Opinion
B303419
05-27-2021
THE PEOPLE, Plaintiff and Respondent, v. DUMAR CARDIN FISHER, Defendant and Appellant.
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. BA191112 APPEAL from an order of the Superior Court of Los Angeles County, Mildred Escobedo, Judge. Affirmed. Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2000, a jury convicted defendant and appellant Dumar Cardin Fisher of attempted robbery and robbery. The jury found true allegations that, in the commission of the attempted robbery, Fisher discharged a firearm causing great bodily injury to the victim, and that he committed both crimes for a gang. The trial court sentenced Fisher to 32 years and eight months to life in the state prison.
In November 2018, Fisher filed a petition for a writ of habeas corpus that was essentially a request for a Franklin hearing. About 10 months later, Fisher filed a motion to strike his firearm enhancement under Senate Bill No. 620 (Senate Bill 620). The court conducted the Franklin hearing in October 2019. In an October 22, 2019 order, the court denied Fisher's motion to strike his gun enhancement.
People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
On appeal, Fisher contends (1) the court denied him "a meaningful opportunity to make a record of youth-related mitigating factors" at the Franklin hearing, and (2) Senate Bill 620 should apply retroactively to cases that were final when that legislation took effect. We disagree, and affirm.
FACTS AND PROCEDURAL BACKGROUND
1. Fisher's conviction and sentence
In December 1999, the People charged Fisher with attempted murder, attempted robbery (of Eric Beverett), and robbery (of Joshua Epps). As to the attempted robbery, the People alleged Fisher had personally and intentionally discharged a firearm causing great bodily injury to Beverett under Penal Code section 12022.53, subdivision (d) and had personally inflicted great bodily injury on him. The People also alleged Fisher had committed the crimes for the benefit of a criminal street gang. At the conclusion of a trial in December 2000, the jury convicted Fisher of the attempted robbery and robbery, and found the allegations true. The jury was unable to reach a verdict on the attempted murder count.
References to statutes are to the Penal Code.
In January 2001, the trial court sentenced Fisher to 32 years and eight months to life in the state prison. On the attempted robbery count, the court imposed the upper term of three years, plus the upper term of three years for the gang enhancement, and an indeterminate term of 25 years to life for the firearm. On the robbery count, the court imposed one-third the midterms for the charge and for the gang enhancement (one year plus eight months), to run consecutively. In October 2001 we affirmed Fisher's conviction. (People v. Fisher (Oct. 25, 2001, B147724) [nonpub. opn.].) 2. Fisher's request for a Franklin hearing , his motion to "modify" his sentence , and the pre-hearing proceedings
On November 29, 2018, Fisher filed a petition for a writ of habeas corpus on the Judicial Council form. Fisher did not sign or otherwise verify the petition. Although on a writ petition form, the pleading was essentially a request for a Franklin hearing. Citing Franklin, Fisher wrote, "The trial court failed to afford defendant with sufficient opportunity at sentencing to make a record of mitigating evidence such as culpability, cognitive maturity, character and social or family background tied to his youth at the time of the offense." In a four-page, handwritten attachment, Fisher wrote of his mother's drug addiction, his father's alcoholism, the "trauma that [he] experienced in [his] life [that] left [him] mentally and emotionally wounded," and his willingness to "take full responsibility for [his] role in the crime despite the fact that it was committed out of youthful ignorance."
Fisher was born on January 12, 1980. He committed his crimes on August 12, 1999, so he was 19 at the time.
On December 21, 2018, the trial court (Judge Mildred Escobedo) issued an order to show cause, citing Franklin and section 3051. The court set the matter for January 24, 2019. A January 15, 2019 minute order refers to Fisher's "written request for appointment of counsel and declaration of indigency." The court apparently appointed counsel for Fisher from the bar panel on January 18, 2019.
Section 3051 authorizes a youth offender parole hearing during the 15th, 20th, or 25th year of a juvenile offender's incarceration for offenders who were 25 years old or younger when they committed their offense. (§ 3051, subds. (a)(1), (b)(1)-(3).)
The record on appeal does not include a copy of that document.
On January 23, 2019, the district attorney filed a "Concession Regarding Petitioner's Rights Pursuant to Franklin." The prosecution noted Fisher was "entitled to make a record, via a Franklin hearing, of factors to be considered at a parole hearing."
Fisher appeared in court on January 24, 2019 with appointed counsel, Steven C. Flanagan. Judge Escobedo apparently was not available and Judge Laura F. Priver called the case. Flanagan told the court he "need[ed] to look at the documents" and "perhaps have an investigator appointed." Judge Priver noted "the court is putting together a set of experts to deal with the mitigation or the social issues for Franklin hearings because this is becoming more common." Flanagan said, "[W]e need to get his C file to see how well he's been doing in state prison." Judge Priver set the case for March 14, 2019, "for further proceedings regarding Franklin hearing setting."
As defense counsel later explained to the court, the "C file" consists of the state prison's records of "everything that [the inmate] has done" "while he's in state prison"—"any infraction that he has, where he's been housed, et cetera." The prosecutor told the court the C file "would show . . . whether or not [the inmate's] be[en] in compliance with the rules within the prison. His rehabilitation and his steps taken toward that direction . . . ." The prosecutor had issued a subpoena duces tecum to prison authorities to deliver the records directly to the court.
Counsel appeared before Judge Escobedo on March 14, 2019. Judge Escobedo was under the impression that date was for the hearing itself. The prosecutor and Flanagan both advised the court that Judge Priver had calendared the case for a setting, not the hearing. The prosecutor told the court she had "just received the case" and had "not gone through the package." Flanagan said he had been diligently checking the list of experts Judge Priver had mentioned, and there was only one person listed, someone in San Francisco.
The court expressed concern that Flanagan had just requested the appointment of an investigator and asked why an investigator was necessary, noting the Franklin hearing would "not [be] a retrial of the case." Flanagan explained the investigator would interview witnesses who could testify to Fisher's "character, what was going on in his mind, including subpoena[ing] high school records, if they exist, any school records." The court continued the matter to June 27, 2019, and told counsel to "[g]ather whatever you need" and "[g]et ready."
According to the docket, on June 25, 2019, Flanagan filed a motion to continue the Franklin hearing. On June 27, 2019, the court granted the motion and continued the matter to September 27, 2019. The record on appeal does not contain Flanagan's motion or a reporter's transcript of the proceedings on June 27.
In the meantime, on September 16, 2019, Fisher—in propria persona—filed an untitled pleading asking the court to "modify" his sentence "by striking or simply dismissing the 12022.53(d) enhancement" under Senate Bill 620.
On September 25, 2019, Flanagan filed another motion to continue the Franklin hearing. Flanagan said his investigator had interviewed five witnesses who knew Fisher when he was a teenager. Fisher's uncle was "going to ask" parishioners at the church Fisher had attended whether anyone had known him. Flanagan stated his investigator had not "ha[d] the time within the past ninety days" to interview Fisher, "as he was on vacation and was/is going through a messy divorce proceeding." Flanagan asserted his investigator "need[ed] additional time to speak to potential witnesses (church, defendant, percipient witnesses) and to confirm the allegations raised in the various interviews."
Flanagan also noted Fisher had filed a motion under Senate Bill 620, acknowledging, however, that the legislation was "only retroactive if the case is still active on appeal."
Across the front of the motion to continue, the court wrote, "Denied 9-25-19 be present 830 am ready to go." However, when counsel appeared on September 27, 2019, the court relented. Judge Escobedo expressed concern about the continuances, noting the court had received Fisher's writ petition in November 2018. The court told Flanagan he "could have the parents here, could have the siblings here," as well as "community members."
The court nevertheless granted the defense continuance. The prosecutor told the court she had taken the C file—sent from Corcoran state prison to the court—from the court file the previous day. Counsel stipulated to the chain of custody for those records. The court said it would issue an order that day permitting the defense investigator to interview Fisher at Corcoran. 3. The Franklin hearing and the court's ruling on Fisher's motion to strike his firearm enhancement
Counsel, along with Fisher, appeared on October 18, 2019, for the Franklin hearing. Flanagan made no written or oral motion to continue, nor did he tell Judge Escobedo he wasn't ready, needed more time, or had been unable to obtain any necessary documents or information or to secure any necessary witnesses.
Flanagan filed a memorandum stating the relevant facts: Fisher had "led an unremarkable life" until he was 13. At that age he became a member of the Hoover gang "due to peer pressure and protection from other gangs." Fisher's mother "was a habitual drug user, addicted and living on the streets." His father had moved to Colorado and later went to prison for a homicide. Fisher's "beloved grandmother" raised him. Retired Los Angeles Police Department Officer Frank DeGourville told the defense investigator that Fisher's parents "were involved in street activities." Another witness, Altoria Fuller, told the investigator Fisher's parents "had a negative impact" on his development "due to drug use and incarceration." Fisher's father Kenneth told the investigator Fisher "raised himself as his mother was involved in drugs and he (the father) was in and out of prison." Fisher's aunt, Ethel Smith, told the investigator the murder of Fisher's uncle when Fisher was a teenager "had a traumatic and negative impact on [him]."
Flanagan's memorandum stated Fisher dropped out of high school after the eleventh grade "because he was illiterate"—"[h]e could not read or write and it became frustrating." Flanagan reported Fisher had "taught himself to read and write since he was incarcerated," had tutored younger inmates, had covered his gang tattoo with a tattoo unrelated to gangs, and had married "his loving wife."
The court told Flanagan his memorandum "covered what you need to cover with regard to Franklin issues, particularly the issue with his parents. I think that's of utmost importance as well." The court then asked, "Anything else you wish to offer?" Flanagan responded, "No." He added he'd "like to introduce the Court to [his] client, Mr. Dumar Fisher," and to introduce his "supporters" who had "packed" "the courtroom." Flanagan then introduced Fisher's mother, father, son, brother, sister, two aunts, three uncles, two first cousins, and another cousin.
The court then spoke directly with Fisher. The court told Fisher it would be his decision about what to do with his life. Fisher told the court he was "making strides" in his programs and "trying" "to better [him]self." The court encouraged Fisher to complete his GED and "[g]et your college program started." Flanagan told the court Fisher had worked as a cook for the past three years. The court asked Fisher, "Are they giving you any leeway to do experimental cooking?" and Fisher answered, "Yes." The court said, "Good for you. Good for you. Continue with your path, sir. Just do the right thing, because you know what the right thing is." Fisher responded, "Absolutely."
The court told Flanagan, "I think you've got a good package. I don't know what the parole board will do."
Flanagan then said Fisher had "asked [him] to raise a 620 issue." Flanagan had explained to his client that the Franklin hearing would not include "620 proceedings." The court noted Senate Bill 620 was not retroactive where, as in Fisher's case, the judgment had been affirmed and the remittitur issued. Flanagan agreed and told the court, "I will advise him."
In closing, the court told Fisher, "You have what's necessary for your parole hearing. I wish you luck, Mr. Fisher. You're still young. . . . [¶] Do the right thing. Continue to help others." The court said, "Hang in there, Mr. Fisher." Fisher responded, "All right. Thank you." The court thanked Fisher's family "for coming out and supporting him."
4. The court's subsequent order and Fisher's notice of appeal
On October 22, 2019, the court issued a written order. The order stated both Fisher's September 2019 "request . . . to reconsider its sentencing" and his November 2018 writ petition were "denied." The court listed the various writ petitions and other motions Fisher had filed between 2006 and 2019. The court noted it had "granted [a Franklin hearing] for parole purposes." The hearing had taken place and "[t]he habeas was denied in all other respects as in the previous Habeas writs from which this court incorporates all prior findings of the court." As for the motion for resentencing under Senate Bill 620, the order stated Fisher was not entitled to relief "because the amended sections do not create an independent right to resentencing for final cases."
On December 9, 2019, Fisher filed a notice of appeal. Although Flanagan's law office is listed under "attorney," it appears Fisher prepared the notice without the assistance of counsel. Fisher stated he was appealing from an order of "October 17, 2019 [sic] (Franklin Hearing)." However, under "basis for this appeal," Fisher wrote, "Failure to render a ruling on a SB 620 motion." Fisher attached as an exhibit the docket from his case.
DISCUSSION
1. Fisher's claim he was not given an adequate opportunity to make a record at his Franklin hearing is not properly before us and is meritless in any event
Our Legislature enacted section 3051, as well as section 4801, in light of United States Supreme Court decisions that recognized the lessened culpability and greater prospects for reform that distinguish juvenile from adult offenders. (See Graham v. Florida (2010) 560 U.S. 48; Miller v. Alabama (2012) 567 U.S. 460.) In Franklin, the California Supreme Court interpreted sections 3051 and 4801 to require a youth offender have 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.) "[A]n offender entitled to a hearing under sections 3051 and 4801 may seek the remedy of a Franklin proceeding even though the offender's sentence is otherwise final." (In re Cook (2019) 7 Cal.5th 439, 451.)
Section 4801, subdivision (c), requires the Board of Parole Hearings to "give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law" when considering an offender's parole eligibility under section 3051. (§ 4801, subd. (c).)
In his opening brief, Fisher contends the trial court's "conduct of the [Franklin] hearing, in denying him a necessary continuance and the opportunity to present witness testimony deprived him of a meaningful opportunity to present evidence of the youth-related factors bearing on his culpability or cognitive maturity at the time of the offense." There are at least three problems with this contention.
First, it is unclear what order—if any—Fisher has purported to appeal from. His notice of appeal refers to an October 17, 2019 order. Assuming he means to refer to the October 18, 2019 hearing, the court did grant him a Franklin hearing. Apart from a parenthetical reference to "Franklin Hearing," Fisher's notice of appeal complains only of the court's alleged failure to rule on his motion for resentencing under Senate Bill 620. (As we have said, the court did rule on that motion.)
Fisher did not file a notice of appeal from the court's October 22, 2019 order denying his petition for a writ of habeas corpus. While the court's October 22 ruling is a bit unclear, it seems the court (1) noted it had granted Fisher the Franklin hearing he requested, and (2) to the extent Fisher's writ petition sought any other relief, denied it "in all other respects" based on the court's many prior rulings on Fisher's prior petitions and motions.
To the extent Fisher now purports to appeal from the October 22 order denying his writ petition, "[n]o appeal lies from an order denying a petition for writ of habeas corpus." (Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1064. See also In re Clark (1993) 5 Cal.4th 750, 767, fn. 7; People v. Gallardo (2000) 77 Cal.App.4th 971, 983 ["Although the People may appeal the granting of a writ of habeas corpus, the detainee has no right to appeal its denial and must instead file a new habeas corpus petition in the reviewing court."]; § 1506; Cal. Rules of Court, rule 8.388.)
Second, even if Fisher had some legitimate path to an appeal, he has forfeited the argument that the trial court denied him "a meaningful opportunity" to present necessary information. As we have noted, at the October 18 hearing Flanagan never asked for more time or told the court he was unprepared or had not had enough time to gather documents and witnesses. Having made no objection to the timing or length of the October hearing in the trial court, Fisher has forfeited the issue on appeal. (People v. Powell (2018) 6 Cal.5th 136, 182; People v. Hinton (2006) 37 Cal.4th 839, 893.)
Finally, even if Fisher had not forfeited this claim, we would find no violation of his rights. The record belies his assertion that the court "den[ied] him a necessary continuance and the opportunity to present witness testimony." While the court's tentative was to deny Flanagan's September 2019 motion to continue, after hearing further from counsel the court granted the continuance and postponed the hearing to October 18. On October 18 Flanagan filed a memorandum presenting the facts he wanted to put on the record and reciting information witnesses had given to the defense investigator. The court asked Flanagan, "Anything else you wish to offer?" Flanagan answered, "No." Flanagan then introduced Fisher as well as thirteen members of his family who were present in court. Flanagan chose not to call any of those family members to testify; the court never precluded him from doing so.
The court told Flanagan, "I think you've covered what you need to cover with regard to Franklin issues," and "I think you've got a good package." The court then engaged in a colloquy with Fisher, urging him to further his education, to continue to help younger inmates, and to "[d]o the right thing." The court told Fisher to "[h]ang in there" and wished him luck.
On appeal, Fisher offers no examples whatsoever of any information or witnesses he proposed or wished to present but that the court precluded. Without any citations to the record, Fisher asserts his (unnamed) witnesses "were not given an opportunity to testify" and "there was no opportunity to introduce supporting documentary evidence." Fisher has no record citations because the record contains nothing to support these claims.
2. Fisher is not entitled to resentencing under Senate Bill 620 because his case was final many years ago
Fisher's second contention is that Senate Bill 620 should apply retroactively to final cases. As Fisher implicitly acknowledges—he cites no case that has so held—California courts have uniformly and consistently ruled to the contrary.
As noted, Fisher did not appeal from the trial court's October 22 written order denying his motion to "modify" his sentence. However, we liberally construe his notice of appeal (see Cal. Rules of Court, rule 8.304 (a)(4)) to appeal from the court's statements at the October 18 Franklin hearing that the legislation is "not retroactive" and thus "he doesn't qualify for an [S]B 620."
Effective January 1, 2018, Senate Bill 620 (2017-2018 Reg. Sess.) gave trial courts previously unavailable discretion to strike or dismiss firearm enhancements that sections 12022.5 and 12022.53 otherwise require courts to impose. (§ 12022.5, subd. (c), as amended by Stats. 2017, ch. 682, § 1; § 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2.) As one appellate court recently stated, "[t]here is no dispute that these statutory amendments apply retroactively to cases in which the judgment was not yet final when Senate Bill No. 620 went into effect." (People v. Baltazar (2020) 57 Cal.App.5th 334, 337, italics added (Baltazar).) But every published case to have considered the issue has concluded Senate Bill 620 does not apply retroactively to cases that have become final. (See People v. Hernandez (2019) 34 Cal.App.5th 323, 325-327 (Hernandez); People v. Hargis (2019) 33 Cal.App.5th 199, 209 (Hargis); People v. Johnson (2019) 32 Cal.App.5th 938, 941-942 (Johnson); People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 [Senate Bill 620 "does not contain language authorizing resentencing of convictions after they became final"; trial court thus lacked jurisdiction to modify defendant's sentence]; People v. Harris (2018) 22 Cal.App.5th 657, 662 (Harris) ["[I]f the Legislature wanted to provide a specific procedure via petition or motion to reopen final cases for resentencing, it could have done so. . . . It did not."].) Our Supreme Court denied review in Hernandez, Johnson, and Harris. (See Hernandez, supra, review den. July 24, 2019; Johnson, supra, review den. June 12, 2019; Harris, supra, review den. July 18, 2018.)
For the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. (Johnson, supra, 32 Cal.App.5th at 942.) "The United States Supreme Court Rules, rule 13 provides that a petition for writ of certiorari is timely filed within 90 days after entry of judgment of a state court of last resort." (People v. Lizarraga (2020) 56 Cal.App.5th 201, 206.) The record does not show Fisher filed a petition for review in the California Supreme Court or a petition for certiorari in the United States Supreme Court. Thus his judgment was final in January 2002, 90 days after we affirmed his conviction on October 25, 2001.
Fisher argues (1) the Legislature intended Senate Bill 620 to apply to final cases; and (2) "applying the benefits of amended section 12022.53 to non-final cases but denying those benefits to final cases violates the equal protection clauses of the federal and state Constitutions." Published cases have considered and rejected both of these arguments. (See Hernandez, supra, 34 Cal.App.5th at pp. 326-327 [no equal protection violation]; Baltazar, supra, 57 Cal.App.5th at pp. 340-341 [rejecting both legislative intent and equal protection arguments]; Hargis, supra, 33 Cal.App.5th at p. 210 [rejecting legislative intent argument].)
We decline Fisher's invitation to disregard this substantial body of precedent.
DISPOSITION
We reject Dumar Cardin Fisher's contention that he was denied an adequate Franklin hearing. We affirm the trial court's denial of Fisher's motion to "modify" his sentence to strike or dismiss his firearm enhancement under Senate Bill No. 620.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
LAVIN, Acting P. J.
Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------