Opinion
H043647
03-08-2018
THE PEOPLE, Plaintiff and Respondent, v. SAUL DAVID GARCIA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1369074)
Defendant Saul David Garcia was convicted after jury trial of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), attempted carjacking (§§ 664, 215), felony false imprisonment (§§ 236, 237), and kidnapping during a carjacking (§ 209.5).
Unspecified statutory references are to the Penal Code. --------
On appeal, he argues the court erred by requiring him to disclose undiscovered impeachment evidence in advance of using it for cross-examination. He also argues he was denied effective assistance of counsel throughout his trial, the court violated section 654 by not staying his sentence for second degree robbery, and the matter must be remanded for a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
STATEMENT OF FACTS
Defendant committed two separate robberies in this case: one of Andrew Bodenhamer on October 19, 2013, and the other of Ali Sedda on October 22, 2013.
Bodenhamer was robbed at the Motel 6 on 2081 North First Street in San Jose. He went there to meet a prostitute named Jovana Washington who advertised her services on the Internet.
When Washington went into the bathroom, a man came out with a blue bandana covering his face, pointed a gun at Bodenhamer, and ordered him to lie face down on the floor with his arms spread out. Defendant later confessed to police that he was the man who came out of the bathroom and ordered Bodenhamer to lie on the ground. Once Bodenhamer was on the ground, defendant made him put the bandana in his mouth and tie it around his head. Defendant straddled Bodenhamer's back and pressed what felt like a gun to the back of his head. Defendant then got up and left the room.
Defendant took the car keys from Bodenhamer's pocket, and told him he should not call the police and they were going to take his car.
Defendant left the room and closed the door. Shortly thereafter, defendant came back into the room while Bodenhamer was still on the floor. Defendant put the gun to Bodenhamer's head and asked him how to start the car. Bodenhamer told defendant he needed to push down the clutch to start the car because it had a manual transmission. Defendant left the room again, and after waiting about five minutes, Bodenhamer took the bandana out of his mouth and looked around the room. His car keys and cellphone were gone, but his car was still in the parking lot.
Bodenhamer went to the registration desk, told the clerk he had been robbed, and called 911. Bodenhamer spoke with a police officer at the motel. A yellow box containing air-pistol cartridges was found in Bodenhamer's car, and an airsoft gun was found on the bed in the motel room.
The clerk at the registration desk of the Motel 6 gave the police a receipt showing defendant stayed in the room where Bodenhamer was robbed. Defendant checked in on October 16, and checked out on October 19. When defendant checked in, he showed the clerk his driver's license. The motel receipt contained defendant's driver's license number, date of birth, and address.
On October 22, three days after the Bodenhamer robbery, Sedda was robbed at the Santa Clara Inn in San Jose. Sedda was working delivering pizza at 10:49 p.m. when he received an online order from "Steve O" for delivery to room 219 of the motel. After he arrived at the motel, Sedda parked close to room 219 and left his keys in the car. He walked to the stairs with the pizza, and saw defendant standing in front of room 219, leaning against the wall, smoking a cigarette. Halfway up the stairs, Sedda noticed someone walking behind him. He turned to look back, and saw defendant pointing a gun at him. Defendant asked Sedda for his car keys. Sedda said the keys were in the car. Defendant continued to point the gun at Sedda and said, "Just shut up. Go back and walk back to the car."
Once at the car, defendant told Sedda to get inside. Defendant was behind Sedda, still pointing the gun at him. Defendant told him to open the front passenger side door. Defendant pushed Sedda into the car, and forced his head down. Defendant told Sedda that he would shoot him if he lifted his head. He took Sedda's cellphone at gunpoint, and demanded that Sedda type a number into the phone and hand it back to defendant so that he could make a phone call. When no one answered the call, defendant said, "Damn it." Defendant kept Sedda's phone.
Sedda heard the back doors of the car open, and a woman and a man got into the car. Defendant started the car and drove towards the freeway, holding the gun to the back of Sedda's head as he drove. The car crashed into something before reaching the freeway. After driving for four to six minutes, defendant stopped the car on the shoulder of the freeway, told Sedda to get out, and drove away. Sedda ran to the next exit, found a gas station and called the police.
Sedda spoke with a police officer at the gas station and told him he was robbed while delivering pizza to room 219 at the Santa Clara Inn. The officer went to the motel and saw that room 219 appeared to be unoccupied. However, the door to room 218 was open, and the room looked like it had been ransacked. The officer asked the clerk about rooms 218 and 219. The clerk said that defendant rented room 218, and that room 219 had been vacant since October 15. The police later viewed video of the registration desk at the Santa Clara Inn that appeared to show defendant had checked in.
On October 24, Solano County Sheriff's officers found Sedda's car parked at America's Best Value Inn in Fairfield. The right front door, the right rear door, and the right rear bumper were damaged. On October 25, a Fairfield police officer detained defendant and Antonio Moya in a parking lot next door to the one where Sedda's car had been found.
After detaining defendant and Moya, the officer searched their room at America's Best Value Inn. Washington was there. The officer found a pellet gun in a drawer underneath the television. It was a replica of a .45-caliber handgun. The officer also found a real .22-caliber rifle and 25 rounds of ammunition for the rifle in the room. The officer released defendant, Moya and Washington following the search.
Later, the police searched Sedda's car for evidence. They found a partially burned cigarette that contained Moya's DNA, four rounds of .22-caliber ammunition and mail addressed to defendant.
On October 28, the police showed Bodenhamer and Sedda photographic lineups. Bodenhamer identified Washington as the woman he met at the Motel 6. He told the police he did not think he could identify the man with the gun, because he had only seen him briefly before the man ordered him to lie on the ground. The police showed Bodenhamer photographs, and he chose a photograph of someone other than defendant.
Sedda chose a photograph of defendant and said he was "a million percent sure" defendant was the one who pointed the gun at him. On November 5, police arrested defendant and Moya. Defendant had an airsoft gun in his waistband. They had been staying at the Ramada Inn in San Jose.
The police analyzed defendant's cellphone and found text messages and a photograph related to the crimes in this case. Moya wrote to defendant on October 4 stating: "You should stay with me and like bitches. I pimp in San Jose. You can stay in my hotel room. I will pay you gas in denomination money and we rob all over SJ. It's all good, Bro. Good money, Bro." Defendant responded, saying: "Shit, I'm down ene." Moya then said, "I lost my car, so I can't take my bitches around to you guys. But if you're with, we can take them. I'll pay you and we can stay at rich hotels and rob hell of shit in sjg." Defendant said: "Aha. Shit. Ene. I'm down. Count me in. I'm down, homey." On October 17, defendant sent a message to an unknown person that described what he was doing with Moya and Washington, stating: "Me bol got a real rifle and baby niggah with one gun and me and my boy with two guns, Del Rio kmon [sic]."
The cellphone contained other text messages from defendant on October 14 that mentioned the Motel 6, and on October 16 that mentioned the Santa Clara Inn. Defendant sent a text message to an unknown person on October 22 prior to the robbery of Sedda that stated: "When can you? We tried to go to Hayward, but we need a car first. We tried to come up on it. But when can you meet up?" Defendant's phone had a picture of what appeared to be an airsoft handgun.
During a police interview, defendant said he was in the bathroom with Moya at the Motel 6 on October 19 while Washington met with Bodenhamer in the room. Defendant was the first one to come out of the bathroom and ordered Bodenhamer to lie on the ground. Defendant admitted that his belongings were in Bodenhamer's car.
When Washington was interviewed, she told the police that defendant pointed a fake gun at the pizza deliveryman and pushed him with the fake gun. She also told the police that around the time they called the pizza deliveryman, defendant needed to be somewhere and said, "We're just going to take the car."
Washington testified at trial, and corroborated Bodenhamer and Sedda's accounts of the crimes.
STATEMENT OF THE CASE
On March 16, 2016, an amended information was filed charging defendant and Moya with second degree robbery (in violation of §§ 211, 212.5, subd. (c); counts 1 & 4); attempted carjacking (§§ 664, 215; count 2); felony false imprisonment (§§ 236, 237; count 3); and kidnapping during a carjacking (§ 209.5; count 5). The information further alleged, as to counts 1, 3, and 4, that defendant had personally used a deadly and dangerous weapon, an airsoft gun, within the meaning of section 12022, subdivision (b)(1). As to counts 2 and 5, the information further alleged defendant had personally used a deadly and dangerous weapon, an airsoft gun, within the meaning of section 12022, subdivision (b)(2).
Following a jury trial, defendant was found guilty as charged, and all of the special allegations were found to be true. Defendant was sentenced to an indeterminate term of seven years to life consecutive to a determinate term of seven years four months. The indeterminate term was for kidnapping during a carjacking (§ 209.5; count 5).
DISCUSSION
Requirement of Disclosure of Impeachment Evidence
During the hearing on pretrial motions, the trial court stated its rules for the disclosure of impeachment evidence during cross-examination of witnesses as follows: "My number one rule is no surprises. [¶] I don't think I've had it with [defense counsel], but I've had issues with attorneys. They use the label of impeachment, 'This is impeachment,' and, therefore, they believe that they can just spring it on a witness without court review. Not—I don't agree with that. [¶] There are things, for example, prior inconsistent statements, I don't know if Ms. Washington said to who, they may not have to be discovered under 1054, but there's not going to be any questioning of a witness on things that have not been heard by the court and opposing counsel. [¶] So if you believe you want to go into a prior inconsistent statement or have something, you approach, we discuss it, and then go forward, because every single piece of evidence, including testimonial evidence, has to be analyzed under 352 prior to the jury hearing it."
Defense counsel did not object to the court's order, thereby forfeiting the issue for the purposes of appeal. (See People v. McCullough (2013) 56 Cal.4th 589, 593.) However, defendant argues the forfeiture rule should not apply, because the court's order was structural error requiring reversal per se. He asserts the order amounted to constructive denial of his Sixth Amendment right to counsel at a critical stage, because it imposed a duty to provide additional discovery that prevented his counsel from effectively cross-examining witnesses.
We are not persuaded that the court's order was structural error, because it did not limit the scope of cross-examination or defense counsel's ability to cross-examine the witnesses. The court merely restricted the manner in which impeachment evidence would be presented at trial. (See People v. Smith (2007) 40 Cal.4th 483, 513.) As the order did not constructively deny defendant of his right to counsel at a critical stage, any alleged error was not structural.
In requiring counsel to inform the court about undisclosed impeachment evidence prior to bringing it before the jury, the court was exercising its duty "to control all proceedings during the trial, and to limit the introduction of evidence . . . to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth." (§ 1044.) The order allowed the court to ensure that only relevant evidence that was not unduly prejudicial under Evidence Code section 352 be brought before the jury during cross-examination.
Moreover, any error by the trial court in making the order, or defense counsel in failing to object to it was harmless. Defendant did not seek to introduce any impeachment evidence, and therefore, he was not required to disclose it to the court or the prosecutor. Therefore, it is not "reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)
Ineffective Assistance of Counsel
Defendant argues he was denied effective assistance of counsel because his attorney failed to object to the court's jury instructions and to the admission of opinion evidence, withdrew a motion to suppress prior to trial, and failed to request a limiting instruction regarding the content of text messages.
The standard for evaluating a claim of ineffective assistance of counsel is well established. It requires a two-prong showing that counsel's representation was deficient based on an objective standard under prevailing professional norms, and that defendant was prejudiced by the deficient representation under a reasonable probability standard. (Strickland v. Washington (1984) 466 U.S. 668, 687-696 (Strickland).) Absent a given reason, a court cannot presume incompetence, and the claim must be rejected on appeal. (People v. Huggins (2006) 38 Cal.4th 175, 206.)
The burden of establishing ineffective assistance of counsel is upon the party claiming it. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) " 'The proof . . . must be a demonstrable reality and not a speculative matter.' " (People v. Karis (1988) 46 Cal.3d 612, 656.)
In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions. (People v. Earp (1999) 20 Cal.4th 826, 896.)
Nevertheless, a reviewing court need not assess the two Strickland factors in order; and if the record reveals that the defendant suffered no prejudice, we may decide the issue of ineffective assistance of counsel on that basis alone. (Strickland, supra, 466 U.S. at p. 697.) If it is more efficient to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice that course should be followed. (Ibid.)
Jury Instructions on Washington's Testimony
Washington, who was an accomplice to the crimes, testified at trial while she was in custody and wearing prison clothing. Prior to her testimony, the trial court used CALCRIM No. 337 to instruct the jury as follows: "Ms. Washington is in custody. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness' testimony according to the instruction that I will give you. [¶] It is neither here nor there that she is in custody. You would hear circumstances from her testimony." The court gave no other instructions to the jury at that time.
At the conclusion of trial, the court instructed the jury using CALCRIM No. 335 related to Washington's status as an accomplice to the charged crimes. The instruction was as follows: "If the crimes charged were committed, then Ms. Jovana Washington was an accomplice to those crimes. [¶] . . . [¶] Any statement of testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in the light of all the other evidence."
Defendant does not argue the instructions were legally incorrect; rather, he asserts the instructions were not given at the proper time, and his counsel was ineffective for failing to bring this matter to the court's attention and correcting it. Specifically, he argues by giving the jury the in-custody instruction in isolation prior to Washington's testimony, and waiting until the end of trial to give the accomplice instruction, the court gave the jury the "misimpression" that it could consider Washington's testimony in the same light as any other witness and not with the requisite caution.
The flaw in defendant's argument is that it presupposes the jury did not follow all of the court's instructions while deliberating. Whether or not the jury was under a "misimpression" that Washington's testimony could be considered like any other testimony, the jury was ultimately instructed they must consider it with caution because she was an accomplice to the crimes charged. We presume the jury followed the instructions that were given. (People v. Pearson (2013) 56 Cal.4th 393, 477.) There is nothing in the record to show that the jury did not consider Washington's testimony with the appropriate caution.
The court did not err by the timing of its instructions, and defense counsel had no reason or need to object. Defendant did not suffer ineffective assistance of counsel.
Failure to Object to Testimony About Airsoft Guns
Detective Ryan Chan, who investigated the crimes in this case, testified at trial and was asked questions from the prosecutor about airsoft guns. He explained that an airsoft gun is a replica firearm and like a real firearm, it shoots projectiles. Detective Chan testified that "in our eyes," an airsoft gun is a "deadly weapon." Defense counsel did not object to the admission of this opinion testimony.
Shortly after Detective Chan stated that an airsoft gun is a deadly weapon, the court instructed the jury, sua sponte, as follows: "Let me just indicate the officer has given his opinion that this constitutes a deadly weapon. That's for you to decide. You'll be given instructions on what to find a dangerous and deadly weapon. His testimony can be considered but that is a determination for the jury."
Defendant argues his counsel should have objected to Detective Chan's opinion testimony that an airsoft gun is a dangerous weapon. He points to the fact that Detective Chan was not qualified as an expert on firearms, and offered an improper opinion that not only did he consider airsoft guns to be deadly weapons, but by saying "in our eyes," he implied that law enforcement in general considered the guns to be deadly.
Defense counsel could have had any number of tactical reasons for not objecting to Detective Chan's testimony. She was in the best position to evaluate the jury's reaction to the testimony, and may have believed that an objection would draw attention to the opinion. Additionally, defense counsel may have believed the court's instruction immediately following the testimony was sufficient to address the issue without further objection.
"[C]ompetent counsel may often choose to forgo even a valid objection. '[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.' " (People v. Riel (2000) 22 Cal.4th 1153, 1197.) We cannot conclude from the record that " ' "there simply could be no satisfactory explanation," ' " for defense counsel's choice not to object. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Defendant fails to establish his counsel's representation was deficient.
Withdrawal of Motion to Suppress Evidence
The attorney who represented defendant before trial filed a motion to suppress evidence seized at the Motel 6 in San Jose, the Santa Clara Inn in San Jose, America's Best Value Inn in Fairfield and the Ramada Inn in San Jose. The motion argued defendant had a reasonable expectation of privacy in those locations, and the searches were warrantless. Defendant's trial counsel withdrew the motion.
Defendant argues his counsel should not have withdrawn the motion, because it would have been successful, the evidence seized from the four motels would have been suppressed, and without that evidence admitted at trial, defendant would have achieved a more favorable result.
Assuming defense counsel was deficient for withdrawing the motion, and assuming the motion would have been successful and the evidence suppressed, defendant was not prejudiced in this case. There was substantial evidence supporting his convictions without the introduction of evidence that was the subject of the motion to suppress.
With regard to the robbery of Bodenhamer, Bodenhamer identified Washington as the prostitute he met in the motel. Defendant admitted to the police that he was the man who came out of the bathroom in the room and ordered Bodenhamer to the floor, got on top of him, and stole the keys to his car. Defendant used his own name, address, birth date, and driver's license number to register at the Motel 6, all of which the police retrieved from the registration desk. A box of airsoft cartridges was found in Bodenhamer's car.
Similar evidence was introduced regarding the robbery of Sedda. Sedda identified defendant as the person who pointed a gun at him, ordered him to get into his car, and drove the car away with Sedda in it. Videotape from the Santa Clara Inn where Sedda came to deliver pizza and where defendant robbed, kidnapped and stole Sedda's car showed defendant registering for the room, and records showed defendant registered for the room in his name. Moya's DNA, ammunition and mail addressed to defendant were found in Sedda's car. In addition, Washington corroborated Bodenhamer and Sedda's accounts of the crimes.
The evidence that would have been excluded had the motion to suppress been successful was not necessary to convict defendant of the crimes charged. As a result, defendant cannot establish he was prejudiced by his counsel's withdrawal of the motion prior to trial. It is not reasonably probable that the result of the trial would have been different absent defendant's counsel's alleged deficient performance. (In re Ross (1995) 10 Cal.4th 184, 201.)
Failure to Request a Limiting Instruction
During in limine motions, defense counsel requested the text messages from defendant's cellphone be excluded at trial. The court denied the request, stating that Moya's messages to defendant were not being used for the truth of their content; rather they were being used to show intent and their effect on the listener. When the messages were admitted into evidence, the court did not instruct the jury that they should consider the text messages for a limited purpose.
Defendant argues his counsel should have requested a limiting instruction. However, he cannot establish "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome." (In re Ross, supra, 10 Cal.4th at p. 201.) The content of the messages that Moya was pimping prostitutes in San Jose, and robbing people while doing so was established by other evidence at trial: specifically, the motel records where Moya and Washington were staying, Washington's testimony about their activities and Bodenhamer's testimony that he hired Washington and was robbed in a motel room by she and another man. Instructing the jury that they could only consider the messages for a limited purpose would not have affected the outcome of this case.
Cumulative Impact of Deficient Representation
Defendant argues the cumulative impact of his counsel's deficient representation "so prejudiced [him] that he was denied an impartial jury, fair trial, due process of law, and a reliable verdict . . . ."
The record does not show defendant's counsel was deficient, nor does it show defendant was prejudiced by any of his counsel's alleged errors. Defendant "was entitled to a fair trial but not a perfect one." (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Defendant received due process and a fair trial in this case.
Section 654Defendant argues his sentence of one year four months for second degree robbery (§§ 211, 212.5, subd. (c); count 4) should have been stayed pursuant to section 654, because his intent and objective in committing that crime was the same as his intent in kidnapping Sedda (§ 209.5; count 5), specifically, to facilitate the carjacking of Sedda's car without police interference.
Section 654, subdivision (a) provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." This statute "precludes multiple punishment for a single act or omission, or an indivisible course of conduct," regardless of whether the sentence imposed is concurrent or consecutive. (People v. Deloza (1998) 18 Cal.4th 585, 591.) "A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618.)
The court did not state its reasons for imposing separate punishments for counts 4 and 5. Defendant argues the court's implied finding that the two crimes were motivated by separate intents was not supported by substantial evidence. Defendant argues defendant's acts of robbing Sedda of his cellphone, and kidnapping him were an indivisible course of conduct intended to prevent Sedda from contacting the police.
In support of his argument, defendant points to the prosecution's theory at trial. The prosecution argued defendant moved Sedda to the car during the carjacking "to make sure that he couldn't raise an alarm, that he couldn't call anyone for help," and defendant had the same intent when he took Sedda's cellphone, namely, to prevent Sedda from calling the police. The prosecution argued defendant "kept [Sedda] in the car because he had to take him to a location where it would be hard for him to call the police. [¶] So what is the first thing he does? He takes the cell phone from Mr. Sedda to make sure he wouldn't be able to call the police."
Defendant's reliance on the prosecution's theory at trial is misplaced. The question here is whether the court's implied finding is supported by substantial evidence. The prosecution's theory of the case and argument to the jury is not evidence. (See People v. Samayoa (1997) 15 Cal.4th 795, 844; CALCRIM No. 222 [an attorney's statements during trial are not evidence].)
Moreover, "[t]he divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one." (People v. Bauer (1969) 1 Cal.3d 368, 376.) Here, it cannot be said that when defendant kidnapped Sedda and robbed him of his phone, he had a single objective of preventing Sedda from contacting the police. Sedda testified that when defendant pointed the gun at him and demanded his cellphone, defendant immediately used the phone to make a call. If defendant's only objective in taking Sedda's phone was to prohibit Sedda from calling the police, he would not have used the phone to make a call. Sedda also testified that defendant kept the phone. Defendant may have also stolen Sedda's cellphone purely for its value.
The court's implied finding that defendant harbored a different intent and objective in robbing Sedda of his cellphone versus kidnapping Sedda is supported by substantial evidence. The court did not violate section 654 by sentencing defendant to separate terms for these crimes.
Franklin Hearing
Defendant asserts, and the People concede that this matter must be remanded to the trial court to determine whether defendant had an opportunity to present evidence that would be relevant to his future youth offender parole hearing.
In Franklin, the defendant was sentenced to two mandatory terms of 25 years to life for crimes he committed when he was 16 years old. (Franklin, supra, 63 Cal.4th at pp. 268, 276.) The defendant was sentenced prior to the enactment of section 3051, which mandates a parole hearing after 25 years for a defendant sentenced to 25 years to life for a crime committed while the defendant was under the age of 25. (§ 3051, subds. (a)(1) & (b)(3).) The court in Franklin held that section 3051 entitled the defendant to present evidence in the trial court about his level of maturity when he committed his crimes, and that if he did not have a sufficient opportunity to do so at his original sentencing, the matter must be remanded to the court to do so. (Franklin, supra, at pp. 283-284.)
Here, defendant was 19 years old when he committed the offenses. Although the sentencing hearing in this case was after section 3051 was amended to include defendants aged 18 to 23, the Supreme Court had not yet decided Franklin. "Prior to Franklin, however, there was no clear indication that a juvenile's sentencing hearing would be the primary mechanism for creating a record of information required for a youth offender parole hearing 25 years in the future." (People v. Jones (2017) 7 Cal.App.5th 787, 819.)
We accept the People's concession that this matter must be remanded to determine whether defendant had an opportunity to present evidence relevant to a future youth offender parole hearing, and if not, to allow defendant to make such a record. (See In re Cook (2017) 7 Cal.App.5th 393, 399 [directing trial court to conduct a hearing allowing defendant opportunity to make a record that will allow future parole board to fulfill its statutory obligations under § 3051 and § 4801].)
DISPOSITION
The matter is remanded to the trial court for the limited purpose of determining whether defendant had 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 an adequate opportunity to make such a record.
As modified, the judgment is affirmed.
/s/_________
Premo, Acting P.J.
I CONCUR: /s/_________
Grover, J.
I CONCUR IN JUDGMENT ONLY: /s/_________
Mihara, J.