Opinion
C076097
03-01-2017
In re: EDWIN A. STEVENSON, On Habeas Corpus.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 06F02757)
Petitioner Edwin A. Stevenson, who was 16 years old at the time he shot and killed the victim, contends his 50-year-to-life sentence is the functional equivalent of life without the possibility of parole and, therefore, a violation of the Eighth Amendment prohibition against cruel and unusual punishment. Petitioner acknowledges this issue has been rendered moot. (Penal Code § 3051; People v. Franklin (2016) 63 Cal.4th 261 (Franklin).) Nevertheless, he urges us to remand the matter in light of Franklin for the trial court to determine whether he had been given the opportunity to make a record of the youth-related mitigating factors that reflect his diminished culpability as a juvenile and will be available for consideration at a youth offender parole hearing as provided in section 3051. The Attorney General argues that petitioner took full advantage of the opportunity to make a record of youth-related mitigating factors and introduced compelling testimony of the multiple traumas he experienced as a child as well as the potential he demonstrated while immersed in Native American rituals and culture on a Pinoleville Pomo Nation reservation. We agree with the Attorney General that on the unusual record before us, we need not remand the matter.
Further undesignated statutory references are to the Penal Code.
DISCUSSION
Defendant and the Attorney General agree his constitutional challenge to the sentence is now moot. In Franklin, the Supreme Court held the Legislature's enactment of section 3051, which provides juvenile offenders with an opportunity for parole at least by their 25th year of incarceration, renders moot an assertion that a lengthy sentence is the functional equivalent of a sentence of life without parole (LWOP) in violation of Miller v. Alabama (2012) 567 U.S. ___ (Miller). (People v. Cornejo (2016) 3 Cal.App.5th 36, 66 (Cornejo).) The new legislation supersedes the mandated sentences of persons who were under the age of 23 at the time of their offense explicitly to bring juvenile sentencing into conformity with Miller and its progeny. (Franklin, supra, 63 Cal.4th at p. 277.) "The statute simply and clearly makes the current sentencing scheme constitutional by providing each juvenile offender, universally and on a specified schedule, with the meaningful opportunity for release within their lifetime that the Eighth Amendment demands." (People v. Scott (2016) 3 Cal.App.5th 1265, 1283.) As a consequence, section 3051 abolished de facto life sentences.
Nevertheless, the Supreme Court in Franklin remanded the matter to the trial court for the limited purpose of determining whether or not the juvenile offender "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 recognized that sections 3051 and 4801 "contemplate that information regarding the juvenile offender's characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the [Parole] Board's consideration. For example, section 3051, subdivision (f)(2) provides that '[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime . . . may submit statements for review by the board.' Assembling such statements 'about the individual before the crime' is typically a task more easily done at or near the time of the juvenile's offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away." (Id. at pp. 283-284.)
It was unclear in Franklin whether the juvenile offender had sufficient opportunity "to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) The court instructed that if the trial court determined Franklin had been denied the opportunity to establish a record, "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. Franklin 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 [Parole] Board, 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' [Citation.]" (Ibid.)
It is true that here, as in Franklin, petitioner was sentenced before the United States Supreme Court decided Miller, supra, 567 U.S. ___ and before the California Legislature enacted sections 3051 and 4801. As a result, neither the trial court nor the parties could have foreseen the dramatic changes in juvenile sentencing or imagined the significance of establishing a record of youth-related factors at the time of sentencing that would inform a parole board's evaluation of the petitioner 25 years in the future. Yet the record does memorialize the factors Miller and its progeny find relevant to an assessment of diminished culpability and potential for rehabilitation. Indeed, the record documents the tremendous challenges petitioner faced in the same way the record in Cornejo, supra, 3 Cal.App.5th 36, 66 details the hurdles faced by defendants Adam Cornejo and Isaac Vasquez. In Cornejo, we concluded that because the defendants had a sufficient opportunity to make a record regarding their characteristics and circumstances at the time they opened fire, there was no need to remand the matter to the trial court for a determination as to whether they had an opportunity to produce such evidence. (Id. at pp. 69-70.) So too the record before us obviates the need for a Franklin-type remand.
Since they were sentenced after Miller was decided, the defendants in Cornejo understood the significance of any mitigating circumstance related to their age. They took advantage of the Miller dictates and submitted sentencing memoranda urging the trial court to impose a term of 20 years to life based on Miller. Adam Cornejo bolstered his request with 23 character letters attesting to his good character despite his gang involvement. Isaac Vasquez included a neuropsychological evaluation explaining that he had " 'severe mental disabilities' " and, although his chronological age at the time of the offense was 16, " 'his mental age is 9.' " (Cornejo, supra, 3 Cal.App.5th at p. 69.) Besides his mental disabilities, he asserted he was born with methamphetamine in his system, his mother was addicted to drugs, his father was absent, he was sexually abused by a brother, and his family became homeless when he was 12 or 13 years old. His sentencing memorandum concluded, " 'Given [Isaac's] impairments and total lack of support, it is not realistic to think that he could have extricated himself from his family environment. All of the foregoing factors act to reduce [Isaac's] moral culpability.' " (Ibid.)
Petitioner's, his brother's, and a psychologist's testimony at petitioner's trial described a very similar dysfunctional stew. In lengthy testimony, all three told the same tragic story. Petitioner's parents were both alcoholics and drug addicts; his mother died when he was five years old and his father died when he was nine or 10. Most traumatizing, it was petitioner who found his father's corpse and watched as emergency personnel loaded it onto a gurney. He was profoundly traumatized by watching his father's arms fall off the stretcher. He had nightmares. Angry and grieving, he joined a criminal street gang and began to act out by stealing cars, hitting other people, and doing violent acts. His grandparents moved petitioner and three of his siblings to the Pinoleville Pomo Nation reservation in Ukiah. Petitioner was 12 or 13 years old.
Respondent's request for judicial notice of the appellate file in case No. C060837 is construed as a motion to incorporate by reference, and as such, is granted. --------
The psychologist, an expert on Native American culture, knew petitioner's grandmother, treated his father, and performed a psychological assessment of petitioner. He opined that the trauma of finding his father dead at age nine or 10 caused him to experience flashbacks, nightmares, and anger. The psychologist explained that native ceremonies "promote love and compassion, and so it is opposite to the values of violence." Participation can be transformational. He testified that after participating in native rituals, including dance, petitioner began to heal and his behavior improved. He began thriving at school.
Before his grandmother could secure a house on the reservation, sadly she died, and so did his grandfather a short time later. According to the psychologist, that is when "everything fell apart for him. In his own words, he said everything stopped. All his growth, all his development, everything he was doing good stopped for him and everything fell apart. He didn't have a place to live. He didn't have any parents, basically." He had bonded with his grandmother; she had been very supportive. When his grandparents died, petitioner's "safety net was pulled out from under him, psychologically."
Near the same time, an aunt died in Sacramento and his older brother left to make arrangements for a funeral. Through a miscommunication, petitioner was left in Ukiah. Petitioner felt abandoned. Distraught, he secured a ride to Sacramento, but when he met up with his brother, his brother could not take care of him. Petitioner then was 15 years old, a mere 5 feet 2 inches tall, and on his own. He was in and out of foster care. He stayed with his codefendant, an active gang member, became more involved in gang conduct, and admitted to committing other crimes with his codefendant.
Petitioner admitted to earning money by selling marijuana. He also admitted to being a Franklon gang member, a subset of the Norteño street gang, and to carrying a weapon for protection. He told the psychologist someone hit him with a board in the park. A few days before the fatal shooting, petitioner was shot in the eye.
The psychologist testified that petitioner's psychological traumas, his substance abuse, his small physical stature, the lack of a consistent home, and his infusion into the Hispanic gang culture made him hypersensitive to perceived threats. He opined that the "acute psychological dynamics going on with him at the time [of the shooting], because of the threat on his life, him being told that somebody was out to kill him and get him out of the way, because of the actual physical assault and psychological trauma by somebody hitting him in the park with a board, . . . [¶] . . . [¶ -- and because he was actually shot at, this impaired his psychological need for physical safety, psychological physical needs and his psychological safety needs. And he was actually traumatized by that to the point of being hypervigilant and he was -- with the associated emotions of fear and apprehension. And that -- he was in that state, afraid for his life, and then he went to the party."
Cumulatively, petitioner's, his brother's, and the expert's testimony created the very record prescribed by Franklin. This testimony provides a baseline against which a parole board can measure petitioner's rehabilitation many years in the future. Because the testimony was comprehensive and the portrait it created quite complete, we conclude there is no need to remand the case for an additional hearing. Petitioner already has received what Franklin promises.
DISPOSITION
The petition for writ of habeas corpus is denied.
RAYE, P. J. We concur: BLEASE, J. ROBIE, J.