Opinion
D072864
03-27-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSUE AGUSTIN MAGALLANES et al., Defendants and Appellants.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant, Josue Agustin Magallanes. Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant, Roland Jimenez Arcos. Xavier Becerra, Attorney General, Gerald A. Engler and Julie l. Garland, Assistant Attorneys General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for the 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1200051) APPEALS from judgments of the Superior Court of Riverside County, Jeffrey J. Prevost, Edward D. Webster, Judges. Conditionally reversed and remanded with directions. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant, Josue Agustin Magallanes. Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant, Roland Jimenez Arcos. Xavier Becerra, Attorney General, Gerald A. Engler and Julie l. Garland, Assistant Attorneys General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for the Plaintiff and Respondent.
A jury convicted defendants Josue Agustin Magallanes and Roland Jimenez Arcos of first degree murder (Pen. Code, § 187, subd. (a); count 1) and active participation in a criminal street gang (§ 186.22, subd. (a); count 6), acquitting them of four charges of attempted murder. The jury found true as to count 1 that defendants committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(2)(C)), that each defendant "personally and intentionally discharged a firearm and proximately caused great bodily injury or death to another person who was not an accomplice within the meaning of . . . section 12022.53, subdivision (d)," and that each defendant "was a principal and at least one principal personally and intentionally discharged a firearm and proximately caused great bodily injury or death to another person, not an accomplice within the meaning of . . . section 12022.53, subdivision (d), and subdivision (e) . . . ." In addition to ordering payment of restitution, fines and fees the trial court sentenced Magallanes and Arcos each to indeterminate prison terms of 52 years to life: 25 years to life on count 1, a consecutive 25-year-to-life term for the personal firearm discharge enhancement, and a consecutive two-year midterm on count 6. The abstracts of judgment show stayed sentences on the gang enhancements, though the court did not mention those enhancements at the sentencing hearing.
Undesignated statutory references are to the Penal Code.
Both Magallanes and Arcos contend this court must strike the count 1 enhancement for personal use of a firearm causing great bodily injury because the amended information did not allege that enhancement. Both contend that their count 6 consecutive sentences must be stayed under section 654. Magallanes separately contends his judgment should be modified to award him 1,487 days of presentence custody credits. Arcos separately contends we must remand the case for a hearing on factors bearing on his future parole hearing under Miller v. Alabama (2012) 567 U.S. 460 and People v. Franklin (2016) 63 Cal.4th 261 (Franklin). Arcos further asks us to correct errors in his abstract of judgment and strike a nunc pro tunc order imposing a stayed sentence on a nonexistent prior conviction. In supplemental briefing, Magallanes and Arcos contend their cases must be remanded so that the trial court may exercise its discretion under recently amended section 12022.53, subdivision (h) to strike one or more of their firearm enhancements. In second supplemental briefs filed after oral arguments in this matter, they further contend that under the California Supreme Court's recent decision in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), their judgments should be conditionally reversed and remanded for the juvenile court to conduct juvenile transfer hearings under Welfare and Institutions Code section 707.
The People concede that Proposition 57 retroactively entitles defendants to transfer hearings in juvenile court, and that the matter must be conditionally reversed and remanded to the juvenile court for such hearings. As for defendants' challenges to their adult convictions, the People maintain that defendants forfeited their pleading challenge to the section 12022.53, subdivision (d) gun enhancements, but argue the enhancements were nevertheless properly pleaded. They argue Arcos had sufficient opportunity to present information relevant to his future youth offender hearing. The People concede that defendants' count 6 sentences must be stayed under section 654, that Magallanes's judgment should be modified to award him the requested custody credits, and that the abstracts of judgment should be amended to delete reference to "Three Strikes" laws on which the trial court did not rely. They argue the court inadvertently failed to impose a sentence on the 10-year gang enhancement as to both defendants; the People argue the court should impose sentence on that enhancement and clarify its intent in issuing its postsentencing nunc pro tunc order, which they assert incorrectly referred to the gang enhancement as a prior conviction. On defendants' first supplemental request that the court exercise its discretion under section 12022.53, subdivision (h) to strike or dismiss their firearm enhancements, the People concede the law applies retroactively to nonfinal judgments under People v. Francis (1969) 71 Cal.2d 66, but maintain no purpose would be served by a remand in defendants' cases because the superior court would not exercise its discretion to strike the enhancements.
Under Lara, supra, 4 Cal.5th 299, we conditionally reverse defendants' convictions and sentences and remand their cases to the juvenile court for a determination of their fitness for treatment within the juvenile justice system. (Welf. & Inst. Code, § 707.) If the court finds juvenile treatment is appropriate, the juvenile court is ordered to treat defendants' convictions as juvenile adjudications and impose an appropriate juvenile disposition after a dispositional hearing. If the defendants are found unfit for juvenile court treatment, their convictions will be reinstated consistent with this opinion. As to those convictions, we hold the first amended information adequately put defendants on notice they would be subject to the section 12022.53, subdivision (d) personal use firearm enhancement on count 1, and that they in any event forfeited any challenge by failing to object to jury instructions and verdict forms on the matter. We accept the People's concessions as to count 6, Magallanes's custody credits, and to deleting references to sentencing provisions under the Three Strikes law. We hold the trial court cannot lawfully impose the 10-year gang enhancement on either defendant, but in accordance with section 186.22, subdivision (b)(5), defendants are subject to a 15-year minimum eligible parole date. We hold both Arcos and Magallanes are entitled on resentencing to make a record of information relevant to their eventual youth offender parole hearing under Franklin, supra, 63 Cal.4th 261, and the court pursuant to section 12022.53, subdivision (h) shall exercise its discretion as to both defendants under section 1385 to strike or again impose one or more of their firearm enhancements on count 1. The judgments are otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants do not challenge the sufficiency of the evidence of their convictions or the related enhancements, so we briefly summarize the background facts of the offense and enhancements. On New Year's Eve in 2011, Angela P. walked with some of her children and their friends to a convenience store to purchase food. The group included Angela P., her two minor sons and daughter, and Angela P.'s daughter's boyfriend Marcello Moscozo. As they walked, they came upon a white Cadillac driven by a Hispanic female. Angela P. heard a male in the car, Johnathan Villafan, shout "Brownstown," which was the name of a local criminal street gang of which Johnathan Villafan was a member. Angela P. also heard someone from the car say another derogatory term relating to a rival gang. She told everyone to stay quiet and to keep walking. Johnathan Villafan ran to the home of a fellow gang member, Raymond Gallardo, who then went to the convenience store and told one of Angela P.'s sons that Gallardo's friends were going to shoot them.
Angela P. and the others started walking home when they were approached by a truck driven by Erik Godina, who was then a Brownstown gang member. In the truck with Godina were Magallanes, Arcos and Jesse Villafan, also Brownstown gang members. One of the passengers, who Angela P. later identified as Magallanes, threatened Angela P. with a gun after invoking the name Brownstown but then reentered the truck, which left. After Angela P.'s group ran and scattered throughout a trailer park, Godina and the other gang members returned in the truck. Magallanes exited and began shooting at Angela P. and the others. Finally, Moscozo pushed Angela P. aside and ran toward Magallanes. Moscozo's body was later found near a fence in the trailer park; he died from multiple gunshots to his head, neck and back.
Godina, who had entered into a plea agreement in exchange for his testimony, testified that after the shooting, Magallanes admitted he ran after an individual in the trailer park and shot him in the back and head several times.
DISCUSSION
I. Section 12022.53, Subdivision (d) Personal Use Firearm Enhancement on Count 1
A. Background
Count 1 of the first amended information charged Magallanes and Arcos with murder, and alleged that in the commission of the murder defendants "were principals and at least one principal personally and intentionally discharged a firearm and proximately caused great bodily injury and death to another person, not an accomplice, within the meaning of . . . sections 12022.53, subdivision (d), and subdivision (e) . . . ."
After Magallanes had examined his first witness in the presentation of his defense case, the court advised counsel it would discuss the prosecutor's printed jury instructions the next morning. The following morning, the court stated it would instruct the jury with CALCRIM No. 1402 as to a principal's use of a firearm. It then brought up CALCRIM No. "3149, personally use firearm [sic]." Neither defendants' counsel objected, and the court stated, "[CALCRIM No.] 3149 will be given as drafted."
Accordingly, CALCRIM No. 3149 was read to the jury in part as follows: "If you find the defendant guilty of the crime charged in Count 1, you must then decide whether the People have proved the additional allegation that the defendant personally and intentionally discharged a firearm during that crime causing death. [¶] To prove this allegation, the People must prove that: [¶] First, the defendant personally discharged a firearm during the commission of that crime; [¶] Second, the defendant intended to discharge the firearm; [¶] Third, the defendant's act caused a death of a person. [¶] . . . An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. [¶] In deciding whether a consequence is . . . natural and probable consider all the circumstances established by the evidence. The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find the allegation has not been proved." The court separately instructed the jury with CALCRIM No. 3148 as to the enhancement for a principal's discharge of a firearm.
During closing argument, the prosecutor said without objection: "There are several allegations that are attached to each count. For the—Count 1 which is the murder, there is a firearm allegation. And, again, the firearm allegation is easy. Defendant discharged a firearm during the crime. He intended to discharge the firearm and the act caused death to a person. Clearly this instruction, this allegation is satisfied.
The prosecutor distinguished this instruction from that pertaining to a principal using a firearm: "There is a final allegation with respect to Count 1 and that is 12022.53[, subdivision] (e). This one is a little tricky. But what it basically tells you—and I'll go over the instruction in whole. What it basically tells you is if a principal—if someone involved in the crime used a firearm and caused great bodily injury or death and the crime was committed for the benefit of or in association with the gang, then all of the individuals are on the hook for the gun. [¶] So you have one shooter who kills Marcello. The aider and abettor or the second person that is involved is on the hook for the gun as well if you find that the crime was committed for the benefit of or in association with the gang. [¶] A little tricky. It means both are liable for the gun regardless of who fired the shot that killed. This is the instruction: Someone who was a principal in the crime personally and intentionally discharged a firearm causing death. A person is a principal in a crime if he directly commits the crime or aids and abets someone else. [¶] Element one: Someone who was a principal in the crime personally and intentionally discharged a firearm during the commission or attempted commission of murder. Obviously that happened. That person intended to discharge a firearm. It wasn't an accident. The person's act caused the death of another person. Again, we know that happened in this situation. The question is who did it, not what was done."
Before sending the jurors to deliberate, the court went over some of the verdict forms, explaining that as to count 1, the jury's "first finding would be with respect to the allegation under section 12022.53, subdivision (d) of the Penal Code, and you would be asked to find whether that is true or not true." The jury was given verdict forms as to both the personal use and principal firearm enhancements, and found as to both defendants not only that they were principals involved in the discharge of a firearm, but also that the defendants "personally and intentionally discharged a firearm and proximately caused great bodily injury or death to another person, not an accomplice within the meaning of Penal Code section 12022.53, subdivision (d) . . . ." B. Contentions
Defendants contend the jury's finding on the section 12022.53, subdivision (d) personal use of a firearm enhancement must be stricken because that enhancement was not alleged in the first amended information, as required by section 12022.53, subdivision (j), which specifies in part that for the penalties in section 12022.53 to apply, "the existence of any fact required under subdivision . . . (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (See also § 1170.1, subd. (e) ["All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact"].) Arcos argues this court should alternatively modify the judgment and substitute a finding as to a principal's discharge of a firearm under subdivision (e)(1) of section 12022.53. Relying on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) and other analogous cases, defendants maintain that in addition to the statutory requirement, they have due process rights to fair notice of the sentence enhancement allegations used to increase punishment for their crimes. Magallanes argues defendants did not forfeit the issue by failing to demur to the information or otherwise object; though he acknowledges that the California Supreme Court in People v. Houston (2012) 54 Cal.4th 1186 (Houston) found such a forfeiture where an indictment did not comply with pleading requirements, he argues Houston is distinguishable and is limited to its unique facts.
The People respond that Houston is on point and compels a finding of forfeiture. They further argue that the operative information properly pleaded the section 12022.53, subdivision (d) personal use firearm enhancement as to both defendants even though it referred to them as principals; that defendants were put on notice when the People cited the statute and alleged that "either one or both of them—'at least one principal'—personally used a gun in the commission of the murder." C. Analysis
It is settled that defendants have a due process right to fair notice of enhancement allegations used to increase punishment for their charged crimes. (Houston, supra, 54 Cal.4th at p. 1227; People v. Tennard (2017) 18 Cal.App.5th 476, 487.) However, we conclude the first amended information did give them adequate notice that they faced punishment for personal use of a firearm on count 1 under section 12022.53, subdivision (d). It was sufficient that the information pleaded the enhancement in the statutory language, i.e., by identifying it by number. (See, e.g., § 952 [sufficient charges "may be in the words of the enactment describing the offense" or "in any words sufficient to give the accused notice of the offense of which he [or she] is accused"]; Mancebo, supra, 27 Cal.4th at p. 740 [defendant did not receive notice of One Strike sentencing where information did not allege multiple victim circumstance "nor was its numerical subdivision (subd. (e)(5)) ever referenced in the pleadings"; implying notice would be provided by a reference to the statute in connection with the counts], see also id. at p. 745; People v. Bugg (1962) 204 Cal.App.2d 811, 814 [amended information charging crime of receiving stolen property "substantially in the language of the statute" was sufficient].) Thus, though the prosecution need not include specific statutory references for enhancement allegations (People v. Fialho (2014) 229 Cal.App.4th 1389, 1397), certainly where the People do expressly reference by number a specific sentencing enhancing statute in connection with a charged offense, the defendant is on notice to defend against such an allegation, and is informed that if he is convicted of the underlying charged offense, the court would impose an enhanced sentence under the specified statute. "[A] defendant's due process right to be informed of the charges is satisfied when the charging document affords the defendant 'a reasonable opportunity to prepare and present a defense' and the defendant 'is not taken by surprise by the evidence offered at trial.' " (People v. Tennard, at p. 487, quoting People v. Ramirez (2003) 109 Cal.App.4th 992, 999.)
Not only did the information specifically cite section 12022.53, subdivision (d) as to count 1, we agree with the People that it also in substance alleged factually that at least one or both of the defendants "personally and intentionally discharged a firearm and proximately caused great bodily injury and death to another person . . . ." It was of no moment that the paragraph referenced both 12022.53, subdivision (d), and subdivision (e) of that statute, and labelled the defendants "principals." Those references do not change the fact that the first amended information factually alleged the subdivision (d) personal and intentional gun use enhancement as to count 1.
Even if we did not reach that conclusion, we would hold that under the circumstances, because defendants did not raise an objection in the trial court after discussing jury instructions and verdict forms including the allegation, they forfeited their pleading challenge under Houston, supra, 54 Cal.4th at p. 1228. Contrary to Magallanes's arguments, Houston compels such a finding. In Houston, the indictment did not comply with the requirements of section 664, which required the accusatory pleading to charge an attempted murder was willful, deliberate and premeditated so as to permit imposition of a life sentence. (Ibid.) The trial court had expressly noted the defendant would be sentenced to life imprisonment if convicted; it asked the parties during the defense case to say if there were any problems with the proposed jury instruction and verdict forms; told the parties a week later the verdict form would include deliberate and premeditated attempted murder as a special finding; and instructed the jury to determine whether the attempted murders were willful, deliberate, and premeditated, indicating a special finding on the question appeared on the verdict form. (Houston, supra, 54 Cal.4th at p. 1227.) The Supreme Court concluded the defendant had forfeited the claim: "Had defendant raised a timely objection to the jury instructions and verdict forms at any of these stages of the trial on the ground that the indictment did not allege that the attempted murders were deliberate and premeditated, the court could have heard arguments on whether to permit the prosecutor to amend the indictment. . . . On the facts here, defendant received adequate notice of the sentence he faced, and the jury made an express finding that the attempted murders were willful, deliberate, and premeditated. A timely objection to the adequacy of the indictment would have provided an opportunity to craft an appropriate remedy. Because defendant had notice of the sentence he faced and did not raise an objection in the trial court, he has forfeited this claim on appeal." (Id. at pp. 1227-1228, citation omitted.)
The circumstances here similarly justify the conclusion that defendants have forfeited their claim that the section 12022.53, subdivision (d) personal gun use allegation in count 1 should be stricken. The instructions to the jury and the verdict forms provided defendants with adequate notice that they faced additional punishment for section 12022.53, subdivision (d) personal use of a firearm with respect to count 1. As in Houston, "[b]ecause defendant[s] had notice of the sentence [they] faced and did not raise an objection in the trial court, [they have] forfeited this claim on appeal." (Houston, supra, 54 Cal.4th at p. 1228.)
II. Stay of Sentence on Count 6 Convictions
Defendants contend the trial court erred by failing to stay under section 654 the consecutive two-year midterm sentences on their count 6 convictions for active participation in a criminal street gang (§186.22, subd. (a)). They point out that the court in People v. Mesa (2012) 54 Cal.4th 191 held section 654 precludes multiple punishment for the substantive gang crime and the underlying felony used to satisfy the elements of gang participation, when both convictions are based on the same act. The People concede that the sentences on count 6 should have been imposed but stayed under Mesa.
We agree. The substantive gang crime in count 6 could only have been based on Moscozo's murder, as the jury acquitted defendants of the other attempted murder charges. The trial court here instructed the jury it could convict defendants of active gang participation if it found they promoted, furthered, or assisted in felonious criminal conduct by other gang members, then defined that felonious conduct as murder or attempted murder, and the prosecution in turn argued "if you find the defendant is guilty, this [count 6 active participation] charge is easy and they're guilty of that as well." Under Mesa, defendants may be punished only for one, but not both offenses. (People v. Mesa, supra, 54 Cal.4th at pp. 200-201.) Accordingly, under section 654 the sentences imposed on count 6 must be stayed.
III. Request to Remand for Hearing on Youth-Related Factors
Both Arcos and Magallanes were 17 years old at the time of the murder. Arcos contends this court must remand his case to the trial court so that he can make a record of mitigating evidence relevant to his eventual youth offender parole hearing under sections 3051 and 4801, which were intended to bring juvenile sentencing in conformity with United States and California Supreme Court decisions extending Eighth Amendment protections to juvenile offenders in certain circumstances. (See People v. Franklin, supra, 63 Cal.4th at p. 268; In re Trejo (2017) 10 Cal.App.5th 972, 980.) As to offenders who have committed crimes carrying a term of 25 years to life or greater and are not otherwise excluded from its terms, section 3051 entitles them to a "youth offender parole hearing" 25 years into their prison sentence. (§ 3051, subd. (b)(3).)
In People v. Franklin, supra, 63 Cal.4th 261 the California Supreme court considered whether a juvenile offender's constitutional challenge to his 50-year-to-life sentence was mooted by sections 3051 and 4801, which had then been recently enacted. (Id. at p. 268.) In 2012, after the Franklin defendant's sentencing hearing (id. at pp. 268, 282), the United States Supreme Court held that the Eighth Amendment to the federal Constitution prohibited mandatory life without parole sentences for juveniles who commit homicide (Miller v. Alabama, supra, 567 U.S. at p. 469) and the California Supreme Court held that the categorical ban on life without parole sentences for juvenile nonhomicide offenders applied to the functional equivalent of such a sentence (People v. Caballero (2012) 55 Cal.4th 262, 268). Franklin concluded the statutes enacted following those decisions were "[c]onsistent with constitutional dictates" and rendered the defendant's challenge legally moot, as they provided the defendant with the possibility of release after 25 years of imprisonment and required the Board of Parole Hearings 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 . . . .' " (Franklin, at pp. 268, 280.) According to Franklin such a sentence with a meaningful opportunity for release during the 25th year of incarceration "is neither [life without the possibility of parole] nor its functional equivalent." (Franklin, at p. 280.)
"As originally enacted, section 3051 referred to offenses committed before the offender was 18 years old. The age was raised to 23 years by an amendment that became effective on January 1, 2016." (In re Trejo, supra, 10 Cal.App.5th at p. 981, fn. 6, citing Stats. 2015, ch. 471 (Sen. Bill No. 261), § 1.)
The court in Franklin, however, issued a limited remand of the matter, stating 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." (People v. Franklin, supra, 63 Cal.4th at p. 284.) Though the court stated the defendant did not need to be resentenced, on remand the court was to determine "whether [the defendant] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Ibid.) The Franklin court continued: "If the trial court determines that [the juvenile] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [The juvenile] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors [citation] in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he was a child in the eyes of the law.' " (People v. Franklin, 63 Cal.4th at p. 284.)
Arcos seeks a remand so he can present such submissions or testimony. He points out the record contains little information about him other than his age and juvenile record; he presented no testimony or evidence during his sentencing hearing and thus there is no information about his family background and circumstances, his characteristics, any mental disorders, or any other youth-related factors for the future parole board hearing. He argues that because the record is clear he had no opportunity to make a Franklin showing, we must direct the court to hold a hearing on the matter.
In the event his matter proceeds to a court of criminal jurisdiction, we agree Arcos should have an opportunity to make a record of information relevant to his eventual youth offender parole hearing. Though Magallanes did not also seek such a hearing or join in Arcos's arguments, he should likewise have that opportunity. Before the February 5, 2016 sentencing hearing, the probation department submitted reports for Arcos and Magallanes, but the report indicates neither Arcos nor Magallanes were interviewed under advice of counsel. Consequently, the probation officer reported for both "[their] culpability and remorse are unknown." The probation reports did not discuss circumstances of mitigation, as their sentences were mandatory. Neither Arcos nor Magallanes submitted a sentencing report, and the People's sentencing memorandum did not address any of their characteristics, cognitive ability, social or family background, or other youth-related factors.
At the sentencing hearing, the court stated it had read the probation department's reports and considered the prosecution's sentencing brief. It asked if the parties wanted to be heard.
Magallanes's counsel asked that count 2 be sentenced concurrently to count 1, but otherwise submitted. During Magallanes's sentencing, the court stated: "One thing I should probably make a finding on is that under . . . section 3051, Mr. Magallanes as a minor at the time of the commission of the offense will be entitled to a parole hearing upon the expiration of 25 years, and for that reason, this does not result in a de facto life sentence, for the record." After the court sentenced Magallanes, the prosecutor clarified that the jury's true finding as to section 186.22, subdivision (b)(4) rendered Magallanes's first initial parole date to be no sooner than 15 years, and that the "186 enhancement is inapplicable to the sentencing." The court responded, "I will so find." Arcos's counsel also submitted. She then stated: "The only thing I would like to state for the record is Mr. Arcos was a juvenile when this offense in this case happened, and because he was a juvenile, my understanding is that he is eligible for parole at the age of 40 under a new Penal Code section that was enacted, and that he is currently 22. The 15-year requirement that 15 years of a life sentence be served under 186.22, the gang enhancement in this case, will be fulfilled, because he will be 37 at that time. So by the time he is 40, he will have done the 15 years requirement under 186.22, at least 15 years of a life sentence. And on that, I'll submit." The prosecutor did not wish to be heard, but remarked, "The state of the law is the state of the law." The court stated: "Yes. I'm familiar with Penal Code section 3051, and I will find that Mr. Arcos will be eligible for a parole hearing in advance of the expiration of the life sentence."
It is evident from the record that both the court and counsel were well aware of section 3051. The sentencing hearing, however, took place before the California Supreme Court decided People v. Franklin, supra, 63 Cal.4th 261, and thus at that time "there was no clear indication that a juvenile's sentencing hearing would be the primary mechanism for creating the record of information required for a youth offender parole hearing 25 years in the future." (People v. Jones (2017) 7 Cal.App.5th 787, 817.) We conclude under the circumstances that Magallanes and Arcos did not have a sufficient opportunity to place on the record the evidentiary showing described in Franklin as appropriate for a youth offender's future parole hearing.
The circumstances here are similar to those in People v. Jones, in which the Court of Appeal agreed remand was appropriate for a defendant who was sentenced after the enactment of sections 3051 and 4801, but before the decision in Franklin. (People v. Jones, supra, 7 Cal.App.5th at p. 819.) At the sentencing hearing in Jones, as here, defense counsel did not present any evidence concerning the defendant's level of maturity, cognitive ability, or other youth-related factors. Counsel "simply referred to Jones's age at the time of the offenses, and then noted that a juvenile offender sentenced to a term of 25 years to life would receive a parole hearing during his 25th year of incarceration. Apart from this passing reference to Jones's future parole eligibility date, however, defense counsel made no attempt to place on the record any type of mitigating evidence that could be relevant at Jones's eventual youth offender parole hearing. Rather, the focus of both the parties and the trial court at the sentencing hearing was on the length of the sentence, and specifically, whether consecutive or concurrent terms would be imposed." (Id. at p. 819.) And here, as in Jones, "neither party addressed the type of evidentiary record showing that would be required for Jones's youth offender parole hearing under sections 3051 and 4801; as the Supreme Court explained in Franklin, such a record is better made close in time to the 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.' " (Ibid.; quoting People v. Franklin, supra, 63 Cal.4th at p. 284.) In remanding for a hearing on these issues, the court in Jones explained that "Franklin made clear that the sentencing hearing has newfound import in providing the juvenile with an opportunity to place on the record the kinds of information that 'will be relevant to the [parole board] as it fulfills its statutory obligations under sections 3051 and 4801.' [Citation.] In this pre-Franklin hearing, as a result, we cannot assume that Jones and his counsel anticipated the extent to which evidence of youth-related factors was a critical component of the sentencing hearing." (People v. Jones, 7 Cal.App.5th at p. 819.)
In Jones, the prosecutor discussed in her sentencing memorandum the application of the factors discussed in Miller v. Alabama, supra, 567 U.S. 460 and asked the trial court to consider those factors on the record in sentencing the defendant. (People v. Jones, supra, 7 Cal.App.5th at p. 816.) No such information was presented or similar request made in this case.
The same conclusion applies here. Defense counsel did not file sentencing memoranda or offer evidence of their clients' "culpability or cognitive maturity." (People v. Franklin, supra, 63 Cal.4th at p. 284.) Thus, in the event the matters proceed to criminal court, the trial court is to conduct a hearing and follow the procedures outlined in Franklin to ensure that defendants have the opportunity to present evidence regarding their youth-related characteristics and circumstances at the time of the offense. (People v. Jones, 7 Cal.App.5th at p. 820.) As in Jones, "[w]e do not suggest that every juvenile offender sentenced prior to Franklin and eligible for a parole hearing under section 3051 is entitled to a remand to present evidence regarding his or her youth-related characteristics and circumstances at the time of the offense. Rather, we conclude that, in this case, it is unclear whether [defendants] understood both the need and the opportunity to develop the type of record contemplated by Franklin." (Jones, at p. 820.)
Our decision necessarily rejects the People's contentions that defendants had an opportunity to present Franklin information at the sentencing hearing but simply chose not to do so, or that the court should determine only whether Arcos or Magallanes were afforded a sufficient opportunity to make a record of information relevant under Franklin. The People also assert that to the extent defendants seek to present additional evidence, they may do so directly to the parole board under a specified regulation. In our view, allowing defendants to choose the information they might believe is relevant falls short of the procedures set out in Franklin, which contemplates evidentiary submissions, including statements from family members and others, and "if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence." (People v. Franklin, supra, 63 Cal.4th at pp. 283-284.) It would also not afford them the assistance of counsel in gathering and presenting such evidence. A sentencing hearing is a critical stage of a criminal proceeding to which the right to counsel applies. (In re Calhoun (1976) 17 Cal.3d 75, 84; People v. Bauer (2012) 212 Cal.App.4th 150, 155.) A Franklin hearing falls within that category, as its goal is to permit a defendant at the time of sentencing to make an "accurate record of [his] characteristics and circumstances at the time of the offense so that the [Parole] Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors (§ 4801, subd. (c))" in determining whether the defendant is fit for parole. (People v. Franklin, supra, 63 Cal.4th at p. 284.)
The People refer to Title 15, California Code of Regulations, section 2249, which provides: "A prisoner shall have the right to present relevant documents to the hearing panel. The documents should be brief, pertinent, and clearly written. They may cover any relevant matters such as mitigating circumstances, disputed facts or release planning. A copy of the documents may be placed in the prisoner's central file."
IV. Other Sentencing Issues
A. Magallanes's Presentence Custody Credits
The court did not formally calculate or record on the abstract of judgment the custody credits to which Magallanes was entitled. Defendants who have been in custody during the pendency of their charges are entitled to receive credit against their sentence for days served in connection with the charged conduct. (§ 2900.5, subd. (a); People v. Buckhalter (2001) 26 Cal.4th 20, 30.) The trial court has a duty to determine the amount of time served and the total number of custody credits to which a defendant is entitled. (§ 2900.5, subd. (d) ["The total number of days to be credited shall be contained in the abstract of judgment"]; People v. Buckhalter, at p. 30.)
Magallanes was incarcerated from the date of his January 11, 2012 arrest to the date of his sentencing on February 5, 2016, a period that encompasses 1,487 days. In view of his murder conviction, he is not entitled to accrue conduct credits. (§ 2933.2; People v. Johnson (2010) 183 Cal.App.4th 253, 289.) The People concede, and we agree, that if Magallanes's convictions and sentence are reinstated, he must be awarded 1487 days of actual custody credit for that time. B. Sentencing on Count 1 Gang Enhancement
Though the jury found section 186.22, subdivision (b) gang allegations to be true for both defendants on count 1, the trial court in its oral pronouncement neglected to impose a sentence enhancement for those findings. However, the enhancement for the section 186.22, subdivision (b) gang allegation is reflected on both abstracts of judgment as stayed. The People correctly point out that the court's oral pronouncement controls over any discrepancy of the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment does not control if different from the court's oral judgment]; People v. Zackery (2007) 147 Cal.App.4th 380, 385 ["Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls"].)
Several days after the sentencing hearing, the court issued an order in Arcos's case "correct[ing the sentencing minutes] Nunc Pro Tunc" to impose a stayed 10-year sentence "[a]s to the Prior 01." Arcos contends the court's nunc pro tunc order was issued in error as the jury did not find he suffered any prior conviction. The People suggest the nunc pro tunc order was intended to refer to the gang enhancement so as to correct its omission during the sentencing hearing. They ask for remand so the court may clarify its intent in the nunc pro tunc order. The abstract of judgment indicates that Arcos's sentence was imposed both at the initial sentencing hearing and also by the nunc pro tunc order, thus, it appears the court intended in the latter order to refer to the 10-year gang enhancement on count 1. Because we conclude the 10-year gang enhancements cannot lawfully be imposed under section 186.22, subdivision (b)(5), there is no need for the court to clarify its intent.
Arcos nevertheless contends the court was precluded from imposing the gang enhancement by section 12022.53, subdivision (e)(2), which prohibits imposition of both firearm and gang enhancements unless the jury finds the defendant personally used or discharged a gun. The People concede that the court below did not impose the gang enhancement on count 1, but argue it was not prevented from doing so because the jury found both defendants personally used or discharged a firearm under section 12022.53, subdivision (d). They ask that we remand the matter for the trial court to impose sentencing on the gang enhancement for both defendants.
In reply, Magallanes contends that in addition to the preclusion under section 12022.53, subdivision (e)(2), the additional 10-year enhancement cannot be imposed under the authority of People v. Lopez (2005) 34 Cal.4th 1002, under which a defendant who commits a gang-related violent felony punishable by life in prison is not subject to the 10-year gang enhancement but rather is subject to a minimum parole eligibility term of 15 years under section 186.22, subdivision (b)(5), which provides: "Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." (Id. at p. 1010; see also People v. Salvador (2017) 11 Cal.App.5th 584, 588; People v. Francis (2017) 16 Cal.App.5th 876, 886.)
We agree that People v. Lopez, supra, 34 Cal.4th 1002 compels us to conclude the court would impose an unauthorized sentence if it were to impose the 10-year enhancements under section 186.22, subdivision (b)(1)(C). (Lopez, at pp. 1004, 1010-1011; see People v. Francis, supra, 16 Cal.App.5th at p. 884 [an unauthorized sentence is one that cannot be lawfully be imposed under any circumstance in the particular case].) The trial court's oral pronouncement correctly omitted the enhancements. In the event defendants' convictions are reinstated, the abstract of judgment shall reflect that based on the jury's findings, defendants are subject to a 15-year minimum eligible parole date. (Lopez, at p. 1011.) C. References to Sections 667 and 1170 .12
The court checked boxes on section 8 of the abstracts of judgment indicating that defendants were sentenced pursuant to sections 667 or 1170.12. The People concede, and we agree, that because neither defendant was sentenced under the Three Strikes Law, any such references are improper and should be omitted from any abstract of judgment. (See People v. Mitchell, supra, 26 Cal.4th at p. 185 [appellate courts may correct clerical errors at any time, and order correction of abstracts of judgment inconsistent with oral judgments of sentence].)
V. Proposition 57 Retroactively Applies to Defendants' Non-Final Judgments and
Entitles Them to Transfer Hearings in Juvenile Court
Defendants contend that after the passage of Proposition 57, which prohibits direct filing of criminal charges against juveniles (Lara, supra, 4 Cal.5th at p. 303), and the California Supreme Court's decision in Lara, they are entitled to a conditional reversal of their judgments and remand to the juvenile court for a hearing to determine whether the matter should remain in juvenile court or be transferred to adult court. (See Welf. & Inst. Code, § 707.) The People concede they are entitled to such hearings. In Lara, the court held the inference of retroactivity set forth in In re Estrada (1965) 63 Cal.2d 740 applied to Proposition 57, which was "an 'ameliorative change[] to the criminal law . . . .' " (Lara, at p. 308.) Thus, the court concluded the defendant in Lara properly received the benefit of Proposition 57, which "applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Id. at p. 304.)
Defendants are therefore entitled to hearings in juvenile court to determine whether their cases should proceed through the juvenile justice system or be transferred back to adult court. " 'When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer [the] cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearings, the court determines that it would have transferred [the defendant] to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then [his] convictions . . . are to be reinstated. [Citation.] On the other hand, if the juvenile court finds that it would not have transferred [him] to a court of criminal jurisdiction, then it shall treat [his] convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' " (Lara, supra, 4 Cal.5th at 310, quoting People v. Vela (2017) 11 Cal.App.5th 68, 82.)
VI. Exercise of Court's Discretion to Stay or Dismiss Section 12202.53 Firearm
Enhancements
Defendants seek resentencing so that the trial court may exercise its discretion to strike or dismiss one or more of their firearm enhancements under recently-amended section 12022.5, subdivision (h). They argue that because their judgments are not yet final, this court must apply the amendment retroactively under In re Estrada (1965) 63 Cal.2d 740 and People v. Francis, supra, 71 Cal.2d 66.
Arcos additionally contends the equal protection clauses of the state and federal constitutions compel a remand for resentencing. We need not reach the argument given the People's concession.
Before the enactment of Senate Bill No. 620, section 12022.53, subdivision (h) prohibited the trial court from striking the sentence enhancement allegations or findings for personal use of a firearm contained in the statute. The new legislation deletes that prohibition, and now permits the court to strike or dismiss the enhancement as follows: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).) The parties agree the amendment went into effect January 1, 2018.
The statute previously provided: "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (Former § 12022.53, subd. (h).) --------
Estrada recognized the general rule that changes in the law apply prospectively, but created an exception for cases not yet final at the time a new law that mitigates punishment for a specific criminal offense takes effect. Estrada held that in the absence of a statutory "saving clause" precluding this retroactive application, it is presumed the Legislature intended any change in the penal law that mitigates punishment to "apply to every case to which it constitutionally could apply," including cases not yet final at the time the law becomes effective. (In re Estrada, supra, 63 Cal.2d at p. 745.) The law at issue in Estrada reduced the maximum prison term for the specific crime for which the defendant had pleaded guilty. (Id. at pp. 754-744.) Francis applied the same rule to a change in the law that gave the trial court discretion to sentence the defendant to a misdemeanor rather than a felony. (Francis, supra, 71 Cal.2d at p. 76.)
The People concede that this court is bound under Francis to apply the amendment to nonfinal judgments. The People nonetheless argue that in this case, defendants' claims are unripe because the statute is not operative until January 1, 2018. They additionally argue no purpose would be served by any remand in defendants' cases because the trial court's remarks at sentencing make clear it would not have struck the enhancements even if it had discretion to do so.
We decide this appeal after January 1, 2018, thus, the People no longer have a ripeness claim. We accept the People's concession and assume, without deciding, that the amendment of section 12022.53, subdivision (h) applies to defendants whose convictions are not yet final. As for the People's argument that no purpose would be served by a remand in defendants' particular cases, we cannot agree. Defendants have a right to be heard under the new scheme, and they are "entitled to a sentencing decision made in the exercise of the 'informed discretion' of the court." (People v. Jones (2007) 157 Cal.App.4th 1373, 1383.) Because we accept the concession that the law applies retroactively to nonfinal judgments, in the event the matter proceeds to the criminal court on remand, the trial court in resentencing defendants shall exercise its discretion under section 1385 and decide whether to strike one or more of defendants' section 12022.53 firearm enhancements, or to again impose the enhancement terms.
DISPOSITION
The judgments are conditionally reversed and remanded to the juvenile court for hearings pursuant to Welfare and Institutions Code section 707 in which the court will determine each defendant's fitness for treatment within the juvenile justice system. If, at the hearing for each defendant, the juvenile court determines it would not have transferred the defendant to a court of criminal jurisdiction, then the defendant's convictions and enhancements will be deemed to be juvenile adjudications as of that date. The juvenile court is then to conduct a dispositional hearing.
If, at the hearing, the juvenile court determines that it would have transferred the defendant to a court of criminal jurisdiction, then the judgment shall be reinstated as of that date with regard to all convictions and enhancement findings. The trial court is then to conduct a resentencing hearing consistent with this opinion. As discussed, because section 654 does not permit punishment for the two-year consecutive midterm sentences imposed on count 6, the trial court shall stay those sentences. The court shall award Magallanes's 1487 days of presentence custody credit. Both defendants' abstracts of judgment shall omit references to sections 667 and 1170.12, as well as to the 10-year gang enhancements in accordance with section 186.22, subdivision (b)(5), and reflect that defendants are subject to a 15-year minimum eligible parole date. The trial court is directed to give Magallanes and Arcos an opportunity to make a record of information relevant to their eventual youth offender parole hearings under People v. Franklin, supra, 63 Cal.4th 261, and to exercise its discretion to decide whether to strike one or more of the section 12022.53 firearm enhancements under section 1385 or again impose the enhancement terms. In all other respects the judgments are affirmed. Following the limited hearing on remand, the clerk of the superior court is instructed to prepare amended abstracts of judgments for both defendants reflecting the trial court's sentencing decisions and the aforementioned modifications and to serve certified copies on the Department of Corrections and Rehabilitation.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. DATO, J.