. Allison V. Hawley, and Christopher Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR58553) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Dismissed. REQUEST FOR JUDICIAL NOTICE is granted. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant Travis Lee Hawkins. Post-Conviction Justice Project, University of Southern California, Gould School of Law, Heidi L. Rummel, and Michael J. Brennan for Defendant and Appellant Ashley Gonzalo Gallegos. Milbank, Tweed, Hadley & McCloy LLP, Alexander Kirkpatrick for Defendant and Appellant Ashley Gonzalo Gallegos. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson. Allison V. Hawley, and Christopher Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
In 1994, a group of four males — including defendant Travis Lee Hawkins (then aged 16) and defendant Ashley Gallegos (then aged 17) —participated in a kidnapping and carjacking that culminated in a fatal shooting. Neither Hawkins nor Gallegos was the actual killer; based on the evidence, reasonable minds could differ as to whether they had the intent to kill, but a jury evidently found that they did.
In 1997, both defendants were sentenced to life without the possibility of parole (LWOP). In 2012, however, in Miller v. Alabama (2012) 567 U.S. 460 (Miller), the United States Supreme Court ruled that a defendant who was a juvenile at the time of the crime (juvenile) cannot be sentenced to LWOP unless — after considering the ways in which children are different from adults — the sentencing court determines that the particular juvenile is irreparably corrupt and permanently incorrigible.
Defendants filed habeas petitions, asserting that they had been sentenced to LWOP in violation of Miller. The People conceded the point. Thus, the trial court held a hearing at which it reconsidered the LWOP sentence in light of Miller and its progeny. It concluded, however, that defendants were indeed irreparably corrupt and that LWOP was the appropriate sentence.
Defendants appeal. They contend that the trial court applied an incorrect legal standard and that, under the correct legal standard, its ruling was not supported by substantial evidence. The People respond that the enactment of Senate Bill No. 394 (2017-2018 Reg Sess.) (SB 394) — which provides that juveniles sentenced to LWOP are nevertheless entitled to a parole hearing in their 25th year of imprisonment — remedies any Miller error and moots the appeal.
We agree that the appeal is moot. Hence, we will dismiss.
I
LEGAL BACKGROUND
In California, a defendant aged 16 or 17 at the time of the crime who is found guilty of first degree murder with special circumstances must be sentenced to either LWOP or 25 years to life. (Pen. Code, § 190.5, subd. (b).) The trial court's choice between the two is discretionary. (Ibid.)
In 2012, in Miller v. Alabama, supra, 567 U.S. 460, the United States Supreme Court held the mandatory imposition of an LWOP sentence on a juvenile constitutes cruel and unusual punishment in violation of the Eighth Amendment. (Id. at pp. 465, 469-480.) It further held that even the discretionary imposition of an LWOP sentence is unconstitutional, unless the trial court "take[s] into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." (Id. at p. 480; see also id. at p. 483.) It indicated that LWOP is reserved exclusively for "' . . . the rare juvenile offender whose crime reflects irreparable corruption.' [Citations.]" (Id. at pp. 479-480; see also Montgomery v. Louisiana (2016) ___ U.S. ___, ___ [136 S.Ct. 718, 734] [Miller . . . bar[red] life without parole . . . for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility."] (Montgomery).)
Thereafter, in People v. Gutierrez (2014) 58 Cal.4th 1354, the California Supreme Court construed Miller to require that, before imposing a discretionary LWOP sentence on a juvenile, a trial court must consider five specific factors:
1. The defendant's "'chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences.' [Citation.]" (People v. Gutierrez, supra, 58 Cal.4th at p. 1388.)
2. The defendant's "'family and home environment.'" (People v. Gutierrez, supra, 58 Cal.4th at p. 1388.) "Relevant 'environmental vulnerabilities' include evidence of childhood abuse or neglect, familial drug or alcohol abuse, lack of adequate parenting or education, prior exposure to violence, and susceptibility to psychological damage or emotional disturbance. [Citation.]" (Id. at pp. 1388-1389.)
3. "'[T]he circumstances of the homicide offense, including the extent of [the juvenile defendant's] participation in the conduct and the way familial and peer pressures may have affected him.' [Citation.]" (People v. Gutierrez, supra, 58 Cal.4th at p. 1389.)
4. "[W]hether the offender 'might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. [Citations.]" (People v. Gutierrez, supra, 58 Cal.4th at p. 1389.)
5. "'[T]he possibility of rehabilitation.' [Citation.]" (People v. Gutierrez, supra, 58 Cal.4th at p. 1389.)
II
PROCEDURAL BACKGROUND
In 1996, after a jury trial, defendants were found guilty of murder (Pen. Code, § 187, subd. (a)), kidnapping during a carjacking (Pen. Code, § 209.5), and carjacking (Pen. Code, § 215). The jury found robbery-murder and kidnapping-murder special circumstances to be true. (Pen. Code, former § 190.2, subds. (a)(17)(i), (ii); see now Pen. Code, § 190.2, subds. (a)(17)(A), (B).) With respect to each count, the jury found that a principal was armed with a firearm. (Pen. Code, § 12022, subd. (a)(1).)
In 1997, defendants were sentenced to life without the possibility of parole, plus nine years. In November 1999, we affirmed the judgment. (People v. Varela (Nov. 15, 1999, E020144) [nonpub. opn].)
Hawkins has asked us to take judicial notice of our files and records in the previous appeal. We hereby grant this request.
In 2012, Miller was decided. In 2014 (Hawkins) and 2015 (Gallegos), defendants filed habeas petitions, asserting that they had been sentenced to LWOP in violation of Miller. The People conceded the point. Accordingly, in 2015, we returned the case to the trial court for resentencing.
In October 2016, the trial court held a hearing at which evidence relating to the Gutierrez factors was introduced. It then found that both defendants' crimes reflected irreparable corruption and that the original LWOP sentences were appropriate.
III
MOOTNESS
On January 1, 2018, while this appeal was pending, SB 394 went into effect. (Stats. 2017, ch. 684, § 1.5, p. 5123.)
As relevant here, it amended Penal Code section 3051 so as to provide that "[a] person who was convicted of a[n] . . . offense that was committed before the person had attained 18 years of age and for which the sentence is life without the possibility of parole shall be eligible for release on parole by the board during his or her 25th year of incarceration . . . ." (Pen. Code, § 3051, subd. (b)(4).)
Penal Code section 3051 further provides: "The board shall conduct a youth offender parole hearing to consider release." (Pen. Code, § 3051, subd. (d).) At the hearing, "the board shall act in accordance with subdivision (c) of [Penal Code s]ection 4801" (Pen. Code, § 3051, subd. (d)), which provides: "When a prisoner committed his or her . . . offense . . . when he or she was 25 years of age or younger, the board, in reviewing a prisoner's suitability for parole . . . , shall give great weight to the diminished culpability of youth 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." (Pen. Code, § 4801, subd. (c).) "The youth offender parole hearing to consider release shall provide for a meaningful opportunity to obtain release." (Pen. Code, § 3051, subd. (e).)
While this case was pending, our Supreme Court granted review in People v. Arzate (2016) 2016 Cal. App. Unpub. LEXIS 7115, rev. granted Jan. 25, 2017, S238032 (Mendoza). The issue presented was whether, under Miller and Montgomery, there is "a presumption against a sentence of life imprisonment without possibility of parole for juvenile offenders . . . ." (People v. Arzate (Jan. 25, 2017, S238032) ___ Cal.5th ___ .)
Two defendants petitioned for review, Arzate and Mendoza, but only Mendoza's petition was granted. Thus, the case was later retitled People v. Mendoza. (People v. Arzate (May 18, 2017, S238032) ___ Cal.5th ___ .)
It also granted review in People v. Padilla (2016) 4 Cal.App.5th 656, rev. granted Jan. 25, 2017, S239454 (Padilla).) There, the issue presented was whether, under Miller and Montgomery, a trial court must "determine that the crime reflects 'irreparable corruption resulting in permanent incorrigibility' before imposing life without parole" on a juvenile offender. (People v. Padilla (2017) 212 Cal.Rptr.3d 620.)
In November 2017, however, in both Mendoza and Padilla, the Supreme Court called for supplemental briefing on the impact, if any, of SB 394. (People v. Mendoza (Nov. 1, 2017, S238032) ___ Cal.5th ___ ; (People v. Padilla (Nov. 1, 2017, S239454) ___ Cal.5th ___ .)
Finally, in June 2018, it dismissed both cases, without opinion, "as moot in light of Senate Bill No. 394 . . . ." (People v. Mendoza (June 13, 2018, S238032) ___ Cal.5th ___ ; People v. Padilla (June 13, 2018, S239454) ___ Cal.5th ___ .)
In the wake of the Supreme Court's call for supplemental briefing, we, too, called for supplemental briefing in this case regarding the impact, if any, of SB 394. Having now considered that supplemental briefing, we conclude that this case is likewise moot.
"[A]n issue is moot if 'any ruling by [the] court can have no practical impact or provide the parties effectual relief.' [Citation.]" (People v. J.S. (2014) 229 Cal.App.4th 163, 170.) Here, defendants contend that they should have been sentenced to 25 years to life. Under SB 364, however, their LWOP sentence has, in effect, been transmuted to a 25-years-to-life sentence.
People v. Franklin (2016) 63 Cal.4th 261 is almost on point. There, the juvenile defendant argued that his mandatory sentence of 50 years to life was the functional equivalent of an LWOP sentence and therefore unconstitutional under Miller. (Franklin, supra, at p. 268.) After he was sentenced, however, Senate Bill No. 260 (2013-2014 Reg. Sess.) (SB 260) went into effect. (Franklin, supra, at p. 276.) Under its provisions, the defendant became entitled to a parole hearing during his 25th year in prison; it also "require[d] 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.' [Citation.]" (Id. at p. 277.)
The Supreme Court concluded that the appeal was moot. (People v. Franklin, supra, 63 Cal.4th at pp. 279-280.) It explained that, under SB 260, "Franklin is now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration. Such a sentence is neither LWOP nor its functional equivalent. Because Franklin is not serving an LWOP sentence or its functional equivalent, no Miller claim arises here." (Ibid.)
While Franklin speaks in terms of mootness, it also stands for the proposition that SB 360 defeated a Miller claim on the merits, because the possibility of a timely parole remedies any Miller violation. The Supreme Court later characterized Franklin as holding "that an inmate eligible for a youth offender parole hearing is not serving the 'functional equivalent' of life without parole, meaning that his or her sentence does not implicate Miller and its strictures." (In re Kirchner (2017) 2 Cal.5th 1040, 1049, fn. 4.)
Here, identically, because defendants are now effectively serving a sentence of 25 years to life, the claimed error has been eliminated.
Defendants, however, assert that their appeal is not moot, for three reasons.
The same arguments were made in opposition to dismissal in Mendoza and Padilla. The Supreme Court nevertheless dismissed those cases as moot. However, because the dismissal was by summary order, rather than by written opinion, it is not a "decision" and hence not binding precedent. (See Cal. Const., art. VI, § 14; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see also Kowis v. Howard (1992) 3 Cal.4th 888, 894-895.)
First, they argue that the Legislature could amend or eliminate the relevant provisions of SB 394. It would seem, however, that this was equally true of SB 260 in Franklin; nevertheless, the Supreme Court held that SB 260 mooted the appeal. "'"A judicial tribunal ordinarily may consider and determine only an existing controversy, and not a moot question or abstract proposition . . . . [As] a general rule it is not within the function of the court to act upon or decide a moot question or speculative, theoretical or abstract question or proposition, or a purely academic question, or to give an advisory opinion on such a question or proposition . . . ."' [Citation.]" (In re I.A. (2011) 201 Cal.App.4th 1484, 1490.) The speculative possibility of a future amendment presents no actual controversy for this court to decide. (Los Angeles County v. Butcher (1957) 155 Cal.App.2d 744, 747 [appeal from denial of injunction against sales of land parcels was moot because all parcels had been sold; possibility that some purchasers might default, which would allow the defendants to resell their parcels, was too speculative to prevent mootness].)
Second, they point out that "[c]ourts . . . have discretion to resolve appeals that are technically moot if they present important questions affecting the public interest that are capable of repetition yet evade review. [Citation.]" (In re J.P. (2017) 14 Cal.App.5th 616, 623.) In light of SB 394, however, the questions presented are not likely to recur.
Third, they argue that the asserted error may have adverse collateral consequences for them. (See People v. Delong (2002) 101 Cal.App.4th 482, 487 ["[A] mootness inquiry may also include consideration of whether prejudicial consequences or disadvantageous collateral consequences can be ameliorated by a successful appeal."].) Specifically, Gallegos claims that he could be considered for parole as much as two years earlier if, instead of coming up for parole under SB 394, he is resentenced to 25 years to life. Both defendants claim that their LWOP status has negative "practical effects" on their conditions of confinement, including their housing and their access to rehabilitative services. They also claim they will be less able to earn post-conviction credit under Proposition 57. And finally, they claim that the LWOP "label" is stigmatizing and may skew the Board's perception of their dangerousness at any future parole hearing.
This argument overlooks the fact that, as mentioned, SB 394 remedies the constitutional violation; these collateral consequences are not, in themselves, unconstitutional. At oral argument, counsel tried to recast them as errors of state law, but they are not. California still has two sentencing options for a juvenile found guilty of first degree special circumstances murder: a nominal LWOP sentence or 25 years to life. (Pen. Code, § 190.5.) Under SB 394, such a so-called LWOP sentence does not preclude the defendant from being considered for parole after 25 years. This is sufficient to eliminate the constitutional violation. "A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. [Citation.]" (Montgomery v. Louisiana, supra, 136 S.Ct. at p. 736.) We may assume, without deciding, that in all of the other respects that defendants have identified, an LWOP sentence has disadvantages as compared to a sentence of 25 years to life. These disadvantages, however, are not errors of state law; to the contrary, they result from the interplay of other state laws with the new nominal LWOP sentence created by SB 394. And Miller no longer restricts the trial court's discretion to select such a sentence.
We therefore conclude that the appeal is moot.
IV
DISPOSITION
The appeal is dismissed as moot in light of SB 394.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. CODRINGTON
J.