Opinion
C077755
02-24-2017
THE PEOPLE, Plaintiff and Respondent, v. MARQUEL DIXON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10F00253)
Defendant Marquel Dixon, who was 17 years old at the time he committed felony murder or aided and abetted the murder and other crimes, 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. This issue has been rendered moot. (Pen. Code § 3051; People v. Franklin (2016) 63 Cal.4th 261 (Franklin).) The Attorney General agrees with defendant that in light of Franklin, we must remand the case to allow defendant 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.
Undesignated statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
In defendant's prior appeal, we affirmed a jury verdict for special circumstance murder and attempted robbery and sustained the jury findings of various enhancements but remanded the case for resentencing because the court in sentencing defendant to life without the possibility of parole had failed to exercise its discretion pursuant to section 190.5, subdivision (b), and had failed to take into account how children are different as compelled by the United States Supreme Court in Miller v. Alabama (2012) 567 U.S. ___ [183 L.Ed.2d 407, 429-430.] (Miller) (People v. Dixon (Dec. 10, 2013, C068544) [nonpub. opn.].) On remand, the trial court resentenced defendant to an aggregate indeterminate term of 50 years to life, based on a term of 25 years to life for first degree murder plus another term of 25 years to life on the corresponding firearm enhancement. Defendant appeals the new sentence.
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 life without the possibility of parole, in violation of Miller, supra, 567 U.S. ___ . (People v. Cornejo (2016) 3 Cal.App.5th 36, 66.) 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.)
During Dixon's initial sentencing on June 17, 2011, the trial court erroneously assumed it had no discretion other than to impose a mandatory sentence of life without the possibility of parole. (People v. Dixon, supra, C068544.) At the October 31, 2014, resentencing hearing, both parties submitted the matter without any comment on the record, and the court exercised its discretion by reducing Dixon's sentence to two consecutive terms of 25 years to life, also without making any comment. Thus, it appears, and the Attorney General agrees, that Dixon was not afforded a "sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284)
DISPOSITION
We will, therefore, follow Franklin's admonition to remand the matter to enable the trial court to determine whether, in fact, defendant was afforded a sufficient opportunity to make a record, and if not, to allow him to "place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.)
RAYE, P. J. We concur: NICHOLSON, J. HULL, J.