Opinion
F073448
08-09-2018
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO PAZ, Defendant and Appellant.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Galen Farris, Nick Fogg, Amanda D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F09902216)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge. Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Galen Farris, Nick Fogg, Amanda D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
A jury convicted appellant Alejandro Paz of voluntary manslaughter in the shooting death of Richard Cervantes (Pen. Code, § 192, subd. (a); count 1). He was also found guilty of four counts of assault with a firearm when, after shooting Cervantes, he fired multiple shots at a nearby vehicle that had four passengers (§ 245, subd. (a)(2); counts 3-6). For all five convictions, the jury found true that appellant personally used a firearm (§ 12022.5, subd. (a)). The trial court imposed the maximum sentence possible, committing appellant to prison for an aggregate term of 38 years four months.
All future statutory references are to the Penal Code unless otherwise noted.
The People charged appellant with murder (§ 187, subd. (a)) in count 1 for Cervantes's death. During closing arguments, the prosecutor asked the jury to find appellant guilty of premeditated first degree murder. The jury, however, found appellant guilty of the lesser included offense of voluntary manslaughter.
Three passengers were in this vehicle when shots were fired while the fourth passenger had exited and hid behind the trunk. In count 2, the jury found appellant not guilty of the attempted voluntary manslaughter of Esteban Ohano, one of those passengers in this car. In count 3, however, the jury found appellant guilty of assault with a firearm against Ohano.
On appeal, appellant argues the trial court should have instructed the jury regarding involuntary manslaughter and he asserts the trial court improperly excluded evidence of the homicide victim's 25-year-old juvenile rape conviction. He further alleges the court abused its discretion by imposing the maximum possible sentence. We find these arguments unpersuasive.
Via supplemental briefing, the parties agree, as do we, that a limited remand is necessary to afford appellant the opportunity to make a record of information relevant to his eventual youth offender parole eligibility hearing. (See § 3051, subds. (a)(1), (b)(2); People v. Franklin (2016) 63 Cal.4th 261 (Franklin).) We remand this matter so the trial court may determine whether appellant was afforded an adequate opportunity to make such a record and, if not, to allow him and the People an adequate opportunity to make a record consistent with Franklin, supra, 63 Cal.4th at p. 284.
Via additional supplemental briefing, the parties agree, as do we, that a recent amendment to section 12022.5 applies to this matter, which gives the trial court discretion to strike or dismiss the imposed firearm enhancements. (§ 12022.5, subd. (c).) Because we are already remanding this matter, and in the interests of justice, we also remand this issue to the trial court so it may exercise its new sentencing discretion. (§ 12022.5, subd. (c).) We otherwise affirm the judgment.
BACKGROUND
I. Relevant Summary Of The Prosecution's Case.
We summarize the material facts from the prosecution's case-in-chief.
A. The homicide on April 12, 2009.
Sometime after midnight on April 12, 2009, appellant shot and killed Richard Cervantes. The homicide occurred at the end of a fistfight involving the two men.
At trial, the jury heard considerable gang evidence related to this fatal encounter. Appellant and Cervantes were both members of the Fresno Bulldog criminal street gang, but from different sects. Two other Bulldog gang members, Esteban Ohano and Vincent Ramirez, were key to why this fight occurred. Ramirez was appellant's friend and codefendant. Ohano was Cervantes's nephew.
The prosecutor did not allege that appellant committed these crimes for the benefit of a criminal street gang. (See § 186.22, subd. (b)(1).) Much of the gang evidence is omitted from this opinion as it is not material to the issues raised on appeal.
Ramirez was 19 years old when this shooting occurred. The district attorney's office charged Ramirez with murder for his involvement in this homicide. Prior to this trial, he pleaded to a count of voluntary manslaughter and received an aggregate prison sentence of 12 years in exchange for his truthful trial testimony.
Ohano, who was subpoenaed to testify by the prosecution, appeared at trial but he refused to answer any questions posed to him.
Before this deadly encounter, Ohano had been friends with Ramirez. Their relationship turned sour after gang leaders instructed Ramirez to either fight Ohano and/or drive him out of the neighborhood. This was known in the gang as "putting a greenlight" on Ohano. At trial, the jury heard numerous reasons why a greenlight had been ordered against Ohano, all of which centered on his erratic behavior and use of methamphetamine. Ramirez, however, had been reluctant to fight Ohano but tensions escalated between these two men.
At trial, the prosecution's gang expert explained that "a greenlight" is "essentially an authorization by someone to impose discipline on a fellow [gang] member."
Ramirez told the jury that appellant never encouraged him to fight Ohano but, instead, counseled him to talk with Ohano. According to Ramirez, appellant had no involvement in the problems between Ohano and Ramirez leading up to this encounter. Appellant had been telling Ramirez that he (appellant) wanted to move back to Washington with his kids. Appellant was mentoring Ramirez and encouraging him to avoid drugs and find employment.
The jury heard considerable trial testimony regarding how and why this fatal encounter occurred, but much of that evidence is not material to the issues raised on appeal so we provide only a brief summary. On the night in question, Ramirez's girlfriend complained that Ohano had thrown a rock at her vehicle. Ramirez agreed to go speak with Ohano that night. At the time, Ramirez was at appellant's apartment drinking alcohol. Appellant initially declined to go with Ramirez, but appellant relented after Ramirez indicated he would go alone. Ramirez and appellant drove away while Ramirez's girlfriend and her friend stayed behind to watch appellant's two young sleeping sons. Ramirez was driving his girlfriend's vehicle when they left to confront Ohano.
Around the time appellant and Ramirez decided to confront Ohano, Cervantes and Ohano also decided to confront Ramirez. The two factions encountered each other on a public street. Three young ladies, all teenagers, were in the car with Cervantes and Ohano when this fight occurred.
Certain trial testimony suggested that Ramirez parked his vehicle in a way that prevented Ohano and Cervantes from driving away. Ohano was driving the other vehicle, which belonged to one of the teenaged females.
Ramirez told the jury that he was very drunk and dizzy when this encounter occurred. All four men exited their respective vehicles at various times. After exiting the car, Ramirez opened the trunk and leaned against the car near the driver's side door. According to Ramirez, Cervantes walked towards appellant. Ramirez testified that, on the night of this fatal encounter, he knew both Ohano and Cervantes had been using a lot of methamphetamine for several days, which made them both violent.
The trial witnesses disagreed about who started the fistfight. In any event, everyone agreed that appellant and Cervantes had a short fistfight near the two parked vehicles. The witnesses generally agreed that Cervantes, who was bigger than appellant, was winning the fight. Appellant either stumbled, fell or was knocked to the ground. He retreated towards the rear of the vehicle, where he obtained a handgun which had been wrapped in a red shirt.
At trial, appellant and Ramirez provided conflicting testimony about this gun. According to appellant, Ramirez handed him the gun. Appellant claimed at trial he had never seen nor possessed this gun before this fistfight. In contrast, Ramirez testified that he did not remember handing appellant a gun, but admitted it was possible he did so. According to Ramirez, this was appellant's gun, and appellant had instructed him to put it in the truck before they left to confront Ohano. The gun had been wrapped in a red shirt when it was placed in the trunk. At trial, Ramirez testified that appellant placed the gun in the trunk and at other times he said he could not remember who did it. Ramirez told the jury that, when the two factions encountered each other, appellant told him to "pop the trunk."
One of the teenaged passengers testified at trial that Ramirez handed appellant the gun, which had been wrapped in a red shirt.
It is undisputed that, after appellant became armed, he pointed the handgun at Cervantes. Appellant fired once, striking Cervantes in his chest from about three feet away. Cervantes fell to the ground. Cervantes was unarmed when appellant fired. Appellant then turned and fired multiple shots into the second vehicle, emptying the clip. Ramirez and appellant drove away.
One of the females in the second vehicle received a graze wound on the top of her head when appellant fired into that car. This head wound required nine staples to close. Neither of the other two females was injured. Ohano suffered a small wound to his leg.
The vehicle's owner, one of the teenagers, was outside the second vehicle when shots were fired and she ducked behind the trunk. The other two females, and Ohano, were inside the second vehicle when appellant fired at it.
After the shooting, Ramirez drove appellant back to appellant's apartment. On the way, appellant said, "I shot him in his chest." At some point, appellant said he had emptied the gun's clip. Sometime later that night, appellant contacted his half brother, who came to his residence and collected the gun.
B. Police arrest appellant.
At about 1:43 a.m. on the morning of the shooting, law enforcement was dispatched to the crime scene. Officers eventually learned of appellant's involvement in this matter, and they set up surveillance around appellant's apartment. They arrested appellant and Ramirez without incident later that morning around 11:00 a.m. when the two men drove away from the apartment. Police searched appellant's residence, locating four .40-caliber rounds inside a suitcase in the master bedroom.
C. Police interview appellant.
Police interviewed appellant, who initially lied about his involvement in Cervantes's death, claiming he had not been present when this shooting occurred. Appellant told police that someone named "Looney" had been with Ramirez that night and appellant believed Looney was involved in this shooting.
Appellant eventually broke down and admitted that he shot Cervantes, but he claimed he fired over fear. He said the gun had been wrapped in a red shirt. He said it "just went off" when he was trying to take it out of the T-shirt. He believed Cervantes had been possibly reaching for a knife. He knew Cervantes had been in prison. Cervantes had a reputation "for sticking people" and appellant did not want to be stabbed. However, appellant admitted it was possible Cervantes had been reaching back to hit him again. Appellant fired at the second vehicle because "I just thought all kinds of people was [sic] just coming out the car so I just started shooting at the car." He claimed he did not know that females had been in that vehicle.
D. The forensic evidence.
Cervantes died from the single gunshot wound. The bullet entered the left side of his chest, penetrated his heart, and exited the right side of his back. The shot had occurred from at least two and a half feet away. Based on the entry and exit wounds, the forensic pathologist opined that Cervantes had either been standing upright and turning, or leaning forward and lunging, when appellant shot him. At the time of his death, Cervantes had "a significant amount of methamphetamine in his system." The jury learned that this drug can increase a person's aggressiveness and violence.
Police eventually recovered appellant's handgun, a .40-caliber Glock. Investigators recovered 15 shell casings at this crime scene. Police discovered that approximately four bullets fired from appellant's gun had struck nearby residences. Testing confirmed that all of the shell casings recovered at the crime scene were fired from appellant's .40-caliber Glock. That gun also fit an empty holster found in a backpack in appellant's car. The four bullets recovered in the suitcase found in appellant's bedroom were the same type of shell casing that were recovered at this crime scene.
E. Evidence of Cervantes's character for violence.
Ramirez testified at trial that Cervantes had a reputation for violence. Prior to this fatal encounter, Ramirez had told appellant that Cervantes was dangerous, he carried a knife, and he was quick to stab a person.
F. Appellant makes statements to a correctional officer.
While appellant was in custody, he made voluntary statements to a correctional sergeant. Appellant explained the problem Ramirez had been having with Ohano leading up to the fatal encounter. Appellant admitted that, on the night of this encounter, he had "done a line of cocaine" after his sons went to sleep, and just before Ramirez and his girlfriend came to his apartment. Appellant knew that Ohano's uncle "was a guy named Crunch." Appellant knew that Cervantes "was a bad guy" who "had done some prison time." He was known for "heavy violence." On the night in question, Ramirez had been in a "heat of rage" so appellant agreed to go with him to confront Ohano.
Appellant told the correctional sergeant that he discovered a .40-caliber Glock wrapped in a red shirt underneath the front passenger's seat as they drove to confront Ohano. According to appellant's statements, he retrieved the Glock from the car in an effort to scare Cervantes because he had heard somebody tell Cervantes to stab him. Appellant claimed that the gun accidentally went off as he was trying to get the gun out of the T-shirt. He fired at the second vehicle because he saw "five or six" people inside that car, and he thought they were going to shoot at him.
II. The Relevant Defense Evidence.
Appellant's girlfriend and his ex-girlfriend's sister both testified at trial. Appellant was not known to be violent and he was never seen with a gun.
Appellant, who testified on his own behalf, was 22 years old when this shooting took place. He provided the jury with his background, explaining how he first became exposed to the gang lifestyle when he was only 11 or 12 years of age. In 2005, he moved to Washington with his girlfriend and their son. In 2008, he moved back to Fresno. He told the jury that, in 2009, he was no longer actively involved in the gang.
Sometime in 2008, appellant met Ramirez. Ramirez confided to him about the recent misunderstanding involving Ohano. Ramirez complained that Ohano was binging on methamphetamine and would not listen to reason about "the greenlight thing[.]"
Appellant told the jury that, on the night in question, he had not wanted to accompany Ramirez. Appellant relented when Ramirez said he would go alone. Ramirez's girlfriend and her friend stayed with his children. At trial, appellant denied taking anything with him or putting anything in the trunk before they drove to confront Ohano.
Ramirez drove but he was very drunk. They saw the other group and stopped. Cervantes immediately exited the passenger side. Appellant knew Cervantes as an "OG" in the neighborhood and Cervantes had a prison record. Cervantes approached appellant "kind of aggressive."
According to appellant, Cervantes struck him without provocation. Appellant fell to the ground and he fought back. He heard people exiting the second vehicle and he could not see past the headlights. He thought a bunch of men were approaching and he was afraid he would be jumped. Appellant explained to the jury he had believed more men were in the second vehicle because of Ramirez's comments that Ohano always had "some dudes in a car." In addition, Ramirez's girlfriend had reported that a "bunch of dudes" had been with Ohano when he struck her car with a rock. Appellant felt afraid during his fight with Cervantes.
During the short fight, appellant thought he heard somebody telling Cervantes to stab him. Cervantes had a reputation for using a knife to stab people. Appellant was afraid Cervantes would stab him. He escaped Cervantes's grasp by pulling out of his shirt. Ramirez handed him a gun. Appellant claimed that was the first time he saw it, and he denied bringing the gun to the fight.
Appellant spun around and pointed the gun at Cervantes, who was about three or four feet away. Cervantes had followed appellant towards the back of the vehicle. Appellant said "back up" and Cervantes stopped and smirked, then twisted and reached back. Appellant was in fear of his safety. He did not remember pulling the trigger, but the gun went off and Cervantes fell down.
Appellant claimed he heard gunshots so he ducked and began shooting at the headlights of the second vehicle. He did not know who was in that car. As he fired, he ran back to Ramirez's vehicle. He got in and Ramirez drove them away. At trial, appellant admitted that he never saw Cervantes holding a knife or gun. He conveyed that he shot in reaction to fear.
At trial, appellant admitted that he lied to police during his interview. He lied because he "knew" that police wanted him to say it was Ramirez who gave him the gun. He believed Ramirez had "saved" him by giving him the gun that night so he was willing to take "the blame for everything." He told the jury, however, that he had never seen that gun before and he had not brought it to the fatal encounter.
The jury learned that the .40-caliber Glock which appellant used in this shooting had been previously burglarized from a residence in Fresno in 2008 before appellant returned from Washington. The individuals responsible for that burglary had resided with Ohano.
Appellant also admitted at trial that he lied to police about the gun's whereabouts after the crime. He explained, however, that he eventually agreed to help police recover the gun. He told the jury that the gun holster which police had recovered did not belong to him, but was found in the apartment when he returned from Seattle. He had kept it because it looked expensive.
On cross-examination, appellant admitted that the gun did not shoot itself when Cervantes was shot. Appellant admitted he must have pulled the trigger.
DISCUSSION
I. The Trial Court Did Not Err In Failing To Instruct On Involuntary Manslaughter And Any Presumed Error Was Harmless.
Appellant asserts that the trial court prejudicially erred in failing to instruct the jury sua sponte regarding involuntary manslaughter as a lesser included offense to murder. He requests remand for retrial on count 1.
A. Standard of review.
A trial court is required to instruct the jury on a lesser included offense only if there is substantial evidence that absolves the defendant from guilt of the greater offense but not the lesser. (People v. Cole (2004) 33 Cal.4th 1158, 1218.) "Evidence is 'substantial' only if a reasonable jury could find it persuasive." (People v. Young (2005) 34 Cal.4th 1149, 1200; accord, People v. Moye (2009) 47 Cal.4th 537, 553 ["'the existence of "any evidence, no matter how weak" will not justify instructions on a lesser included offense ....'"].) We review claims involving the failure to instruct on a lesser included offense de novo, considering the evidence in the light most favorable to the accused. (People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers).)
B. Analysis.
Appellant argues it was not clear whether he intended to shoot or whether he acted with a conscious disregard for life. He claims it is unclear who brought the gun and "introduced it" during this fatal fight. He asserts he was not the aggressor in this confrontation. He maintains that an unlawful killing in the absence of malice "must be involuntary manslaughter." He contends substantial evidence supported an instruction on involuntary manslaughter, and he relies primarily on Brothers, supra, 236 Cal.App.4th 24 to establish instructional error. We find his arguments unpersuasive. The trial court did not err and any presumed error was harmless.
1. The trial court did not err.
The killing of one human being by another, homicide, is not always criminal. In some situations, a killing may be justifiable or excusable. (People v. Elmore (2014) 59 Cal.4th 121, 132.) The forms of criminal homicide are murder and manslaughter. Murder is the unlawful killing of a human being with malice aforethought, which may be express or implied. (Ibid.) Express malice is "'a deliberate intention unlawfully to take away the life of a fellow creature.' [Citation.]" (Ibid.) Implied malice occurs when "an unlawful killing results from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for that danger. [Citations.]" (Id. at p. 133.) "Thus, the mens rea required for murder is malice, express or implied. [Citation.]" (Ibid.)
In contrast to murder, manslaughter, which is a lesser included offense of murder, "is an unlawful killing without malice. [Citations.]" (People v. Elmore, supra, 59 Cal.4th at p. 133.) There are three types of manslaughter: voluntary, involuntary, and vehicular. (Ibid.)
"Two factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense. [Citations.] Heat of passion is recognized by statute as a mitigating factor. [Citation.] Unreasonable self-defense is founded on both statute and the common law. [Citation.]" (People v. Elmore, supra, 59 Cal.4th at p. 133.) In contrast to voluntary manslaughter, involuntary manslaughter is a killing that occurs during the commission of "an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).)
Our Supreme Court has noted that a defendant who has killed without malice in the commission of an inherently dangerous assaultive felony cannot be guilty of voluntary manslaughter, which requires either an intent to kill or a conscious disregard for life. (People v. Bryant (2013) 56 Cal.4th 959, 970.)
In general, California treats involuntary manslaughter as an unintentional killing caused by criminal negligence. (See People v. Ochoa (1998) 19 Cal.4th 353, 423 ["[i]nvoluntary manslaughter, when not misdemeanor manslaughter, is criminally negligent unlawful homicide."]; see also CALCRIM No. 580 [involuntary manslaughter requires criminal negligence]; People v. Penny (1955) 44 Cal.2d 861, 879 [a "lack of 'due caution and circumspection'" means "'criminal negligence'"]; accord People v. Evers (1992) 10 Cal.App.4th 588, 596.)
California opinions make it clear that the intentional use of violent force against a victim, knowing the probable consequences of one's actions, preludes an instruction on involuntary manslaughter. (See People v. Evers, supra, 10 Cal.App.4th at p. 598 [court was not required to instruct jury on involuntary manslaughter where defendant intentionally used violent force against victim knowing the probable consequences of his action]; see also People v. Hendricks (1988) 44 Cal.3d 635, 643 [involuntary manslaughter is an unintentional killing]; People v. Guillen (2014) 227 Cal.App.4th 934, 1027-1028 [instruction on involuntary manslaughter not warranted when defendants knew the risk involved to victim when they violently attacked him].)
In the context of brandishing a firearm, an unintentional shooting can be murder if the defendant acted in conscious disregard of life and the act was dangerous to human life. (People v. Thomas (2012) 53 Cal.4th 771, 814-815.) In the scenario of brandishing a firearm, a defendant is guilty of involuntary manslaughter only if the shooting was accidental and the defendant acts without malice. (Id. at p. 815.) In contrast, a defendant is guilty of voluntary manslaughter if he or she unlawfully kills in unreasonable self-defense with the intent to kill or with conscious disregard for life. (People v. Blakeley (2000) 23 Cal.4th 82, 91.)
Here, this record does not establish or even reasonably suggest that appellant accidentally shot Cervantes. After he became armed, appellant pointed the handgun at Cervantes and fired, striking Cervantes in his chest from about three feet away. At trial, appellant admitted that he pointed the gun at Cervantes. He did not remember pulling the trigger, but the gun went off and Cervantes fell down. On cross-examination, he admitted that the gun did not shoot itself and he must have pulled the trigger.
We note that, during his initial statements to police, appellant said the gun had been wrapped in a red shirt and it "just went off" when he was trying to take it out of the T-shirt. In addition, he told a correctional sergeant that the gun accidentally went off as he was trying to remove the gun out of the T-shirt. Based on the jury's true finding, however, the jury determined that appellant intentionally fired the gun at Cervantes.
Based on this record, it is clear that appellant knew the risk his actions posed to Cervantes's life when he pointed the gun at him and fired it. We disagree with appellant's claim that other evidence, such as his reputation for nonviolence and his admonishments to Ramirez to avoid fighting, established a lack of malice and required an instruction on involuntary manslaughter. Appellant's intentional use of violent force against Cervantes precluded such an instruction. (People v. Evers, supra, 10 Cal.App.4th at p. 598; see also People v. Hendricks, supra, 44 Cal.3d at p. 643 [involuntary manslaughter is an unintentional killing]; People v. Guillen, supra, 227 Cal.App.4th at pp. 1027-1028 [instruction on involuntary manslaughter not warranted when defendants knew the risk involved to victim when they violently attacked him].)
We likewise reject appellant's contention that evidence of his intentional shooting does not establish malice. To support this argument, appellant cites People v. Chun (2009) 45 Cal.4th 1172 (Chun), which held that when an underlying felony is assaultive in nature, "the felony merges with the homicide and cannot be the basis of a felony-murder instruction." (Id. at p. 1200.) From Chun, appellant claims that "[m]alice cannot be implied from an intentional act alone, unless the felony-murder rule applies." Chun, however, does not reasonably suggest that intent cannot be inferred from a defendant's actions, only that the felony-murder rule eliminates the need to investigate further the defendant's mental state when prosecuting a murder charge. (Chun, supra, 45 Cal.4th at p. 1182.)
In any event, our Supreme Court has held that the mental state required to convict a defendant may be inferred from the defendant's acts and the circumstances of the crime. (People v. Sánchez (2016) 63 Cal.4th 411, 457; accord People v. Smith (2005) 37 Cal.4th 733, 741; People v. Lee (1987) 43 Cal.3d 666, 679 [defendant's acts and circumstances inferred a specific intent to kill].) In regards to attempted murder, firing toward the victim at close range in a manner that could have inflicted a mortal wound is sufficient to support an inference of intent to kill. (People v. Smith, supra, 37 Cal.4th at p. 741.) This record has ample evidence establishing appellant's malice when he pointed and fired his gun at Cervantes at close range.
Finally, appellant's reliance on Brothers, supra, 236 Cal.App.4th 24, is misplaced. In Brothers, the defendant was convicted of voluntary manslaughter after she and her accomplices beat the victim. The victim died of asphyxiation after an accomplice shoved a large cloth gag down his throat. (Id. at pp. 26, 28.) On appeal, the defendant claimed the trial court erred in failing to instruct the jury sua sponte on involuntary manslaughter. (Id. at p. 26.)
The Brothers court sought to determine "whether an unjustified homicide in the course of an inherently dangerous assaultive felony (that is, a killing not amounting to felony murder) and accomplished without malice is voluntary or involuntary manslaughter." (Brothers, supra, 236 Cal.App.4th at p. 32.) After an extensive review of applicable authorities, it held that "an instruction on involuntary manslaughter as a lesser included offense must be given when a rational jury could entertain a reasonable doubt that an unlawful killing was accomplished with implied malice during the course of an inherently dangerous assaultive felony." (Id. at pp. 33-34.) Brothers, however, reaffirmed the rule that an instruction on a lesser included offense requires substantial evidence and not any evidence no matter how weak. (Id. at p. 34, citing People v. DePriest (2007) 42 Cal.4th 1, 50.) Brothers determined that, based on its facts, an instruction on involuntary manslaughter was not warranted. Even crediting the defendant's trial testimony, there was no evidence from which a reasonable juror could have entertained a reasonable doubt that she had acted in conscious disregard of the risk her conduct posed to the victim's life. Her own account showed she engaged in a deliberate and deadly assault. "There was no evidence of an accidental killing, gross negligence or [the defendant's] own lack of subjective understanding of the risk to [the victim's] life that her and her confederates' conduct posed. On this record, the trial court had no sua sponte duty to instruct the jury on involuntary manslaughter." (Brothers, supra, 236 Cal.App.4th at p. 34.)
Brothers reached this holding based on its review of People v. Bryant, supra, 56 Cal.4th 959 and People v. Bryant (2013) 222 Cal.App.4th 1196. (Brothers, supra, 236 Cal.App.4th at pp. 33-34.)
Here, similar to Brothers, substantial evidence did not justify an instruction on involuntary manslaughter. The evidence established that appellant engaged in a deliberate and deadly assault on Cervantes. There was no evidence of an accidental killing, gross negligence, or appellant's lack of subjective understanding of the risk he posed to Cervantes's life. Brothers does not assist appellant.
Based on this record, and considering the evidence in the light most favorable to appellant, substantial evidence did not absolve him from guilt of the greater offense but not the lesser. (See People v. Cole, supra, 33 Cal.4th at p. 1218.) The jury was not reasonably likely to have convicted appellant of the lesser included offense of involuntary manslaughter had such an instruction been given. (See People v. Thomas, supra, 53 Cal.4th at p. 815.) As such, the trial court had no duty to give an instruction regarding involuntary manslaughter and this claim fails. (See People v. Guillen, supra, 227 Cal.App.4th at p. 1028.) In any event, we also determine that any presumed instructional error was harmless.
2. Any presumed instructional error was harmless.
The parties dispute the appropriate standard of review to analyze prejudice in this situation. Appellant contends the federal standard under Chapman v. California (1967) 386 U.S. 18 (Chapman) must be employed. In contrast, respondent argues the state standard under People v. Watson (1956) 46 Cal.2d 818 (Watson) must be used for any alleged instructional error.
There is currently a debate in the Courts of Appeal whether prejudice for instructional error on a lesser included offense should be reviewed under Chapman or Watson. (See People v. Wright (2015) 242 Cal.App.4th 1461, 1495, fn. 14; People v. Peau (2015) 236 Cal.App.4th 823, 830-831; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1145-1146; People v. Thomas (2013) 218 Cal.App.4th 630, 633, 641-645.) We need not resolve this issue. Instead, based on this record, we can declare that any presumed instructional error here was harmless beyond a reasonable doubt, satisfying the more stringent federal standard of review. (See Chapman, supra, 386 U.S. at p. 24.)
As noted above, this record does not establish or even reasonably suggest that appellant accidentally shot Cervantes. Moreover, the jury found true the enhancement that appellant personally used a firearm during the commission of this crime (§ 12022.5). To find this enhancement true, the jury was instructed that appellant must have intentionally displayed the firearm, hit someone with it, or fired it.
Based on its true finding, the jury found that appellant intentionally fired his gun, negating any claim of an accidental discharge. As such, it is beyond a reasonable doubt that the jury would not have found appellant guilty of involuntary manslaughter. (See, e.g., People v. Thomas, supra, 53 Cal.4th at p. 815 [when brandishing a firearm, a defendant is guilty of involuntary manslaughter only if the shooting was accidental and the defendant acts without malice]; see also People v. Hendricks, supra, 44 Cal.3d at p. 643 [involuntary manslaughter is an unintentional killing].) Thus, we can declare beyond a reasonable doubt that any presumed instructional error was harmless. (Chapman, supra, 386 U.S. at p. 24.) Accordingly, prejudice is not present under either standard of review and this claim fails.
II. The Trial Court Did Not Abuse Its Discretion In Excluding Evidence Of Cervantes's Prior Rape Conviction And Any Presumed Error Was Harmless.
Appellant contends the trial court prejudicially erred by excluding evidence of Cervantes's juvenile adjudication for forcible rape in 1990, which resulted in a juvenile commitment in 1991.
A. Background.
Prior to trial, the parties discussed what evidence the jury could hear regarding Cervantes's prior criminal history. The trial court permitted the defense to introduce into evidence Cervantes's 2001 felony conviction for willful infliction of corporal injury (§ 273.5, subd. (a)) that resulted in a four-year prison commitment. The court, however, did not permit introduction of Cervantes's 1990 juvenile conviction of forcible rape (§ 261, subd. (a)(2)) that resulted in a juvenile commitment in 1991. Cervantes would have been approximately 14 years old when this conviction occurred. The trial court determined that this conviction was too remote in time.
Cervantes had a lengthy criminal record before he was killed in 2009, and he was not in compliance with parole when this homicide took place. We do not recite Cervantes's remaining criminal record because it is not material to the issues raised on appeal.
B. Standard of review.
We review a trial court's rulings under Evidence Code sections 352 and 1101 for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 667-668.) A trial court abuses its discretion when its ruling is outside the bounds of reason. (People v. Waidla (2000) 22 Cal.4th 690, 714.) An abuse is present if the court's ruling is arbitrary, capricious or patently absurd resulting in a manifest miscarriage of justice. (People v. Carrington (2009) 47 Cal.4th 145, 195.)
C. Analysis.
Appellant concedes that he had "no personal history" with Cervantes. However, he asserts he had a right to show "what he knew" regarding his "perception" of Cervantes in order to show the level of danger he faced during the altercation. He claims that evidence of Cervantes's juvenile rape conviction was probative, material and not unduly prejudicial. We disagree. The trial court did not abuse its discretion in excluding this evidence and any presumed error was harmless.
1. The trial court did not err in excluding this evidence.
Generally, evidence of a person's character, including specific instances of uncharged misconduct, is inadmissible to prove that person's conduct on a specified occasion. (Evid. Code, § 1101, subd. (a); People v. Fuiava, supra, 53 Cal.4th at p. 667.) However, evidence of prior crimes and uncharged misconduct is admissible if it is relevant to prove some fact, such as motive, opportunity, intent, preparation, plan, knowledge or identity. (Evid. Code, § 1101, subd. (b); People v. Fuiava, supra, 53 Cal.4th at p. 667.)
At some point in time, evidence of a victim's character becomes too remote to have any probative value. (People v. Gonzales (1967) 66 Cal.2d 482, 500 [affirming trial court's exclusion of evidence showing violence that occurred seven years before the current crime].) A trial court may validly exclude evidence that is too remote in time and has minimal relevance. (People v. Fuiava, supra, 53 Cal.4th at p. 665 [finding no abuse of discretion, in part, when trial court excluded evidence of prior misconduct as too remote]; People v. Hall (1986) 41 Cal.3d 826, 833 [stating, in addressing a challenge to the exclusion of evidence of third party culpability, that "we do not require that any evidence, however remote, must be admitted"].)
In People v. Gonzales, supra, 66 Cal.2d 482, our Supreme Court upheld the trial court's decision to exclude testimony from a probation officer who would have testified that, seven years earlier, he had conducted an inquiry into the murder victim's reputation for violence. The probation officer had concluded that the victim had such a reputation. (Id. at pp. 499-500.) The defendants wanted to introduce this evidence to bolster their claim of self-defense. The Supreme Court determined, in part, that this evidence was too remote in time to have probative value. (Id. at p. 500.) In addition, the trial court had given the defendants an opportunity to present more recent evidence of the victim's reputation for violence. The defendants, however, produced no other witnesses. (Ibid.)
Here, Cervantes's juvenile conviction for rape in 1990 occurred about 25 years before this trial occurred in 2015. The trial court determined that this was too remote in time to warrant admission. The trial court, however, gave the defense the opportunity to present more recent evidence of Cervantes's reputation for violence. Under these circumstances, the court's decision was not outside the bounds of reason. (See People v. Gonzales, supra, 66 Cal.2d at p. 500.) This ruling was neither arbitrary, capricious nor patently absurd resulting in a manifest miscarriage of justice. (See People v. Carrington, supra, 47 Cal.4th at p. 195.) As such, the trial court did not abuse its discretion and this claim fails. In any event, any presumed error was harmless.
2. Any presumed error was harmless.
A trial court's discretionary ruling involving the ordinary rules of evidence does not normally implicate the federal Constitution. (People v. Cudjo (1993) 6 Cal.4th 585, 611; accord People v. Bradford (1997) 15 Cal.4th 1229, 1325 [disallowing defense evidence is not also the denial of the right to present a defense].) The standard of review for an evidentiary ruling is that enunciated in People v. Watson, supra, 46 Cal.2d at p. 836. (People v. Bradford, supra, 15 Cal.4th at p. 1325.) Under this standard, we must ask whether it is reasonably probable the verdict would have been more favorable to the defense had the trial court admitted the evidence regarding the culpability of the third parties. (Ibid.)
Here, the trial court permitted introduction of Cervantes's 2001 conviction for domestic violence (§ 273.5, subd. (a)). Further, the jury heard various witnesses explain Cervantes's reputation for violence. Ramirez knew Ohano had been "hanging out" with Cervantes before this fatal encounter. Ramirez agreed he had seen Cervantes be violent and Ramirez knew that Cervantes sometimes carried a knife. Ramirez agreed that, when Cervantes drank or was on drugs, he had a tendency to become agitated or violent. When he left with appellant to confront Ohano, Ramirez knew that both Ohano and Cervantes had been using drugs for several days. Ramirez conveyed to the jury that he had been afraid before this fatal encounter, saying, "I wouldn't want to be on [Cervantes's] bad side. I wouldn't want to be the person that he's fighting."
Appellant told the jury that Cervantes was known by his prison moniker as "Crunch." During the fistfight, appellant believed others were saying "stick 'em" or something similar. Appellant knew that Cervantes had a reputation for carrying a knife, and he was concerned that Cervantes was going to stab him. Moreover, the jury heard that, while appellant was in custody, he made voluntary statements to a correctional sergeant. Appellant knew that Ohano's uncle "was a guy named Crunch." Appellant knew that Cervantes "was a bad guy" who "had done some prison time. He was known for heavy violence."
Finally, the jury heard forensic evidence establishing that Cervantes had a substantial amount of methamphetamine in his system at his time of death. The jury learned that this drug may increase one's aggressiveness.
Based on this record, even if the trial court abused its discretion in failing to permit introduction of Cervantes's juvenile conviction for rape, any presumed error was harmless. It is not reasonably probable the verdict would have been more favorable to appellant had the trial court permitted admission of this evidence. (See People v. Bradford, supra, 15 Cal.4th at p. 1325.) Accordingly, prejudice is not present and this claim fails.
III. The Trial Court Did Not Abuse Its Discretion In Imposing The Maximum Possible Sentence Against Appellant.
Appellant claims the trial court abused its discretion by imposing the maximum possible sentence of 38 years four months. He contends his case should be remanded for resentencing.
A. Background.
1. Defense counsel's comments at sentencing.
Prior to sentencing, defense counsel asked the trial court to consider imposing the middle term on appellant's convictions. She asked for imposition of one consecutive term for assault with a deadly weapon, with the other assault convictions stayed pursuant to section 654. She argued that, although there were four victims, appellant fired his shots "indiscriminately" at the second vehicle as a "single course of conduct."
Regarding factors in mitigation, defense counsel argued that Cervantes was the initial aggressor and a willing participant in the encounter. Unusual circumstances existed because "a great provocation" started this altercation. It was very unlikely that the same situation and circumstance would occur again.
2. Appellant's comments at sentencing.
After defense counsel made her comments, various members of appellant's family and other associates spoke on his behalf. They generally conveyed that appellant had matured, learned from his past mistakes, and he deserved a second chance. Appellant also spoke, expressing great remorse to Cervantes's family for taking Cervantes's life. Appellant apologized to the trial court, saying he accepted responsibility for what happened. He said he "was trying to help calm the situation" and put himself in a "tense situation" that led to him taking a life. Appellant asked for mercy, saying his two sons were 12 and 10 years old, and they needed him. Appellant was afraid his sons were going down the wrong path. He asked for a chance to be out of prison before his sons started high school.
3. The trial court's comments at sentencing.
Prior to imposing sentence, the trial court noted it had read and considered the probation officer's report and various letters from people, including from appellant and his family. The trial court found that appellant was not eligible for probation. The court reviewed circumstances in aggravation pursuant to California Rules of Court, rule 4.421(a). The court stated that "the crime involved great violence, great bodily harm, the threat of great bodily harm, and a high degree of cruelty, viciousness, and callousness. The victims were particularly vulnerable, both unarmed and cowering in a vehicle for protection."
All future references to rules are to the California Rules of Court unless otherwise noted.
Regarding circumstances in aggravation pursuant to rule 4.421(b), appellant "has engaged in violent conduct which indicates a serious danger to society. [Appellant's] prior convictions as an adult or sustained petitions in juvenile proceedings are numerous and of increasing seriousness. [Appellant's] prior performance on probation or parole was unsatisfactory."
Pursuant to rule 4.423, the trial court found no factors to consider in mitigation regarding appellant or the crime. Pursuant to rule 4.425(a), the crimes involved separate acts of violence or threats of violence. The court noted that the jury found true the firearm enhancement in the five convictions.
The trial court denied probation and sentenced appellant to state prison. The court noted that appellant's criminal history began as a juvenile when he was placed on probation for burglary and vehicle theft. He was eventually committed to the California Youth Authority (CYA) after several violations of probation and committing battery. He "has engaged in violent conduct, endangering not only the victims, but innocent members of our community that were exposed to the gunfire. He has demonstrated by his actions that he poses a threat to the safety of our community."
The trial court imposed the maximum sentence allowed of 38 years four months. This sentence was comprised of the upper term of 11 years for voluntary manslaughter, along with a 10-year firearm enhancement. In addition, consecutive sentences were imposed for each of the four convictions of assault with a deadly weapon. These were 1/3 of the middle term (one year) along with 1/3 of the term for the firearm enhancements (three years four months).
The sentencing triad for voluntary manslaughter is three, six, or 11 years. (§ 193, subd. (a).) The sentencing triad for assault with a deadly weapon (firearm) is two, three or four years. (§ 245, subd. (a)(2).) For the firearm enhancement under section 12022.5, subdivision (a), an additional and consecutive prison term of either three, four or 10 years may be imposed.
B. Standard of review.
The party attacking a trial court's sentence has the burden to show that the decision was clearly irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376.) In the absence of this showing, we are to presume that the trial court acted to achieve legitimate sentencing objectives and the trial court's determination will not be set aside on appellate review. (Id. at pp. 376-377.) We review a trial court's sentencing determination for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at p. 377.) In applying this standard, it is not our role to substitute our reasons for those omitted or misapplied by the trial court, nor to reweigh valid factors bearing on the decision below. (People v. Scott (1994) 9 Cal.4th 331, 355.)
C. Analysis.
Appellant argues that the trial court relied upon factors to impose the maximum sentence that were "inaccurate, improper, or not supported by the record." He also claims that the court failed to account for factors in mitigation. We find no abuse of discretion and affirm.
Section 1170 was amended effective in 2007 "so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states." (People v. Wilson (2008) 164 Cal.App.4th 988, 992.) The choice of the appropriate term, thus, rests "within the sound discretion" of the court. (§ 1170, subd. (b).) To determine whether circumstances justify imposition of the upper or lower term, a trial court is to consider the trial record, the probation officer's report, and statements submitted by the defendant, the prosecutor and the victim or victim's family. (§ 1170, subd. (b); accord People v. Sandoval, supra, 41 Cal.4th at p. 848.)
The trial court can base an upper term sentence "'upon any aggravating circumstance that the court deems significant, subject to specific prohibitions. [Citations.]'" (People v. Weber (2013) 217 Cal.App.4th 1041, 1063-1064, quoting People v. Sandoval, supra, 41 Cal.4th at p. 847.) The articulated reasons must be supported by a preponderance of the evidence in the record and they must reasonably relate to the particular sentencing determination. (Scott, supra, 9 Cal.4th at pp. 349-350.)
A trial court may not use a single fact both to impose the upper term and to impose an enhancement. (§ 1170, subd. (b); Scott, supra, 9 Cal.4th at p. 350; rule 4.420(c).) A trial court may not use a single fact to impose the upper term and a consecutive sentence. (People v. Osband (1996) 13 Cal.4th 622, 728.) Similarly, a fact that constitutes an element of the offense may not be used to aggravate or enhance a sentence. (Scott, supra, 9 Cal.4th at p. 350; rule 4.420(d).) A court can, however, use the same fact or facts to aggravate both the base term for an offense and the sentence on an enhancement. (People v. Moberly (2009) 176 Cal.App.4th 1191, 1198.)
Appellant devotes relatively extensive briefing for each factor which the trial court relied upon during sentencing. He finds fault with each factor. We need not, however, respond to all of appellant's claims and review each individual factor. Instead, only a single factor in aggravation is necessary to support imposition of an upper term. (People v. Black (2007) 41 Cal.4th 799, 813 ["Under California's determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term."].) Appellant's personal history supports the trial court's ruling.
As a juvenile, appellant had seven separate criminal dispositions, all resulting in wardship:
(1) In 1998 for felony burglary (§ 459);
(2) In 1999 for a failure to obey the juvenile court (Welf. & Inst. Code, § 777);
(3) In 1999 for a separate failure to obey the juvenile court (Welf. & Inst. Code, § 777);
(4) In 2000 for felony vehicle theft (Veh. Code, § 10851, subd. (a)). Appellant was sent to a boot camp;
(5) In 2000 for a failure to obey the juvenile court (Welf. & Inst. Code, § 777). Appellant was sent to boot camp;
(6) In 2000 for a separate failure to obey the juvenile court (Welf. & Inst. Code, § 777). Appellant was remanded for 180 days and his boot camp placement was stricken; and
(7) In 2000 for a misdemeanor battery (§ 242), resulting in a commitment with CYA. He was paroled by CYA in March 2003, and was dishonorably discharged in June 2007.
As an adult, appellant had two convictions prior to this present crime. Following his parole from CYA, he was convicted in 2005 for misdemeanor trespass (§ 602, subd. (l)), and he was sentenced to 39 days in jail. He also had a 2008 conviction for a felony class "C" theft that occurred in the state of Washington. He was sentenced to one day in jail, 40 hours community service, and 12 months suspended.
We note that appellant moved to Seattle in 2005 and he returned to Fresno in 2008.
The probation report did not list the Washington statute for this offense.
This record supports the trial court's determination that appellant's prior performance on probation and parole was unsatisfactory. (Rule 4.421, subd. (b)(5).) In addition, there is support for the trial court's determination that appellant's prior convictions "are numerous or of increasing seriousness." (Id., subd. (b)(2).) Appellant's personal history establishes at least one factor in aggravation to support imposition of the upper terms of imprisonment against him. (See People v. Black, supra, 41 Cal.4th at p. 813 [only a single aggravating circumstance is needed to impose an upper term].) The trial court's reasons were supported by a preponderance of the evidence and the identified aggravating circumstances reasonably related to this particular sentencing determination. (See Scott, supra, 9 Cal.4th at pp. 349-350.) Further, the imposition of a consecutive term was warranted by the existence of multiple victims. (See, e.g., People v. Calhoun (2007) 40 Cal.4th 398, 408 [acts of violence against several persons justifies increased punishment]; People v. Leung (1992) 5 Cal.App.4th 482, 508 [consecutive sentences were properly imposed for multiple victims].) We presume the trial court acted to achieve legitimate sentencing objectives. (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)
We also find no abuse of discretion when the trial court found no factors in mitigation. Although a sentencing court errs in disregarding an undisputed factor in mitigation, many alleged mitigation factors are in dispute. The trial evidence may not establish a factor or they may not be mitigating under the facts of the case. (In re Handa (1985) 166 Cal.App.3d 966, 973.) The mere assertion of a factor in mitigation does not establish it. (People v. Lambeth (1980) 112 Cal.App.3d 495, 500.)
The weighing of factors in aggravation and mitigation involves a flexible quantitative and qualitative approach. (People v. Thornton (1985) 167 Cal.App.3d 72, 77.) Based on the facts and circumstances of the case, it is for the sentencing court to determine what, if any, factors in mitigation are established and whether criminal conduct was excused or culpability reduced. (People v. Regalado (1980) 108 Cal.App.3d 531, 538.) A sentencing court may properly determine that a factor's mitigating influence is insignificant. (People v. Salazar (1983) 144 Cal.App.3d 799, 813; People v. Lambeth, supra, 112 Cal.App.3d at p. 500; People v. Regalado, supra, 108 Cal.App.3d at p. 539.) "Where an alleged factor in mitigation is disputable, the court may find an absence of mitigating factors and need not explain the reason for its conclusion. [Citations.]" (In re Handa, supra, 166 Cal.App.3d at p. 973.)
Here, the alleged factors in mitigation were reasonably in dispute based on the facts of this case, and our Supreme Court has cautioned that an appellate court may not reweigh sentencing factors. (People v. Scott, supra, 9 Cal.4th at p. 355 [appellate court will not "reweigh valid factors bearing on the decision below"]; People v. Jordan (1986) 42 Cal.3d 308, 317 ["The Court of Appeal . . . erred when it reweighed the circumstances in mitigation rather than limiting its review to whether the sentencing court abused its statutory discretion"].) The judge heard the trial evidence firsthand, read the probation report, heard arguments from defense counsel at sentencing, heard comments from appellant and his supporters at sentencing, and considered letters submitted by the defense. We presume the sentencing judge considered the relevant factors because the record does not affirmatively reflect otherwise. (Rule 4.409.)
Finally, when a trial court gives both proper and improper reasons for imposing a sentence, "a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 492.) Based on appellant's criminal record and his conduct in this present crime, it is not reasonably probable the trial court would have chosen a lesser sentence even if some of its other reasons for selecting the upper term were allegedly improper.
Based on this record, appellant has not established that the trial court's sentencing decision was clearly irrational or arbitrary, or that no reasonable person could agree with it. This record does not affirmatively reflect that the trial court failed to consider mitigating factors. Accordingly, appellant has failed to establish an abuse of discretion and this claim fails.
IV. A Limited Remand Is Required To Allow Appellant The Opportunity To Make A Record Of Information Relevant To His Eventual Youth Offender Parole Eligibility Hearing.
The parties agree, as do we, that a limited remand is required to afford appellant the opportunity to make a record of information relevant to his eventual youth offender parole eligibility hearing.
Section 3051, which became effective January 1, 2014, was enacted to bring juvenile sentencing into conformity with the limitations imposed by the Eighth Amendment. (Franklin, supra, 63 Cal.4th at p. 277.) As currently drafted, this statute provides a youth offender parole hearing for certain prison inmates during either their 15th, 20th, or 25th year of incarceration, depending on the length of the imposed prison sentence. (§ 3051, subd. (b)(1)-(4).) Effective January 1, 2016, this section applied to anyone who committed crimes when they were 22 years of age or younger. (Former § 3051, subd. (b)(1); Stats. 2015, ch. 471, § 1.) Section 3051 applies retrospectively to all eligible youth offenders regardless of the date of conviction. (Franklin, supra, 63 Cal.4th at p. 278.)
Here, appellant was born in May 1986 and he committed the present offenses in April 2009, making him approximately 22 years old at that time. He was sentenced in this matter on March 17, 2016. Based on his age at the time of these crimes, appellant is eligible for a youth offender parole hearing during his 15th year of incarceration. (§ 3051, subd. (b)(1).)
This sentencing record does not establish that appellant had an opportunity to make a record of information relevant to his eventual youth offender parole eligibility hearing. The parties did not discuss section 3051 at sentencing, and the probation report was silent on that issue. At sentencing, defense counsel stated she had not received appellant's juvenile file. As such, we agree with the parties that remand is appropriate.
In Franklin, the high court remanded "the matter to the trial court for a determination of whether [the defendant] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) The court stated that "[i]f the trial court determines that [the defendant] 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 defendant] 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 of Parole Hearings], years later, may properly discharge its obligation to 'give great weight to' youth-related factors (§ 4801, subd. (c)) 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.'" (Ibid.)
Under Franklin, this matter is remanded to give the parties the opportunity to make a record of information relevant to appellant's eventual youth offender parole eligibility hearing under section 3051.
V. We Remand This Matter For The Trial Court To Exercise Its Discretion Regarding The Firearm Enhancement.
At the time of appellant's sentencing in this matter, section 12022.5 imposed a mandatory additional and consecutive term of imprisonment in the state prison for three, four or 10 years on any person who personally used a firearm in the commission of a felony or attempted felony, unless use of a firearm was an element of that offense. (Former § 12022.5, subd. (a).)
On October 11, 2017, the Governor approved Senate Bill No. 620 (Stats. 2017, ch. 682), which amended sections 12022.5 and 12022.53. Under the amendments, a trial court now has discretion to strike or dismiss these firearm enhancements otherwise required to be imposed at the time of sentencing. (§§ 12022.5, subd. (c); 12022.53, subd. (h).) Via supplemental briefing, the parties agree, as do we, that this amendment applies retroactively to appellant because his case is not yet final. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
Although respondent agrees this amendment applies in this situation, respondent asserts that remand is unnecessary. Respondent claims there is no reasonable probability the trial court would exercise its discretion to strike appellant's firearm enhancement. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [finding it unnecessary to remand matter for trial court to consider retroactive discretionary authority].)
To support its position, respondent notes that the trial court imposed the maximum possible sentence and all subordinate terms were imposed consecutively to the principal term. When imposing sentence, the trial court focused on the seriousness of appellant's actions during this shooting, including the violence and great bodily harm he inflicted, the cruelty, viciousness, and callousness he displayed, and the vulnerability of the victims. The trial court commented on appellant's long criminal history, which began as a juvenile. Respondent asserts the trial court made it clear it would not lessen appellant's sentence and remand "would be pointless." We disagree that remand is unnecessary.
Although it appears unlikely the trial court will strike or dismiss the imposed firearm enhancements, we are already remanding this matter for further proceedings pursuant to Franklin, supra, 63 Cal.4th 261. It is unknown what additional information, if any, may be presented in the Franklin hearing that could impact the trial court's discretionary authority to strike appellant's firearm enhancement. Accordingly, we remand this issue in the interests of justice.
We take no position regarding how the trial court should exercise its discretion.
DISPOSITION
This matter is remanded to the trial court for the limited purpose of determining whether appellant was afforded an adequate opportunity to make a record of information that will be relevant to his eventual youth offender parole eligibility hearing and, if not, to allow him and the People an adequate opportunity make such a record consistent with Franklin, supra, 63 Cal.4th at p. 284.
This matter is further remanded to the trial court for the limited purpose of allowing the court to consider whether to strike or dismiss the firearm enhancement pursuant to section 12022.5, subdivision (c). If the court strikes or dismisses the firearm enhancement, then the court shall resentence appellant accordingly and shall forward an amended abstract of judgment to the appropriate authorities. If the court declines to strike or dismiss this enhancement, appellant's previously imposed sentence shall remain in effect. In all other respects, the judgment is affirmed.
/s/_________
LEVY, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.