Opinion
G047199
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. JAIME GUADALUPE GONZALEZ, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Lise Jacobson and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11ZF0111) OPINION Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed, with directions on remand. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Lise Jacobson and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Jaime Guadalupe Gonzalez of first degree murder (count 1; Pen. Code, § 187, subd. (a); all further undesignated statutory references are to this code) and street terrorism (count 2; § 186.22 ,subd. (a)) for killing 20-year-old Juan Carlos Cena. The jury found true a special circumstance allegation that Gonzalez, who was 15 years old at the time of the offense, intentionally committed the murder for a criminal street gang purpose (§ 190.2, subd. (a)(22)), and found true a gang penalty enhancement allegation (§ 186.22, subd. (b)(1)). The jury also found Gonzalez was a principal in committing a gang offense involving the intentional discharge of a firearm causing death (§ 12022.53, subds. (d) & (e)(1)). The trial court sentenced Gonzalez to a mandatory term of 50 years to life for count 1, consisting of 25 years to life for first degree murder and a consecutive 25-years-to-life term for the firearm use enhancement. The court stayed under section 654 Gonzalez's street terrorism sentence on count 2. Gonzalez contends in light of his youth at the time of the offense that his lengthy sentence violates the federal and state guarantees against disproportionate punishment. (U.S. Const., 8th Amend.; Cal. Const., art. 1, § 17.)
This is our second opinion in this case. In the first, we held that even if Gonzalez's sentence of 50 years to life amounted to a de facto term of life in prison without the possibility of parole (LWOP), and was therefore unconstitutional when imposed as a mandatory sentence without any consideration of defendant's youth at the time of the offense (see, e.g., Miller v. Alabama (2012) ___ U.S. ___, 132 S.Ct. 2455 (Miller)), the then-recently enacted Senate Bill No. 260 (SB 260) cured or should cure the defect by providing for a parole hearing no later than a juvenile offender's 25th year of incarceration, even in LWOP cases. (§ 3051, subd. (b)(3).) In a separate opinion, Justice Bedsworth aptly expressed concern over whether a defendant's youth actually would receive full and fair consideration in 25 years' time if the parole hearing requirement were not expressly made a part of a juvenile's sentence. We unanimously rejected Gonzalez's alternative arguments asserting an as-applied, disproportional punishment challenge and a claim of ineffective assistance of counsel (IAC) for failure to raise his youth at the sentencing hearing, which we concluded would not have garnered him a parole hearing any earlier than under SB 260.
The Supreme Court granted review and held the case pending its decision in People v. Franklin (2016) 63 Cal.4th 261 (Franklin). In Franklin, the court reached the same conclusion we did about the effect of SB 260, interpreting it as a legislative cure to any lengthy mandatory sentence imposed on a juvenile offender that arguably violates constitutional safeguards against disproportional punishment. The court also ruled that because the statute applies by operation of law to all sentences, facial challenges aimed at mandatory sentences resulting in LWOP terms are foreclosed as moot. (Franklin, supra, 63 Cal.4th at pp. 276-280.) In an abundance of caution concerning the importance of the defendant's future parole hearing, the Supreme Court remanded Franklin for a determination whether the defendant "was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Id. at p. 284.)
The Supreme Court now has transferred this case back to us to reconsider in light of Franklin. We hold that SB 260 moots Gonzalez's facial challenge to the mandatory nature of his lengthy sentence and that his alternative as-applied and IAC claims are without merit. While we uphold his sentence, we conclude under Franklin that because the sentencing hearing reflects virtually no consideration of his age, Gonzalez is entitled to make a record before the superior court of "mitigating evidence tied to his youth" to ensure his eventual youthful offender parole hearing is meaningful and not simply perfunctory. (Franklin, supra, 63 Cal.4th at pp. 268-269, 283-284.)
I
FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2003, Gonzalez shot and killed Cena in a second encounter after two of Cena's friends dropped him off near an Anaheim intersection. According to Cena's friends, Cena planned to sell shampoo they had stolen from a store so they could use the proceeds to buy drugs. The trio belonged to the Kodiak criminal street gang, while Gonzalez belonged to Kodiak's rival, the Underhill gang. In an initial encounter, Cena's friends saw Gonzalez and a companion engage Cena in a conversation that did not appear friendly, "but there was no yelling." Cena returned safely to his friends' truck, and they dropped him off at the Balsom and Curtis intersection. Before the truck could make a u-turn to retrieve Cena, two shots rang out, felling Cena. The police and an ambulance responded, but Cena never regained consciousness and bled to death from his injuries.
More than a year later, Gonzalez's mother discovered a firearm in his possession and turned it over to the police. A ballistics test at the time did not connect the weapon, which had a damaged barrel, to Cena's shooting. Gonzalez admitted in a police interview only that he had received the gun as an Underhill gang member trying to earn his "stripes," and that he had used it to fire shots in the air to scare off rival La Jolla gang members in a different incident.
In 2009, a fellow gang member identified Gonzalez as the person who shot Cena and agreed to wear a recording device while he briefly shared a jail cell with Gonzalez, who was incarcerated on other charges. But Gonzalez admitted in the recording only that he possessed the handgun his mother discovered. The gang associate, however, also identified Gonzalez's accomplice on the day of the shooting, Ricardo Castaneda.
In May 2011, officers arrested Castaneda on an outstanding traffic warrant, he admitted his role in the shooting, and at trial in May 2012, Castaneda identified Gonzalez as the shooter. A new ballistics test conducted with the aid of 3-D printing technology to account for the damaged barrel on Gonzalez's gun confirmed the weapon matched the bullet retrieved when Cena died on a hospital gurney. The jury convicted Gonzalez as noted, and the trial court held a sentencing hearing in July 2012.
At the time of sentencing, Gonzalez was 23 years old and already serving an 11-year sentence for assaulting a police officer with a firearm. The trial court imposed a 50-years-to-life sentence and ordered it to run concurrently with Gonzalez's 11-year assault sentence. The trial court credited Gonzalez with just over a year of pretrial incarceration, 372 days, and Gonzalez now appeals his 50-years-to-life sentence.
II
DISCUSSION
Gonzalez contends his 50-year term is a de facto LWOP sentence and that mandatory imposition of the sentence renders it constitutionally defective. This claim fails because it is moot under Franklin and SB 260.
Based on the jury's true finding on the special circumstances allegation, the trial court's only sentencing option on the murder count was 25 years to life. (§ 190.5, subd. (b); see People v. Demirdjian (2006) 144 Cal.App.4th 10, 17 (Demirdjian) ["For juveniles under 16 who were 14 or 15 when the crime was committed, a life term without the possibility of parole is not permitted, leaving a term of 25 years to life with possibility of parole.) The court similarly had no discretion on the firearm enhancement, which required a mandatory, consecutive term of 25 years to life. (§ 12022.53, subds. (d), (g), (h).) Gonzalez is therefore correct that California's statutory scheme mandated a minimum term of 50 years to life in prison with no provision for the sentencing court to consider factors related to his youth.
In Graham v. Florida (2010) 560 U.S. 48 (Graham), the United States Supreme Court held it is cruel and unusual punishment to sentence juvenile nonhomicide offenders to LWOP. In Miller, supra, 132 S.Ct. 2455, the high court extended the reasoning of Graham to prohibit mandatory LWOP for juvenile homicide offenders. And in People v. Caballero (2012) 55 Cal.4th 262 (Caballero), the California Supreme court interpreted Graham and Miller to bar de facto LWOP sentences for juvenile nonhomicide offenders.
The underlying rationale of these decisions is that "[b]ecause juveniles have diminished culpability and greater prospects for reform," as compared to adult offenders, "'they are less deserving of the most severe punishments.' [Citation.]" (Miller, supra, 132 S.Ct. at p. 2464.) Indeed, the United States Supreme Court has made it clear that the "appropriate occasions for sentencing juveniles to [LWOP] will be uncommon" and that such punishment should be reserved for "'the rare juvenile offender whose crime reflects irreparable corruption.'" (Id. at p. 2469.) Accordingly, "sentencers in homicide cases [must] 'take into account how children are different [from adults], and how those differences counsel against irrevocably sentencing them to a lifetime in prison.' [Citation.]" (Caballero, supra, 55 Cal.4th at p. 268, fn. 4.) Absent exceptional circumstances, juvenile offenders must be given a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (Graham, supra, 560 U.S. at p. 75.)
As we noted in our original opinion, Gonzalez evaded apprehension for Cena's murder for several years and was not sentenced until he was 23 years old, eight years after the crime. This delay pushed his earliest release date on a 50-year sentence into his 70's. But even assuming based on the life expectancy data Gonzalez cites that his sentence amounts to a de facto LWOP term, SB 260 moots his facial challenge to his sentence as invalid mandatory LWOP punishment for a juvenile.
After Gonzalez was sentenced, the Legislature in 2013 enacted SB 260 "to bring juvenile sentencing into conformity with Graham, Miller, and Caballero." (Franklin, supra, 63 Cal.4th at p. 277.) With exceptions not applicable to Gonzalez, the statute entitles juvenile offenders convicted of crimes carrying a term of 25 years to life or greater to a "youth offender parole hearing" 25 years into their prison sentence. (§ 3051, subd. (b)(3).) Franklin held that because SB 260 gave juveniles serving a life sentence "a meaningful opportunity for release," "[s]uch a sentence is neither LWOP nor its functional equivalent." (Franklin, supra, 63 Cal.4th at pp. 279-280.) Consequently, under SB 260 and Franklin, Gonzalez's claim that his 50-year-to-life sentence constitutes an unconstitutional de facto life term is legally moot because the full statutory terms governing his sentence provide a meaningful parole opportunity. (Id. at p. 280.) Gonzalez's facial challenge based on the mandatory nature of his alleged de facto life term therefore fails.
Gonzalez's as-applied disproportionality challenge and his IAC claim also fail. Gonzalez contends his 50-years-to-life sentence does not reflect his actual culpability based on his individual characteristics, including youth and the inherent prospects of juveniles for reform, and therefore violates the constitutional bar against excessive punishment. Punishment that is grossly disproportionate to the offender's culpability violates constitutional norms prohibiting "cruel and unusual" (U.S. Const., 8th amend.) and "cruel or unusual" (Cal. Const., art. I, § 17 ) punishment. (See, e.g., Harmelin v. Michigan (1991) 501 U.S. 957, 997 (Harmelin) (conc. opn. of Kennedy, J.) [8th Amend. "encompasses a narrow proportionality principle"]; People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon) ["punishment may violate the constitutional prohibition not only if it is inflicted by a cruel or unusual method, but also if it is grossly disproportionate to the offense for which it is imposed"].) Because "in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments" (In re Lynch (1972) 8 Cal.3d 410, 414 (Lynch), a defendant bears a "considerable burden" to show the requisite disproportionality. (People v. Wingo (1975) 14 Cal.3d 169, 174 (Wingo).) Consequently, such findings "have occurred with exquisite rarity in the case law" (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196).
An as-applied challenge is subject to forfeiture, and Gonzalez did not raise the issue of cruel and unusual or disproportionate punishment below. Specifically, a challenge based on the particular characteristics of the defendant or the offense may be forfeited by failing to raise it. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) This rule overlaps with the principle that IAC claims often are not suitable for review on appeal because it may be that counsel investigated a course of action but found it wanting for reasons not apparent on the record. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Forfeiture is particularly appropriate where resolution of factual issues is necessary to determine whether the sentence is grossly disproportionate to the offender's culpability. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.) An appellate court nevertheless may reach the issue on the record presented (Demirdijian, supra, 144 Cal.App.4th at p. 14), often "'in the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel [IAC] claim.'" (People v. Em (2009) 171 Cal.App.4th, 964, 971, fn. 5.)
Here indeed, Gonzalez asserts an IAC claim based on counsel's failure to object to "the statutorily-mandated sentence . . . in view of appellant's individual characteristics." As Gonzalez phrases it: "Neither did counsel develop the record by supplying evidence of appellant's upbringing, family dynamics, educational difficulties, or peer pressures, though some of that information is contained in the overall record from the trial." While Miller may have suggested the importance of challenging even mandatory sentences for juvenile homicide defendants, we do not resolve Gonzalez's claim he must be resentenced on that ground. To prevail on a claim counsel rendered constitutionally defective assistance, the challenger must show his attorney's representation fell below an objective standard of reasonableness and that he suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216.) Prejudice arises only if there is a reasonable probability of a more favorable result absent counsel's failings. (Strickland, at p. 694.) We may first consider whether defendant suffered any prejudice from the attorney's alleged failings, without determining counsel failed to provide effective representation. (People v. Cox (1991) 53 Cal.3d 618, 656, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
The standard under the California Constitution for counsel to have obtained a reduced sentence despite mandatory statutory provisions (see, e.g., Dillon) requires a showing that Gonzalez's punishment is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.) The showing must demonstrate the punishment is grossly disproportionate in light of (1) the nature of the offense and the defendant's personal characteristics, (2) punishment for more serious offenses, and (3) punishment for similar offenses in other jurisdictions. (Ibid.)
The federal standard is virtually identical: "[A] court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." (Solem v. Helm (1983) 463 U.S. 277, 292 (Solem).) While Solem held "no one factor will be dispositive in a given case" (id. at p. 291, fn. 17), Justice Kennedy has suggested the latter two factors need only be considered if the defendant makes a threshold showing on the first factor that "comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." (Harmelin, supra, 501 U.S. at p. 1005 (conc. opn. of Kennedy, J.); but see In re Nunez (2009) 173 Cal.App.4th 709, 737 , fn. 8 [noting this threshold requirement may be difficult to assess in a vacuum, since it "excludes relevant evidence . . . in the judicial determination of contemporary standards of decency"].) In any event, Gonzalez does not seek judicial notice of or discuss comparative intra- or interjurisdictional punishment.
As before, SB 260 is relevant here in our analysis of Gonzalez's as-applied disproportionality challenge because his effective punishment does not include or even approach life in prison without the possibility of parole. We conclude that even if counsel had raised the challenge Gonzalez now faults him for omitting, there is no possibility on the record presented on appeal he would have received in the trial court a sentence with an earlier parole eligibility date than under SB 260. A direct perpetrator acting without any provocation, he personally pulled the trigger to commit first degree murder in a callous, senseless gang "turf" hit, tracking his defenseless victim down after an initial encounter. His offense with enhancements ordinarily would preclude parole eligibility for 50 years. Nothing in the record on appeal suggests he was an "unusually immature youth" (Dillon, supra, 34 Cal.3d at p. 488) or that other mitigating circumstances so diminished his culpability or showed such a likelihood of reform that SB 260's parole date was constitutionally insufficient. Gonzalez's actions over the next eight years after he murdered Cena demonstrated neither remorse, nor reform, but instead a hardening criminality in committing additional felonies, including assaulting a peace officer. His as-applied disproportionality and IAC appellate challenges therefore fail.
Gonzalez has not filed a habeas petition, and we express no opinion on the merits of such a petition. --------
The only question that remains is whether Gonzalez is entitled under Franklin to a supplemental hearing to allow him the opportunity to present information bearing on his future youth offender parole hearing. We conclude he is.
As discussed, Franklin found constitutional claims related to lengthy juvenile sentences mooted by the enactment of SB 260, especially its provisions codified in sections 3051 and 4801. (Franklin, supra, 63 Cal.4th at pp. 268, 280.) The former provides for the youthful offender parole hearing in the 25th year of incarceration (§ 3051, subd. (b)(3)), and the latter requires the parole board to "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and maturity of the prisoner . . . ." (§ 4801, subd. (c).)
In particular, the Supreme Court observed 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.' 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. [Citation.] In addition, section 3051, subdivision (f)(1) provides that any 'psychological evaluations and risk assessment instruments' used by the Board in assessing growth and maturity 'shall take into consideration . . . any subsequent growth and increased maturity of the individual.' Consideration of 'subsequent growth and increased maturity' implies the availability of information about the offender when he was a juvenile. [Citation.]" (Franklin, supra, 63 Cal.4th at pp. 283-284.)
Because these provisions "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 Board's consideration," the Supreme Court in Franklin remanded the matter to determine whether the defendant "was given an adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth" and, if not, to order such a hearing. (Franklin, supra, 63 Cal.4th at pp. 268-269, 283.)
Following transfer from the Supreme Court, Gonzalez has filed a supplemental brief requesting a Franklin hearing in the trial court based on the scant attention to his youth and related circumstances at the sentencing hearing, and the Attorney General has filed no responsive brief or opposition. Caballero was decided after Gonzalez's sentencing hearing, and Miller only a month before it. Counsel apparently either was unaware of Miller or did not recognize the opportunity it presented to argue against mandatory sentencing. In any event, neither defense counsel nor the prosecutor focused on Gonzalez's youth, introducing no additional evidence at the sentencing hearing, nor tailoring their arguments to Miller or more remotely to Graham, which involved nonhomicide offenses. The probation report noted Gonzalez's lengthy juvenile record, but presumably because of the mandatory sentence he faced, the parties made no effort to address Gonzalez's age or factors in his upbringing or juvenile development that may have been relevant to his culpability, the circumstances of the offense, his prospects for reform or subsequent growth and increased maturity as he grew older, or other factors identified in Franklin.
Because the record is largely devoid of information pertaining to these issues or other evidence "'about the individual before the crime,'" and that information is critical to the eventual youthful offender parole hearing, we remand the matter for a supplemental hearing consistent with the procedures outlined in Franklin. (Franklin, supra, 63 Cal.4th at pp. 283-284.) "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 Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors [citation] 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]." (Id. at p. 284.) As in Franklin, Gonzalez's two consecutive 25-year-to-life sentences remain valid because section 3051, subdivision (b)(3), has altered his parole eligibility date by operation of law. (Franklin, at p. 284.)
III
DISPOSITION
The judgment is affirmed. The matter is remanded for a supplemental hearing on the issues identified in Franklin and consistent with the procedures specified in that opinion. (Franklin, supra, 63 Cal.4th at pp. 283-284.)
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.