Opinion
E071242
07-08-2020
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN ELIJAH VORISH, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Martin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1300003) OPINION APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson, Judge. Affirmed. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Martin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
I.
BACKGROUND
In 2012, when he was 16 years old, appellant and defendant, Justin Elijah Vorish, shot and killed someone while committing a robbery. A jury convicted defendant of one count of first degree murder (Pen. Code, § 187, subd. (a); count 1) and one count of second degree robbery (§§ 221, 664; count 2). The jury also found true the allegations that defendant caused the victim's death by personally and intentionally discharging a firearm (§ 12022.53, subd. (d)).
The facts of defendant's offenses are not relevant to the issues on appeal.
All future statutory references are to the Penal Code.
In August 2018, the trial court sentenced defendant to an aggregate sentence of 50 years to life. At sentencing, defendant's counsel requested a hearing under the authority of People v. Franklin (2016) 63 Cal.4th 261 (Franklin). The trial court calendared the Franklin hearing for December 2018, but the hearing was not held. To date, defendant's Franklin hearing has not taken place.
On appeal, defendant requests that we remand the matter and direct the trial court to hold a Franklin hearing. Defendant also contends his trial counsel was ineffective. We conclude the appropriate remedy is to "affirm without prejudice to [defendant's] filing a motion 'for a Franklin proceeding under the authority of section 1203.01' and [In re] Cook [(2009) 7 Cal.5th 439 (Cook)]." (People v. Medrano (2019) 40 Cal.App.5th 961, 963 (Medrano).) We also reject defendant's claim that his trial counsel was ineffective for not pursuing a Franklin hearing at sentencing.
II.
DISCUSSION
A. Remand for a Franklin Hearing Is Not Warranted
Defendant contends he is entitled to a remand for a Franklin hearing. We disagree.
"In Franklin, supra, 63 Cal.4th 261, the Supreme Court held that when a juvenile offender receives an indeterminate life sentence, the offender must be 'given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth.' [Citation.] The case was remanded to the trial court 'for the limited purpose of determining whether [the offender] was afforded an adequate opportunity to make a record of information' relevant to his eventual youth offender parole hearing. [Citation.]" (Medrano, supra, 40 Cal.App.5th at p. 967.)
As in Medrano, "[t]he record contains no indication that [defendant] was not given an adequate opportunity to make a record of mitigating youth-related evidence as contemplated in Franklin. . . . The record does not indicate that [defendant's] opportunity to exercise that right was inadequate in any respect. Rather, it appears that he merely failed—whether by choice or by inadvertence—to exercise it." (Medrano, supra, 40 Cal.App.5th at p. 967.) As this court observed in Medrano, a juvenile offender may file a motion under section 1203.01 and Cook "for the purpose of making a record of mitigating youth-related evidence." (Id. at p. 968.) We therefore conclude, as we did in Medrano, that the appropriate remedy is to affirm the judgment without prejudice to defendant's "filing a motion 'for a Franklin proceeding under the authority of section 1203.01' and Cook." (Ibid.)
B. Defendant's Trial Counsel Was Not Ineffective
Defendant contends his trial counsel was ineffective for (1) not requesting a Franklin hearing at sentencing, (2) not providing mitigating youth-related evidence at defendant's sentencing, and (3) not obtaining defendant's explicit waiver to postpone the Franklin hearing after sentencing. We disagree.
"When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) Accordingly, "[w]hen the record on direct appeal sheds no light on why counsel failed to act in the manner challenged [the defendant asserts counsel should have acted], defendant must show that there was '"'no conceivable tactical purpose'" for counsel's act or omission. [Citations.]'" (People v. Centeno (2014) 60 Cal.4th 659, 675.) "[R]arely will an appellate record establish ineffective assistance of counsel." (People v. Thompson (2010) 49 Cal.4th 79, 122.) If the record sheds no light on counsel's actions, the claim must be rejected unless no satisfactory explanation exists or counsel was asked for an explanation and failed to provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Defendant argues his trial counsel was ineffective for requesting a 90-day continuance for defendant's Franklin hearing instead of pursuing one at sentencing. We are unaware of any authority that suggests defense counsel must pursue a Franklin hearing at sentencing. Regardless, defense counsel requested the continuance because he was waiting for relevant "transcripts" to be produced. This suggests that counsel did not believe he could be adequately prepared for a Franklin hearing without the transcripts. We do not know which transcripts counsel was referring to, and we do not know whether they were necessary for counsel to competently prepare for a Franklin hearing. If they were, then trial counsel potentially would have been ineffective for not requesting a continuance. On this scant record, it is conceivable that defense counsel reasonably concluded that a Franklin hearing at a later date would be more beneficial for defendant.
As for defendant's second argument, we cannot conclude on this record that defense counsel was ineffective for failing to present mitigating youth-related evidence at sentencing. As we concluded above, defendant may still pursue a Franklin hearing, and we do not know what defense counsel has done in preparation for a Franklin hearing during the pendency of this appeal. It is conceivable that defense counsel has been adequately preparing for the hearing while this appeal remains pending. There is no evidence in the record that "memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away." (Franklin, supra, 63 Cal.4th at p. 284.) There is no evidence defendant has suffered any prejudice. As far as we know, defense counsel could still competently prosecute a Franklin hearing in the future.
For this reason, we reject defendant's implication that his trial counsel has been ineffective by failing to pursue a Franklin hearing while this appeal has been pending. --------
Moreover, we also do not know whether defendant even wanted a Franklin hearing to begin with, or whether he still wants one. The only pertinent evidence in the record is that the parties agreed to hold the hearing 90 days after sentencing so that relevant transcripts could be completed. As Cook recognized, some offenders may decide to "forgo a Franklin proceeding altogether. Delving into the past is not always beneficial to a defendant." (Cook, supra, 7 Cal.5th at p. 459.)
Defendant's final argument, as we understand it, is that his trial counsel was not permitted to request that the Franklin hearing be continued, and that the trial court was not permitted to grant the request, because defendant did not explicitly "waive" his right to a Franklin hearing at sentencing. We disagree. Defendant provides no authority to support his position, and we are unaware of any. Nothing in Franklin, Cook, or elsewhere suggests that a Franklin hearing cannot be continued unless the defendant explicitly agrees to a continuance on the record.
III.
DISPOSITION
The judgment is affirmed without prejudice to defendant's filing a motion "for a Franklin proceeding under the authority of section 1203.01" and Cook. (Cook, supra, 7 Cal.5th at p. 460.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.