Opinion
H042131
03-12-2018
THE PEOPLE, Plaintiff and Respondent, v. MARCUS CASILLAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1122385)
I. INTRODUCTION
A jury convicted defendant Marcus Casillas of first degree murder (Pen. Code, § 187) and found that he personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (b), (c), & (d)). The trial court sentenced defendant to an indeterminate term of 50 years to life: 25 years to life for the murder, consecutive to 25 years to life for the section 12022.53, subdivision (d) allegation.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the trial court erred by finding the prosecution did not commit any discovery violations and by denying his requests for various sanctions for the claimed discovery violations. Defendant also contends the trial court erred by precluding him from introducing evidence of third party culpability. Further, defendant contends this court should remand the matter to the trial court so he can "have an opportunity to make a record for a youthful offender parole hearing" and so he can request the trial court exercise its discretion to strike the section 12022.53, subdivision (d) enhancement in light of recently-enacted Senate Bill 620 (Stats. 2017, ch. 682).
Defendant raised these claims in petitions for rehearing.
For reasons that we will explain, we will affirm the judgment but order a limited remand so the trial court can (1) determine whether defendant had an adequate opportunity to make an accurate record of his circumstances and characteristics at the time of his offense, in anticipation of a future youth offender parole hearing, and (2) consider whether to exercise its discretion to strike the section 12022.53, subdivision (d) enhancement.
II. BACKGROUND
Defendant was convicted of murdering his wife, Valerie Casillas. Valerie was last seen getting into defendant's car in the early morning hours of October 2, 2011. Valerie's body was found three days later, in a ravine on the side of Sierra Road, in the eastern foothills of San Jose. At trial, the prosecution's case included evidence that defendant had committed prior domestic violence against Valerie, evidence that defendant had made threats about using a gun, evidence that several particles of gunshot residue were found in defendant's car, and evidence that defendant's cell phone had been used in the area where Valerie's body was found. The defense theory was that someone else killed Valerie.
Since defendant, Valerie, and other witnesses have the same surname, we will refer to them by their first names for purposes of clarity and not out of disrespect.
Valerie was apparently pregnant at the time of her death, and defendant was originally charged with a second count of murder for the fetus. Also, a multiple murder special circumstance (§ 190.2, subd. (a)(3)) was originally alleged. Defendant moved to dismiss the charge alleging murder of the fetus pursuant to section 995, alleging there was no evidence that the fetus had "progressed beyond the embryonic stage." The prosecution conceded that issue, and the trial court dismissed the second murder count as well as the special circumstance allegation.
A. August 2009 Domestic Violence
Defendant and Valerie began dating in late 2008 or early 2009. There was an on-and-off pattern to the relationship. Sophia Salinas, Valerie's sister, often saw bruises on Valerie.
On August 29, 2009, defendant stabbed Valerie in the thigh. Defendant was arrested, and he was subsequently convicted of domestic violence. (§ 273.5.) At some point after defendant's arrest, Valerie wrote a letter asking for the charges to be "dropped, dismissed, or . . . lowered." She asserted that she had not wanted to press charges, that defendant did not deserve to be in jail, that the incident had been "an argument between us that went too far," that it was "both our faults," that she did not want a restraining order against defendant, and that she still wanted to be with defendant.
After defendant was released from custody, Valerie resumed a relationship with him: they married and had a child together in 2010.
B. April 2011 Domestic Violence
Around April 2011, defendant and Valerie argued at Salinas's house. Salinas's boyfriend, Gavino, told them to "quiet down" because Salinas's children were sleeping. Valerie and defendant went into the garage. When Salinas subsequently entered the garage, she saw that Valerie's face was red. Valerie said defendant had hit her.
Gavino told defendant to leave, and all four adults went outside in front of the house. Defendant continued to yell, while Gavino tried to "keep things calm." Defendant gestured towards his car's trunk and asked, "Do you want me to pull it out?" After that incident, defendant moved in with his father, who lived on Orlando Drive in San Jose.
C. May 2011 Domestic Violence
Around May 2011, Salinas saw Valerie with a "busted lip," red on the side of her face, and "messed up" hair. Valerie said defendant had hit her again, and defendant was again incarcerated for a few months. However, Valerie moved in with defendant after he was released from custody.
While defendant's case from the May 2011 incident was pending, Valerie wrote a statement at the police department. She wrote that she did not want "someone [to] go to jail on [her] lies." She claimed she had called the police and said that defendant had hit her so defendant would not keep their daughter.
D. September 2011 Arguments and Threats
In late August 2011 or early September 2011, Valerie moved into her cousin Yvonne Calderon's home on Waverly Avenue in San Jose. Valerie said she was scared that defendant "was going to do something."
While Calderon was helping Valerie move some of her belongings, defendant showed up and argued with Valerie. Defendant made a hand gesture simulating a gun and threatened to "pop pop" their family.
At some point "a little bit before" Valerie's disappearance and death, Valerie had a black eye. Valerie said she "wanted to change her life" and that she "wanted out."
A few days before Valerie's disappearance and death, Valerie moved more of her belongings from defendant's home. Defendant was there, and he began arguing with Valerie. The argument became "pretty heated." Defendant told Valerie, "I'll get my shit and kill everybody in your house. You know me, Valerie." Valerie responded, "Don't threaten me."
At about midnight on the Friday before Valerie went missing, her uncle, Manuel Calsadillas, went over to the Waverly Avenue house to help Valerie with something. Valerie's car was not there, so Calsadillas waited in the driveway. Defendant parked behind him, got out, and asked Calsadillas where Valerie was. Defendant seemed angry. He stated, "I'm tired of her shit. I'm tired of her games." He also said, "I have a heater, and I'm going to take care of this." Defendant had a gun in his pants.
E. Events of October 1 and 2 , 2011
On Saturday, October 1, 2011, Valerie helped Salinas shop for a birthday party Salinas was throwing for her son the next day. That night, Valerie told Salinas that she had seen defendant and a friend go somewhere with a gun.
Calderon saw defendant that night, as she was leaving her home to go to the store. Defendant drove up, stopped, asked where Valerie was, and looked inside Calderon's car. When Calderon returned from the store, defendant was at her house. Calderon's husband, Jarrod Rodriguez, told defendant to leave. Defendant did leave, but he came back with a friend after about 10 minutes. Rodriguez again told defendant to leave.
According to Calderon, defendant lifted his shirt and showed that he had a gun. Rodriguez told police he, too, had seen defendant lift his shirt and show a gun. Rodriguez subsequently denied seeing a gun but did confirm that defendant made a gesture to indicate he had a gun. Rodriguez said to defendant, "What are you going to do? Are you going to shoot me?"
Defendant again left, but he returned at about 1:30 or 2:00 a.m. on October 2, 2011. Valerie went to talk to defendant after giving Calderon her purse and phone to hold. Calderon saw Valerie get into defendant's car, and she saw the car drive off. She never saw Valerie again.
F. Investigation
On October 2, 2011, San Jose Police Officers went to defendant's address on Orlando Drive. Defendant arrived home about 45 minutes later, driving a silver Pontiac Grand Am.
Defendant's car was "very clean." Inside defendant's car there were reddish-brown stains that appeared to be blood. There was a pair of black knit gloves inside the car on the driver's seat. The carpet in the front of the car was wet. The inside of the car appeared to have been recently cleaned. The car was towed to be processed for evidence.
There was writing on a wall inside defendant's residence. It read: "Val did all this. She ruined my life. . . . I love my family." Also written on the wall was the statement, "Marc [defendant] is a liar." Below that were the words "liar" and "ho."
In the garage of defendant's residence, police found a black BB gun. In the glove box of defendant's car, police found a novelty butane lighter that was "gun metal," or dark gray.
G. Discovery of Valerie's Body
On October 5, 2011, two employees of the Santa Clara County Roads Department were working on Sierra Road. As they turned their vehicle at a turnout on the road, one of the employees saw Valerie's body below the turnout. There was about a 10 to 12-foot drop-off at the turnout, and the body was lying face down in a ravine at the bottom of the drop-off. The employees called their dispatcher, who called the sheriff.
At the turnout, police found three spent .380-caliber shell casings. Valerie's body had multiple gunshot wounds, and there were bullet holes in her clothing.
Forensic pathologist and medical examiner Joseph O'Hara performed an autopsy on October 6, 2011. At that point, Valerie had been dead at least 36 hours. O'Hara could not provide any further opinion about time of death because there is a 36-hour process in which rigor mortis develops, sets in, and recedes.
O'Hara observed a contusion and swelling above Valerie's right eyebrow, swelling and subgaleal hemorrhage on her left forehead, and a subscalp hemorrhage on the back of her head. These injuries—in three different places—could not have been the result of a fall after being shot. The acuteness of the injuries indicated that they had occurred at or near the time of her death.
Valerie also had abrasions on her chest and legs. The abrasions were possibly caused by her being pushed down a ravine, as they appeared to have been caused by the pinching of a tight fabric.
O'Hara identified 17 gunshot wound defects, including entry wounds, exit wounds, and reentry wounds. In all, he identified eight different tracks of bullet entries. One bullet entered Valerie's left pelvis and lodged in her body. Two bullets entered Valerie's chest and exited her back. A fourth bullet entered Valerie's back and exited her chest. A fifth bullet entered the side of Valerie's chest and lodged in her body. A sixth bullet entered Valerie's arm, exited her arm, entered her chest, and lodged there. A seventh bullet entered and exited her forearm, and an eighth bullet entered and exited her right hand. Valerie could have been standing when some of the bullets hit her, and it was possible that other bullets hit her as her body was going down the ravine.
H. Interview of Defendant's Brother
In a recorded interview, defendant's brother, Jason Casillas, told the police defendant owned a gun that "[p]robably look[ed] like a Beretta." Following the interview, Jason led an officer to a cabinet at the Orlando Drive residence where defendant had kept his gun, but the gun was not there. Jason told the officer that his prior statement about defendant owning a black Beretta was not true, but he then admitted that the statement had been true. He explained, "I did tell the truth but I feel like I'm getting my brother . . . in trouble."
At trial, Jason did not remember telling the police that defendant's gun looked like a Beretta. Jason claimed he was drunk during the period of time around Valerie's death and that he was intoxicated when he spoke to the police. However, the detective who interviewed Jason did not see any indications that Jason was drunk at the time.
I. Domestic Violence Expert
Richard Ferry, a licensed marriage and family therapist, testified as an expert in domestic violence and misconceptions about victims and their responses to abuse. He testified that some women leave the relationship after they have experienced domestic violence, but that others do not, even when the abuser has committed multiple acts of violence and has been punished criminally. A victim might stay with an abuser if they have a child together. Some victims of domestic violence are not passive; they may yell back. It would not surprise Ferry if a woman who was stabbed in the leg remained in a relationship with and married the stabber. It is common for a victim to recant or ask the District Attorney for leniency for the abuser.
Ferry explained the "power and control" dynamic of domestic violence. Abusers "don't tolerate their own feelings very well" and thus take things out on the victims. Homicides often result when the abuser finally realizes the relationship is over, because depression comes out as rage.
J. Cell Phone Expert
Jim Cook testified as an expert in "cell phones, cell sites, call detail records, and cellular technology." He explained that cell phones work on a "line-of-sight" basis with cell site tower antennas. Cell site tower antennas are divided into sectors, each of which faces a different direction. As a caller moves, his or her cell phone's reception is transferred to different cell sites. Typically, a cell phone call goes through the closest cell site. However, if something is blocking a nearby site, the call will connect through a site that is further away. Foliage, terrain, and buildings can all cause a call to connect through a cell site that is further away.
Cook took photos at the site where Valerie's body was found. The site was in a small valley where connection to cell phone network antennas would be impeded by the mountains surrounding it.
When a cell phone is used to make or receive a call or text, or if the phone is using data, it will create a "fingerprint" on the carrier's network. That information is used to create "call detail records." Cook reviewed the call detail records for both defendant's and Valerie's cell phones. He used the records to create diagrams and maps showing the location of cell sites where calls were made or received between September 30 and October 2, 2011. He drew circles to show the range of each cell tower that made a connection with defendant's and Valerie's cell phones.
At 2:13 a.m. on October 2, 2011, Valerie sent a text message to defendant: "Where are you at, Casillas?" Defendant responded at 2:14 a.m.: "Why? What the fuck, man? I told you about doing this shit." The text exchange continued, with Valerie asking defendant who he was with and where he was.
At 2:19 a.m., Valerie called defendant from the vicinity of defendant's residence; the call went to voicemail. At 2:49 a.m., defendant texted Valerie: "I want to talk." At 2:51 a.m., defendant texted her again: "I'll meet you."
At 2:51 a.m., defendant took a call from Valerie that lasted four minutes 14 seconds. The cell site data showed that defendant's cell phone was moving toward Valerie's house. Defendant called Valerie's phone three times between 2:59 a.m. and 3:00 a.m. The cell site data showed that defendant was in the vicinity of Valerie's house.
At 3:42 a.m., defendant's cell phone connected with the north-facing sector of a cell site near Interstate 680. The next call lasted for about 45 seconds and ended at a cell site that was north of the cell site where the call had started. These calls were consistent with defendant driving from the vicinity of Valerie's home to the site on Sierra Road where her body was found.
An incoming call at 4:45 a.m. went straight to voicemail and did not connect with a cell site, consistent with defendant's phone being in an area where there was interference due to terrain.
Defendant's phone received a text message from Valerie's phone at 5:35 a.m.: "Could you please tell my cousin that the baby's waking up?"
At 5:45 a.m., defendant's phone made an outbound call that connected through the southeast sector of a cell site tower in Fremont. The location of that call was consistent with defendant traveling from the site where Valerie's body was later found to Calaveras Road and back towards Interstate 680.
The call detail records showed three phone calls between 6:01 a.m. and 6:08 a.m. The calls were consistent with someone driving south on Interstate 680 from Calaveras Road towards San Jose.
Four additional calls made between 6:23 a.m. and 6:36 a.m. were also consistent with defendant traveling south on Interstate 680 towards his residence, based on the sector locations of the calls.
K. Gunshot Residue , Firearms , and DNA Experts
Melissa Dupee, an employee of the Santa Clara County Crime Lab, testified as an expert in gunshot residue. Gunshot residue is typically lost from a shooter's hands after about two or three hours. If a person wore gloves when shooting a gun, gunshot residue on the gloves would be lost if the person wore the gloves when moving the victim's body. Gunshot residue on the gloves would also be lost through regular movement, through the act of removing the gloves, and if the gloves were in a car that was being driven with the window down.
Dupee found gunshot residue particles on the gloves found in defendant's car. She found four particles on the right glove and two particles on the left glove. Her findings were consistent with the gloves having been worn by someone shooting a gun; the gloves could also have been in close proximity to a shooting. Dupee also found one particle of gunshot residue on the passenger seat of defendant's car and four particles on the driver's seat and door panel.
Eric Barloewen, another employee of the Santa Clara County Crime Lab, testified as an expert in firearms. He examined the three bullets that were recovered from Valerie's body. He determined that the bullets had been fired from a .380-caliber weapon, and he was able to narrow the possible gun manufacturers down to 11 (from a database of thousands), which included Beretta.
Jeremiah Garrido, also an employee of the Santa Clara County Crime Lab, testified as an expert in DNA. Defendant's DNA was found on the outside of the gloves that were in his car. Defendant's DNA was also found inside one of the gloves. Defendant's DNA was found on some of the blood samples taken from his car.
Garrido testified that in processing defendant's car for DNA, he moved the gloves from the driver's side of the car to the passenger seat.
L. Defense Case
On September 25, 2011, defendant was in the hospital being treated for four stab wounds: two in his right torso, one in his left torso, and one in his left thumb. Defendant underwent surgery at the hospital.
Defendant's father, Luis Casillas, saw defendant after the surgery on September 25, 2011. Defendant was in the hospital for at least three or four days. During some of that time, defendant's car was not at their home. After a few days, the car keys were dropped off with Luis, and he retrieved the vehicle, which was parked about 15 or 16 houses away. Luis cleaned defendant's car on Sunday, October 2, 2011, before the police came to his house.
James Norris, a former employee of the Santa Clara County Crime Lab and a consultant in forensic science, testified as an expert in gunshot residue, firearms, casings, and bullets.
Norris testified that if gunshot residue particles landed on the gloves found in defendant's car, the particles would remain on the gloves until the gloves were "laundered or extensively cleaned" or until the particles were "physically dislodged." The gloves did not appear to have been cleaned. Norris would expect to find a large amount of gunshot residue on the gloves if they were worn by a person who had discharged a .380-caliber semiautomatic weapon eight times, outdoors, and if the gloves were immediately sampled. Some particles would be lost if the person had worn the gloves while dragging a body into a ravine. More particles would be lost when the person took off the gloves.
Considering the small number of gunshot residue particles found on the gloves, Norris believed that they were either not being worn when the gun was fired, or that "some intervening activity" had occurred to clean the gloves. It was also possible the gloves had been contaminated by "secondary transfer" when they were moved from the driver's seat of the car. Norris noted that police officers can have gunshot residue on them and that two different officers had processed defendant's car before it was processed for gunshot residue.
San Jose Police Officer Jaime Jimenez testified that when he interviewed Calderon about the incident that occurred outside her home on the night of October 1, 2011 or the early morning hours of October 2, 2011, Calderon never claimed that she had personally seen defendant with a gun.
M. Convictions and Sentence
A jury convicted defendant of first degree murder (§ 187) and found that he personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (b), (c), & (d)). The trial court sentenced defendant to an indeterminate term of 50 years to life: 25 years to life for the murder, consecutive to 25 years to life for the section 12022.53, subdivision (d) allegation.
III. DISCUSSION
A. Discovery Violations
Defendant contends the prosecution committed numerous discovery violations with respect to Cook, the cell phone expert, and that the trial court erred by finding that no discovery violations occurred and by denying his requests for various discovery sanctions. Defendant contends that if any aspect of his arguments was forfeited due to his trial counsel's omissions, he received ineffective assistance of counsel.
1. Proceedings Below
a. Discovery Motion and Stipulation
Defendant filed a discovery motion on September 8, 2014, in which he requested "Cell Phone Reports by prosecution expert Jim Cook" and "copies of all the materials that their expert witness cell phone expert James Cook, has considered or relied upon in forming his opinion." In a declaration in support of that motion, defendant's trial counsel indicated she had sent an informal discovery request to the prosecution in November 2012 that had asked for "[a]ll photographs . . . of the scene of the alleged offense" and "[a]ll reports of experts made in conjunction with this case."
A hearing on the discovery motion was held on October 7, 2014. On that date, the parties agreed to take the motion off calendar in light of an agreement they had reached. Per that agreement, the prosecution would "provide the report prepared by Jim Cook, when it's completed."
b. Motion in Limine and Follow-Up Discussions
Defendant's motions in limine, filed on January 5, 2015, included a motion to exclude evidence of cell tower " 'ping' evidence." In that motion, defendant's trial counsel indicated she had "not been provided a report from Jim Cook; rather the Prosecution has provided a series of maps without explanation."
On January 6, 2015, defendant's trial counsel informed the trial court that she had received a set of maps associated with Valerie's cell phone and two sets of maps associated with defendant's cell phone. The maps identified defendant's residence, Valerie's residence, and the Metro PCS cell sites and specific sectors that calls to and from defendant and Valerie's phone went through on October 1 and 2, 2011. One of the maps showed that a call made by defendant at 5:45 a.m. on October 2, 2011 went through the southeast sector of a cell site in Fremont.
The prosecutor told the court that the maps constituted "the report that Mr. Cook prepared in this case." He explained that the information on the maps was "derived from cell phone records" that had been provided to the defense. Cook had taken the cell phone records, which contained the time of each call and the specific tower that the call went through, and used those records to produce the maps.
Defendant's trial counsel asked that she be provided with an explanation of what information the prosecution had requested when he spoke with Cook. The prosecutor offered to make Cook available to defendant's trial counsel by way of a conference call. The trial court instructed the prosecutor to set up a conference call and report back.
On January 7, 2015, the trial court confirmed that a conference call had been set up for the following day. The trial court found, "And that's in plenty of time before [Cook] would testify," because his testimony was scheduled for about two weeks later.
On January 12, 2015, the prosecutor told the trial court that Cook and defendant's trial counsel had participated in a conference call the previous week. According to the prosecutor, "it didn't go well" because defendant's trial counsel had been "argumentative" during the call. After the call, Cook had provided the prosecutor with a PowerPoint slide presentation, which the prosecutor had forwarded to defendant's trial counsel.
On January 14, 2015, defendant's trial counsel again noted that she had been provided with several sets of maps prepared by Cook. Defendant argued that it would be beyond Cook's expertise if he was permitted to testify that "a particular phone call that . . . hit off of a tower in the Fremont area was consistent with [defendant] being at the location on Sierra Road."
c. Opening Statements
On January 20, 2015, the parties gave opening statements. The prosecutor described the route defendant had driven after the murder and told the jury that when defendant's cell phone received a call at 5:45 a.m., the call had "ping[ed] off a cell phone tower" that showed he was "up in the hills." The prosecutor told the jury that Cook would testify about defendant's cell phone records and explain how the records showed where defendant's cell phone was being used. The prosecutor further told the jury: "And he will explain to you that he drove the whole route here himself, Mr. Cook did . . . . And because there are portions of the roadway that are elevated, this is the tower that is going to be pinged or used if the defendant is in his vehicle with his phone driving on that roadway."
Following the opening statements, the trial court observed that the defense had been surprised to hear that Cook "drove the cellular route." Defendant's trial counsel confirmed she had not previously known that Cook had driven the route defendant had allegedly taken on the night of the murder. Defendant's trial counsel argued that the prosecutor had violated its discovery obligations and that evidence of Cook's driving the route should be excluded. The prosecutor indicated he did not know when Cook had driven the route, and that he thought he had told defendant's trial counsel that Cook "drove it." Defendant's trial counsel insisted that the information had not previously been disclosed to her.
The trial court ruled that Cook would be permitted to testify about how he had driven the route to ensure that his cell phone pinged off the cell phone towers as indicated by the cell phone records and maps. The trial court indicated that the defense could have someone else drive the route also, in order to dispute the pinging. The trial court offered to give the defense time to have an expert either "see if it pings" or talk to Cook. The trial court also instructed the prosecutor to have Cook "write up something" related to his driving the route.
d. Exclusion and Continuance Motions
The next day, January 21, 2015, defendant again argued that the evidence of Cook having driven the route should be excluded because it was not timely disclosed. Cook had driven the route on January 9, 2015. On January 10, 2015, Cook had taken photos of the site where Valerie's body was found. Defendant's trial counsel had just learned of this recent additional investigation by Cook.
The prosecutor asserted that he had the right to continue to investigate, and he argued that there was no prejudice. Defendant's trial counsel argued that there was prejudice because, by driving the route, Cook had determined that defendant's cell phone would have "pinged off" of a Fremont cell tower due to high elevation.
The trial court found that Cook's determinations were merely confirmatory and that allowing him to testify about his recent additional investigation would not be prejudicial. The court explained, "He was always going to testify that it pinged off that tower and all he did was a ride out to make sure."
Defendant's trial counsel acknowledged she could not specify anything she would have done differently to prepare for trial had she known earlier about Cook's recent additional investigation. However, she had anticipated that Cook would testify that defendant had made a call from Fremont; she asserted his proposed testimony constituted "brand new information" with respect to the high elevation causing a call to "ping" off a Fremont cell tower.
The trial court acknowledged that based on Cook's recent additional investigation, the prosecution was modifying its theory "a little bit," in that previously the prosecution had been proceeding on the assumption that defendant had driven through Fremont after the murder. However, the trial court found that the difference of a few miles was insignificant and that "the evidence doesn't change anything." The trial court denied defendant's request for a continuance and reiterated it would not exclude the challenged testimony. The trial court indicated it would reconsider granting a continuance if the defense could specify "a way to rebut" Cook's testimony.
On January 27, 2015, defendant's trial counsel again indicated she wanted a continuance. She reiterated that she had never received a report from Cook, and she asserted that the original set of maps provided by Cook did not "in any way, shape, or form, resemble" the maps he was going to be showing to the jury in his PowerPoint presentation. In particular, the PowerPoint presentation now contained defendant's text messages. Defendant's trial counsel also complained that the original discovery did not include Cook's opinion that the call that went through the Fremont cell tower actually "came from the area where Valerie was killed."
Later that day, defendant's trial counsel reiterated her objection to Cook's PowerPoint presentation on the basis of late discovery. The trial court proposed that Cook's cross-examination be delayed until the following day to give the defense additional time to prepare.
e. Cook's testimony
Cook's direct examination and cross-examination took place on January 28, 2015. Cook testified that the prosecutor had contacted him about the case in November 2013 and provided him with cell phone records and an oral "synopsis of the case" in December 2013. In April 2014, he took photographs of San Jose area cell sites and kept them for his records. He took additional photographs of San Jose area cell sites in November 2014. He did not drive to the location where Valerie's body was found until January 9, 2015. He returned to the site the following day after being provided with photographs showing the specific location.
Cook had not prepared a report for this case because, like many of his clients, the prosecutor had indicated he would prefer a PowerPoint presentation and no report. Cook had made notes in connection with the work he had done on this case, but he had not brought the notes with him to court. For instance, he had taken notes when the prosecutor provided him with a synopsis of the case.
Cook acknowledged that the photographs he took in April 2014 were not provided to the defense until January 20, 2015.
2. Legal Principles
The prosecutor is required to disclose to the defense specified "materials and information" that are in his or her possession or known to be "in the possession of the investigating agencies." (§ 1054.1.) This requirement includes "[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial." (Id., subd. (f).)
The disclosure requirement of section 1054.1, like the related disclosure requirement applicable to the defense under section 1054.3, does not apply only to written reports and statements; the disclosure requirement also "applies to relevant oral statements of witnesses communicated orally . . . by third parties, such as an investigator. [Citation.]" (Roland v. Superior Court (2004) 124 Cal.App.4th 154, 163; see People v. Poletti (2015) 240 Cal.App.4th 1191, 1210, fn. 7.)
The prosecutor's disclosures are required to be made "at least 30 days prior to the trial, unless good cause is shown . . . ." (§ 1054.7.) "If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown . . . ." (Ibid.)
The trial court may "make any order necessary to enforce" a party's statutory discovery obligations, as long as the other party has complied with its own discovery obligations. (§ 1054.5, subd. (b).) The allowable sanctions for discovery violations include "immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter," advising the jury of the discovery violation (ibid.), and—"if all other sanctions have been exhausted"—prohibiting the testimony of a witness. (§ 1054.5, subd. (c).)
" 'We generally review a trial court's ruling on matters regarding discovery under an abuse of discretion standard.' [Citations.]" (People v. Thompson (2016) 1 Cal.5th 1043, 1105 (Thompson).)
" 'It is defendant's burden to show that the failure to timely comply with any discovery order is prejudicial . . . .' [Citations.]" (Thompson, supra, 1 Cal.5th at p. 1103.) To show prejudice, a defendant must explain "how earlier disclosure of [the] testimony would have made any difference to [the] defense strategy." (Ibid.; see People v. Verdugo (2010) 50 Cal.4th 263, 283 (Verdugo) [no prejudice shown where defendant did not "state specifically what counsel would have done differently" if a particular statement "had been disclosed sooner"].) "A violation of section 1054.1 is subject to the harmless-error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. [Citation.]" (Verdugo, supra, at p. 280.)
3. Alleged Discovery Violations
a. Failure to Explain Maps
Defendant first asserts that the prosecution violated its discovery obligations by providing Cook's initial set of maps without any explanation or notes. Defendant contends that Cook likely gave the prosecutor an oral explanation of the initial set of maps and that the prosecutor likely made written notes of that oral explanation. He argues that the prosecutor was required to timely disclose Cook's oral explanation of the maps and timely disclose the prosecutor's own written notes. Defendant speculates that a timely explanation of the maps would have allowed his trial counsel to make a better objection to the foundation for Cook's testimony.
The Attorney General notes that by January 14, 2015 (two weeks before Cook's trial testimony), defendant's trial counsel had received a revised set of maps and a copy of Cook's proposed PowerPoint presentation, and she had been informed that Cook's testimony would include an opinion that the cell site data was consistent with defendant's presence at the site where Valerie's body was found. The Attorney General argues that defendant's trial counsel abandoned her original objection to the lack of explanation for the maps by indicating that she understood how Cook would use the maps. The Attorney General also contends that defendant has failed to show any prejudice because he has not explained what he would have done differently and because he had ample time to prepare for Cook's cross-examination about the maps. Additionally, the Attorney General points out that the prosecutor did arrange for a conference call between defendant's trial counsel and Cook, which gave defendant an opportunity to obtain an explanation of the maps.
Even if we assume that Cook gave the prosecutor an oral explanation of the maps and that defendant's trial counsel did not abandon her objection to the prosecutor's failure to timely disclose that oral explanation, defendant has not shown prejudice. (See Thompson, supra, 1 Cal.5th at p. 1103.) As noted above, to show prejudice, a defendant must explain "how earlier disclosure . . . would have made any difference to [the] defense strategy." (Ibid.) Here, defendant has not explained how he could have made a stronger objection based on a lack of foundation had the prosecutor provided his trial counsel with an earlier explanation of Cook's maps. Thus, defendant has failed to show a prejudicial discovery violation.
b. Failure to Provide Notes of July 9 and 10 , 2015 Investigation
Defendant next argues that the prosecution violated its discovery obligations by failing to provide Cook's notes of "what he observed and photographed" when he drove the route and went to the site where Valerie's body was found. Defendant asserts that Cook must have taken notes because, as an expert, he would have wanted to record his observations during his investigation. Defendant argues that if his trial counsel had been provided with Cook's notes "immediately" (§ 1054.7), she would have had sufficient time to prepare for her cross-examination of Cook and would have had adequate information with which to consult with and secure her own expert.
The Attorney General argues that any notes Cook took were not required to be disclosed, pointing out that the statutory discovery obligations do not apply to "random notes in the expert's file, . . . preliminary drafts of the expert report, the expert's notes to himself, interim conclusions, or subsidiary reports on which the expert may rely. [Citation.]" (Woods v. Superior Court (1994) 25 Cal.App.4th 178, 183.) The Attorney General further argues that defendant has failed to show prejudice from the lack of such discovery.
Even if we assume that Cook took notes during his January 9 and 10, 2015 investigation, defendant has not shown that those notes would have fallen within the discovery statute. Defendant had an opportunity to cross-examine Cook about his January 9 and 10 investigation, and nothing in that testimony indicated that Cook did anything other than confirm the calculations he had previously performed based on the cell site data. On this record, defendant's claim also fails because he has not explained how disclosure of any notes Cook during that investigation "would have made any difference to [the] defense strategy." (Thompson, supra, 1 Cal.5th at p. 1103.)
c. Failure to Immediately Provide January 2015 Photos
Defendant contends the prosecution violated its discovery obligations by failing to immediately provide the defense with the site photographs Cook had taken on January 10, 2015. Defendant points out that he did not learn about the existence of the photographs until after the prosecutor's opening statement on January 20, 2015, and that under section 1054.7, the prosecutor was required to disclose those photographs "immediately." However, defendant has not explained how disclosure of the photographs "would have made any difference to [the] defense strategy." (Thompson, supra, 1 Cal.5th at p. 1103.) Thus, he has not shown a prejudicial discovery violation.
d. Failure to Timely Provide April and November 2014 Photos
Defendant notes that Cook took photographs in April 2014 and November 2014, but that those photographs were not provided to the defense prior to 30 days before trial as required by section 1054.7. Defendant describes these photographs as "less important" than those taken in January 2015 but asserts that if they had been timely disclosed, his trial counsel "would have at least known that Mr. Cook was doing something investigative beyond making maps, which would have assisted her in litigating issues of other discovery violations."
In terms of prejudice, defendant asserts that timely disclosure of the April 2014 and November 2014 photographs would have alerted his trial counsel to the fact that Cook "was doing something investigative beyond making maps," and that information would have helped her litigate other discovery claims. However, defendant has not "state[d] specifically what counsel would have done differently" if the April 2014 and November 2014 photographs "had been disclosed sooner" (Verdugo, supra, 50 Cal.4th at p. 283), and thus he has not shown a prejudicial discovery violation.
e. Failure to Provide Statements
In an argument similar to his claim regarding the prosecution's failure to disclose Cook's explanations of the maps, defendant contends the prosecution violated its discovery obligations by not disclosing Cook's oral reports about his investigation. Defendant contends that the maps alone did not provide his trial counsel with advance notice that Cook's testimony would include his conclusions about the route defendant drove or the site of Valerie's body.
We do not agree with defendant's claim that his trial counsel could not have "guessed at Mr. Cook's eventual testimony" from the original maps he provided. The maps, which contained cell site data associated with defendant's cell phone around the time of Valerie's disappearance, obviously were intended to show that defendant had been driving to and from the site where Valerie's body was found soon after Valerie was last seen getting into defendant's car. Moreover, defendant has not "state[d] specifically what counsel would have done differently" if Cook's conclusions "had been disclosed sooner" (Verdugo, supra, 50 Cal.4th at p. 283), and thus he has failed to show a prejudicial discovery violation.
f. Request for No Report
Defendant argues that the prosecutor violated the discovery laws by requesting that Cook not write a report. He characterizes the prosecutor's request as "improper 'gamesmanship' and 'sandbagging' " that circumvented the discovery requirements.
In his reply brief, defendant acknowledges that "[a] request that an expert not write a formal report is not by itself a discovery law violation."
Defendant relies primarily on out-of-state cases. The first case considered a New York discovery statute that required disclosure of reports prepared by examining physicians in cases where the physical or mental condition of a party was at issue. (Pierson v. Yourish (N.Y. App. Div. 1986) 122 A.D.2d 202 (Pierson).) The court in that case rejected the plaintiffs' claim that the statute did not apply to one of the physician's examinations simply because no written report had been prepared: "The plaintiffs cannot 'frustrate disclosure by the simple expedient of asking the physician either to delay or not to render a written report' and thus negate the purpose and intent of the statutes governing discovery [citation]." (Pierson, supra, at p. 203.) The second case was a federal patent infringement case in which the plaintiff's attorney instructed his client not to document any tests, specifically "to foreclose the possibility that the tests might become known to defendants," in violation of "earlier orders requiring production of test results." (Loctite Corp. v. Fel-Pro, Inc. (N.D. Ill. 1980) 94 F.R.D. 1, 6.) The third case was an appeal from a contempt sanction imposed by a federal district court after an attorney admitted he had instructed a psychiatrist "to write no report" specifically for the purpose of avoiding reciprocal discovery. (In re Serra (9th Cir. 1973) 484 F.2d 947.)
In this case, Cook testified that many of his clients prefer a PowerPoint presentation instead of a written report. The prosecution timely disclosed Cook to the defense, timely provided the defense with maps Cook had prepared based on cell phone records that the defense had also been provided with, and explained that those maps constituted Cook's report. When defendant's trial counsel asked for a further explanation of Cook's work, the prosecutor set up a conference call between Cook and defendant's trial counsel. The prosecutor also provided the defense with the PowerPoint presentation that Cook ultimately showed the jury soon after Cook prepared it. Thus, unlike in the cases defendant relies on, the record in this case does not show that the prosecution purposely attempted to avoid its discovery obligations or foreclose the defense from learning of Cook's work on the case by asking that Cook prepare a PowerPoint presentation rather than a report.
Defendant has not identified any significant differences between the maps and the PowerPoint presentation other than the fact that only the PowerPoint presentation contained text messages, nor has he explained how any differences were prejudicial. We have reviewed both the original set of maps and the PowerPoint presentation. The main differences we note are: (1) the maps were in black and white while the PowerPoint presentation was in color; (2) the PowerPoint presentation includes some "Google earth" maps; (3) the PowerPoint presentation includes some photographs of the crime scene, the Waverly Drive residence, and the Orlando Drive residence; (4) the PowerPoint presentation contains a slide that provides the definitions of certain notations on the maps; (5) the PowerPoint presentation includes a chart of outgoing and incoming calls to and from defendant's cell phone; (6) some of the maps on the PowerPoint presentation specify the "Body Location"; and (7) the PowerPoint presentation includes some visual explanations of how cell phones and cell sites work. --------
Moreover, case law supports the Attorney General's argument that the prosecutor was not required to have Cook prepare a formal written report. For instance, the California Supreme Court has held that while the discovery statutes generally require disclosure of the names and addresses of witnesses that the prosecution and defense intend to call at trial, if that information is "known or is reasonably accessible," a party does not have "a duty to obtain a written statement from a witness." (In re Littlefield (1993) 5 Cal.4th 122, 136.) The California Supreme Court has also held that an expert's work product can constitute a report for purposes of the discovery statutes. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1233, abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
In sum, we conclude the prosecutor did not violate the discovery laws by requesting that Cook not write a report.
g. Delay in Providing Cook With Information
Defendant notes that Cook's initial work on this case did not include him traveling the route or visiting the site where Valerie's body was found. Noting that the prosecutor gave Cook "additional information" regarding "the body dump location" on January 9, 2015, defendant speculates that the prosecutor purposely delayed giving Cook information about the route or site.
Defendant did not raise this argument below, and thus the record sheds no light on whether or not the prosecutor told Cook the location of the body prior to January 9, 2015. To the extent defendant contends his trial counsel was ineffective for failing to raise this argument at trial, he cannot establish prejudice because the record does not show whether the prosecutor actually withheld any information from Cook. (See Strickland v. Washington (1984) 466 U.S. 668, 693 [ineffective assistance claims require "that the defendant affirmatively prove prejudice"].) Thus, defendant fails to show the prosecutor committed a discovery violation in this regard.
h. Cumulative Discovery Violations
Defendant appears to further challenge the prosecutor's "course of conduct" with respect to timely discovery disclosures. However, we have found no individual prejudicial discovery violations, and we also find no cumulative prejudicial discovery violations. (See Verdugo, supra, 50 Cal.4th at pp. 289-290 [rejecting cumulative prejudice claim where "the individual discovery violations were harmless or . . . any harm could have been fully cured by the remedy the trial court offered"]; cf. People v. Hill (1998) 17 Cal.4th 800, 844 ["a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error"].) Nor do we find that the alleged discovery violations constituted a violation of defendant's Sixth and Fourteenth Amendment rights, as the alleged discovery violations did not render defendant's trial fundamentally unfair. (See People v. Ochoa (1998) 19 Cal.4th 353, 474.)
i. Remedies
Defendant contends the trial court erred by failing to grant him any remedies for the alleged discovery violations. Because we have found no prejudicial discovery violations, we need not address this argument.
B. Third Party Culpability Evidence
Defendant contends the trial court erred by precluding him from introducing evidence of third party culpability. He contends the error was "of constitutional dimensions."
1. Proceedings Below
Defendant moved in limine to introduce third party culpability evidence, while the prosecution moved in limine to exclude third party culpability evidence. The prosecution indicated that the third party culpability evidence would involve Valerie's sexual history, specifically with a man named Joaquin Fernandez. Defendant indicated that Valerie also had a relationship with a man named Johnny Arce.
During a hearing on January 7, 2015, defendant's trial counsel noted that the autopsy had revealed "an abundance of creamy white fluid" in Valerie's vagina. Defendant was not a match to the DNA in that fluid; a CODIS hit had identified Fernandez as a match for the DNA. Defendant's trial counsel acknowledged, however, that there was no evidence of "animosity or argument" between Valerie and Fernandez.
The prosecutor argued that the evidence was irrelevant and prejudicial, and that it should be excluded pursuant to Evidence Code section 352. The prosecutor noted that there was evidence of an "altercation" between Fernandez and defendant, and evidence that Fernandez and Valerie had exchanged text messages, but he argued that none of that evidence linked Fernandez to murdering Valerie.
The trial court denied the defense motion to introduce third party culpability evidence, finding that defendant had not shown "possibly some motive of a third-party." Even though there was evidence that Fernandez had a sexual relationship with Valerie, there was "no evidence of any animosity" towards her. The trial court found that the evidence that Fernandez's semen was found in Valerie's vagina was irrelevant and more prejudicial than probative, and that it would confuse the jury.
Prior to opening statements, defendant's trial counsel asked if she could tell the jury about the "abundant creamy fluid" and the fact that defendant's DNA had not been found in that fluid. Defendant's trial counsel explained that photographs of Valerie's body indicated possible sexual activity had occurred before her death: her sweatshirt and tank top had been pulled up and over her breasts, and her bottoms had been pulled down.
The prosecutor noted that Valerie's body had been found down a ravine and asserted that the process of her being "tumbled down there" and the removal of her body from the ravine would have distorted her clothing. The prosecutor also noted that Valerie's clothing appeared differently in different photographs.
The trial court indicated it would reconsider its ruling on third party culpability evidence but instructed the defense not to mention that evidence during opening statements.
Later in the trial, the parties discussed Fernandez, who was expected to be called as a prosecution witness. The prosecutor noted that Fernandez said he had sexual relations with Valerie on September 30, 2011.
Still later in the trial, the parties discussed the scope of testimony from the coroner. Defendant's trial counsel again argued that the evidence of semen found in Veronica's body and the state of Veronica's clothing indicated that there had been sexual activity close in time to her death.
The trial court ruled that there would be no mention of the semen. The trial court found that the evidence was not relevant, that none of the evidence showed a sexual assault had occurred, and that the jury might conclude it was defendant's semen or that Veronica was promiscuous. The trial court also did not want the jury to be given the impression that the semen belonged to a third party, since there was no evidence of a third party's motive to kill Veronica.
2. Analysis
"[T]hird party culpability evidence is admissible if it is 'capable of raising a reasonable doubt of [the] defendant's guilt.' " (People v. Robinson (2005) 37 Cal.4th 592, 625 (Robinson).) This standard does "not require that any evidence, however remote, must be admitted to show a third party's possible culpability." (People v. Hall (1986) 41 Cal.3d 826, 833 (Hall), italics added.) "[E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Ibid.)
"In assessing an offer of proof relating to such evidence, the [trial] court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352." (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) On appeal, we review the trial court's evidentiary rulings—including a ruling excluding third party culpability evidence—for abuse of discretion. (People v. Clark (2016) 63 Cal.4th 522, 597.)
Defendant asserts that a third party culpability defense was supported by (1) a photograph showing that Valerie's clothing had been moved in a "sexually based" manner, which could not have occurred from her body being pushed down a ravine, and which suggested a "sexually-based motive" for the murder; (2) the evidence that there was an "abundance" of semen in Valerie's vagina, which supported a finding that Valerie had sexual intercourse with someone after she left with defendant in the early morning hours of October 2, 2011; (3) the evidence that DNA from the semen matched Fernandez. Defendant contends he did not need to produce evidence that Fernandez had a motive to kill Valerie and that evidence of the semen alone was enough to raise a reasonable doubt as to his guilt. Defendant argues that no reasonable juror would have found that the semen showed Valerie's promiscuity, and that the trial court could have given a limiting instruction so as to minimize any such inference.
Defendant relies on a Ninth Circuit case, U.S. v. Vallejo (9th Cir. 2001) 237 F.3d 1008 (Vallejo) for the assertion that the third party culpability evidence was relevant, even if the defense theory was speculative. In Vallejo, the defendant was charged with importing marijuana from Mexico. The marijuana had been found in his car after he was stopped at the border. (Id. at p. 1013.) At trial, the defendant claimed he had no knowledge that the marijuana was in the car and that his intent was to sell the car itself. He attempted to introduce evidence that a third party named Jaramillo had previously owned that car and had recently been arrested after being found with marijuana similarly hidden in a car at the same entry point. The defendant argued that this evidence supported his no-knowledge defense because it suggested that Jaramillo had "gotten this car ready to go" but then sold it after his arrest. (Id. at p. 1022.) The Ninth Circuit held that the evidence should have been admitted because "the similarity of circumstances surrounding Jaramillo's arrest provides an alternative theory of how the drugs were secreted in Vallejo's car without his knowledge." (Id. at p. 1023.) The Ninth Circuit characterized the evidence as having "unique relevance to the central defense theory." (Ibid.) In dicta, the court commented that the evidence would have been relevant even if the defense theory was "purely speculative," because it was the jury's role to assess whether the evidence presented a legitimate alternative theory of the crime. (Ibid.)
Unlike Vallejo, in the instant case, there are not significant similarities between the offered third party evidence and the charged offense. Moreover, to the extent Vallejo may be read as indicating that even speculative evidence should be admitted to show third party culpability, that is not the rule in California: the California Supreme Court has upheld the exclusion of third party culpability evidence when it is "too speculative to be relevant." (People v. Lewis (2001) 26 Cal.4th 334, 373; see also People v. Lucas (2014) 60 Cal.4th 153, 280, disapproved of on other grounds by People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19; People v. Gonzales (2012) 54 Cal.4th 1234, 1261.)
We have reviewed the photograph of Valerie's body and find the trial court did not abuse its discretion by determining that the photograph did not show that Valerie had been sexually assaulted just before her murder. The photograph, which was taken after Valerie's body had been moved from its original position, shows one of Valerie's breasts exposed, with her bra pulled down below the breast, and it shows her sweatpants are pulled slightly down to her hips, a few inches below her waist. Particularly in light of the fact that Valerie's body had been moved prior to the time the photograph was taken, the trial court could reasonably determine that the state of her clothing does not show that the clothing had been positioned in a "sexually based" manner.
We have also considered the offer of proof regarding the semen made by defendant's trial counsel and find the trial court did not abuse its discretion by finding it would be speculative to conclude that the semen was deposited after Valerie's disappearance, as defendant did not support his claim with any scientific evidence regarding the amount of time that semen could have stayed in Valerie's vagina.
Further, the trial court reasonably found that the third party culpability evidence posed a danger of leading to a jury conclusion about Valerie's promiscuity: "For some jurors, the fact that the victim has engaged in sexual conduct outside of marriage automatically suggests a receptivity to the activity or is proof that the victim got what she deserved—neither of which is a rational or permissible inference. [Citation.]" (People v. Fontana (2010) 49 Cal.4th 351, 370.) We also note that admission of the proposed third party culpability evidence posed the potential of requiring a mini-trial on the question of Fernandez's whereabouts on the night of the murder, thus creating the possibility "of confusing the issues, or of misleading the jury." (Evid. Code, § 352; see People v. Geier (2007) 41 Cal.4th 555, 582, overruled on another point by Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.)
In sum, the trial court did not abuse its discretion by determining that defendant's proffered third party culpability evidence was not " 'capable of raising a reasonable doubt of [the] defendant's guilt.' " (Robinson, supra, 37 Cal.4th at p. 625.) Defendant's offer of proof contained no evidence that Fernandez or another third party had a motive to kill Valerie or an opportunity to kill Valerie, and no other "direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Hall, supra, 41 Cal.3d at p. 833.) The trial court also did not abuse its discretion by excluding the proffered evidence pursuant to Evidence Code section 352.
C. Limited Remand - Section 3051
Defendant, who was age 23 years 5 months at the time of the murder, seeks a limited remand for the purpose of making a record of factors relevant to his eventual "youth offender" parole suitability under section 3051.
Section 3051, enacted in 2013 (Stats. 2013, ch. 312, § 4), requires the Board of Parole Hearings (the Board) to conduct youth offender parole hearings for eligible offenders, and makes such offenders eligible for release on parole by at least the 25th year of incarceration. (§ 3051, subds. (a)(1), (b)(3).) The statute specifies that the Board is to assess a youthful offender's "growth and maturity" in determining whether or not to grant parole. (Id., subd. (f)(1).)
Initially, section 3051 applied to offenders who were under 18 years of age at the time of their controlling offense, which was defined as "the offense or enhancement for which any sentencing court imposed the longest term of imprisonment." (Former § 3051, subd. (a)(2)(B); see Stats. 2013, ch. 312, § 4.) In 2015, the Legislature amended section 3051 to extend its application to offenders who were under 23 years of age at the time of their controlling offense (Stats. 2015, ch. 471, § 1), and recently, the Legislature amended the statute so that it applies to offenders who were under 25 years of age at the time of their controlling offense (Stats. 2017, ch. 675, § 1).
Defendant was sentenced on March 6, 2015, before the most recent amendment to section 3051. Defendant's longest term of imprisonment—an indeterminate term of 25 years to life—was imposed for the murder and for the section 12022.53, subdivision (d) enhancement; therefore, pursuant to section 3051, subdivision (b)(3), he will be eligible for release on parole during his 25th year of incarceration.
Defendant contends that, at the time of his sentencing hearing, he "could not have contemplated the need to produce evidence which may have been relevant at a future youth offender parole hearing," since "no such hearing was available at that time." He therefore requests we remand this matter to give him an opportunity to make such a record.
The California Supreme Court ordered a limited remand in People v. Franklin (2016) 63 Cal.4th 261 (Franklin). In Franklin, the court explained that the new statutory parole scheme for youthful offenders "contemplate[s] 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 Board's consideration." (Id. at p. 283.) The court noted that 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' " and that "[a]ssembling such statements . . . 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." (Franklin, supra, at pp. 283-284.) The court found it was "not clear whether Franklin 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." (Id. at p. 284.) Thus, the court remanded the matter to the trial court "for a determination of whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Ibid.) The Franklin court specified that if the trial court later determined "that Franklin 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." (Ibid.)
A number of cases have followed Franklin in concluding that a limited remand was appropriate for a youthful offender whose sentencing hearing predated the enactment of section 3051 or the 2015 amendment. (E.g., People v. Garrett (2017) 7 Cal.App.5th 871, 884-885; People v. Scott (2016) 3 Cal.App.5th 1265, 1283; People v. Perez (2016) 3 Cal.App.5th 612, 619.)
The Attorney General agrees that a limited remand is appropriate in this case. Thus, we will order a limited remand in order for the trial court to determine whether defendant had an adequate opportunity to make an accurate record of his circumstances and characteristics at the time of his offense, in anticipation of a future youth offender parole hearing.
D. Amendment to Section 12022 .53
At the time of sentencing in this case, section 12022.53 contained a provision prohibiting a trial court from striking "an allegation under this section or a finding bringing a person within the provisions of this section." (Former § 12022.53, subd. (h); see Stats. 2010, ch. 711, § 5.) However, section 12022.53 was amended effective January 1, 2018. Section 12022.53, subdivision (h) now provides: "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." (Stats. 2017, ch. 682, § 2.)
Defendant is entitled to the benefit of the amended version of section 12022.53 under the retroactivity principles of In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Francis (1969) 71 Cal.2d 66 (Francis).
Estrada set forth an exception to the general rule that changes in the law apply prospectively: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Estrada, supra, 63 Cal.2d at p. 745.) Francis determined that the same exception applied when a statutory amendment gave the trial court discretion to impose a lower sentence. In that case, the defendant was convicted of committing a felony drug offense. While his case was pending on appeal, the statute was amended to change the drug offense from a straight felony to a wobbler that could be charged as a felony or a misdemeanor. The Francis court determined that the amendment was retroactive under the principles of Estrada. (Francis, supra, 71 Cal.2d at pp. 75-78.) The court reasoned that while the amendment did not guarantee Francis a lower sentence, making the crime punishable as a misdemeanor showed a legislative intent that punishing the offense as a felony might be too severe in certain cases. (Id. at p. 76.)
Under the principles of Estrada and Francis, the amended version of section 12022.53 applies to this case. Thus, upon remand, the trial court should consider whether to exercise its discretion to strike the section 12022.53, subdivision (d) enhancement allegation pursuant to section 1385.
IV. DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court for the limited purposes of (1) determining whether defendant was afforded an adequate opportunity to make a record of information that will be relevant to the Board of Parole Hearings in a future parole eligibility hearing held pursuant to Penal Code section 3051, and, if not, to allow defendant and the People an adequate opportunity to make such a record, and (2) considering whether to exercise its discretion to strike the Penal Code section 12022.53, subdivision (d) enhancement pursuant to Penal Code section 1385.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.