Opinion
A148286
11-29-2018
THE PEOPLE, Plaintiff and Respondent, v. JEREMY MILLBROOK, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H49349)
In December 2009, when he was 18 years old, defendant Jeremy Millbrook fired one shot at Sione Manoa while the two were arguing at a party. In addition to seriously injuring Manoa, the bullet struck the hand of Matthew Galvan, a friend of Manoa's who was trying to defuse the argument. In a prior trial, a jury convicted Millbrook of attempted murder of Manoa, assault with a firearm on Manoa, and assault with a firearm on Galvan and found true several enhancement allegations involving firearms and great bodily injury (GBI). This court reversed the conviction for attempted murder, finding prejudicial error in the trial court's failure to instruct on attempted voluntary manslaughter based on a sudden quarrel or heat of passion. (People v. Millbrook (2014) 222 Cal.App.4th 1122 (Millbrook I).)
After a retrial, a jury again convicted Millbrook of attempted murder. The trial court sentenced him to 35 years and four months to life in prison, including a term of 25 years to life based on the jury's finding that he personally and intentionally discharged a firearm causing GBI during the attempted murder. In this appeal, Millbrook raises seven primary arguments: (1) the Millbrook I disposition requires the attempted-murder conviction to be reduced to attempted voluntary manslaughter; (2) the trial court erred by not instructing the jury on accident while brandishing a firearm in self-defense; (3) the jury instruction on perfect self-defense was inadequate; (4) the instructions on the lesser included offense of attempted voluntary manslaughter impermissibly shifted the burden of proof; (5) the instructions on awareness of guilt violated due process; (6) the imposition of a $10,000 restitution fine violated his constitutional rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); and (7) a remand is required to address two sentencing issues. We agree that a remand is necessary for the trial court to determine, in light of Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620), whether to strike the firearm enhancements imposed for the attempted-murder and assault convictions. We also agree that a remand is necessary under People v. Franklin (2016) 63 Cal.4th 261 (Franklin) for the court to determine whether Millbrook had a sufficient opportunity to make a record for a future youth-offender parole hearing. Otherwise, we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The evidence presented in this trial differed in several respects from the evidence discussed in Millbrook I. Most significantly, some witnesses testified who did not testify in the previous trial, and vice versa, and Millbrook changed his account of the shooting. But unlike the resolution of the Millbrook I appeal, the resolution of this appeal does not require a detailed discussion of the underlying facts. As a result, our account of the shooting is brief, and we note discrepancies between the evidence presented in the two trials only when relevant to Millbrook's present claims.
On December 19, 2009, Fernanda Plascencia held a party at her San Leandro home to celebrate her birthday. Several of the guests, including 20-year-old Sione Manoa and 21-year-old Matthew Galvan, worked with Plascencia at a Hayward Target store. Also among the guests was 19-year-old Jennifer Diaz, a close friend of Plascencia's, and Millbrook, Diaz's fiancée. Most of the guests, including Manoa and Galvan, were drinking alcohol.
At some point during the party, Manoa and Diaz began arguing in the kitchen. Diaz was trying to end the party because Plascencia had become ill, but Manoa did not want to leave. Manoa and Diaz yelled and cursed at each other, and Manoa admitted that he called her a "bitch" and a "whore." Diaz testified that Manoa also threatened to "call one of his cousins, one of his sisters or whatever [to] come and beat [her] ass." She was frightened because "he had his hands balled up" and he appeared drunk. Around the same time, Manoa also argued with Bianca Velez, another friend of Plascencia and Diaz's. Evidence was presented that, as he did with Diaz, Manoa called Velez derogatory names and threatened her verbally and physically.
Millbrook soon confronted Manoa in the kitchen about Manoa's belligerent behavior toward the women, and the two men began arguing. Galvan stepped between them, facing Manoa, and placed his hand on Manoa's chest while he tried to defuse the argument. Manoa's hands were clenched, and Galvan was concerned that the fight would turn physical.
Diaz was also involved in the fight between the two men. As she argued with Manoa, witnesses heard him tell her, " '[Y]ou need to be quiet. I'm gonna get someone to beat your bitch ass up.' " He also told Millbrook, " 'You better check your bitch,' " and threatened to beat him up as well. Millbrook testified that Manoa seemed to be trying to get around Galvan to attack either him or Diaz.
Millbrook then pulled out a gun and fired it at Manoa. After the gunshot, the guests dispersed, and Millbrook and Diaz fled the party. They admitted to disposing of the gun and driving to Reno, where Millbrook was soon apprehended.
Manoa was shot in the chest, and it was stipulated in this trial that he suffered GBI. Galvan was shot in the hand. An unfired bullet and cartridge case and a cartridge case from a fired bullet were found in the kitchen. This evidence suggested that Millbrook's gun had a bullet in the chamber when he pulled it out, that he unnecessarily ejected that bullet by manually racking the gun's slide, and that he then fired one shot.
Millbrook's explanation of the shooting changed over time. Originally, Millbrook denied to the police that he had even been at Plascencia's party. In the first trial, he admitted that he shot Manoa but claimed he did so only after Manoa pulled a gun on him, which no other witness or evidence corroborated. (Millbrook I, supra, 222 Cal.App.4th at pp. 1133-1134.) Specifically, Millbrook testified that because he felt threatened "he instinctively raised the gun, intentionally aimed it at Manoa, closed his eyes, and purposely shot it once." (Id. at p. 1134.)
In this trial, Millbrook claimed that he pulled out the gun because he was angry and felt disrespected. He wanted Manoa to back down, so he racked the slide to show Manoa that he "meant business." Millbrook testified that the gun then accidentally discharged and that he never intended to fire it, much less shoot Manoa, explaining, "If I really wanted to kill him or shoot him, I would have just pulled the gun out and shot him immediately instead of cocking the gun. I would have kept shooting him if I really wanted to do that."
The jury convicted Millbrook of attempted murder and found true the allegation that he personally and intentionally discharged a firearm causing GBI to Manoa. As affirmed in Millbrook I, Millbrook also stood convicted of assault with a firearm on Manoa, assault with a firearm on Galvan, and, for both convictions, the accompanying enhancements of use of a firearm and infliction of GBI.
Millbrook was convicted of attempted murder under Penal Code sections 187, subdivision (a) and 664, subdivision (a). The enhancement allegation was found true under Penal Code section 12022.53, subdivision (d). All further statutory references are to the Penal Code.
The assault convictions were under section 245, subdivision (a)(2), and the enhancement allegations were found true under sections 12022.5, subdivision (a) (use of firearm) and 12022.7, subdivision (a) (GBI).
The trial court sentenced Millbrook to a total term of 35 years and four months to life, composed of consecutive terms of seven years for the attempted murder; 25 years to life for the personal and intentional discharge of a firearm causing GBI; one year for the assault with a firearm on Galvan; one year, four months for the use of a firearm during that assault; and one year for the infliction of GBI during that assault. Terms of three years for the assault with a firearm on Manoa, four years for the use of a firearm during that assault, and three years for the infliction of GBI during that assault were imposed and stayed.
II.
DISCUSSION
A. The Trial Court Properly Interpreted the Millbrook I Disposition.
Millbrook claims that his conviction for attempted murder must be reduced to attempted voluntary manslaughter because the People did not file a new charge of attempted murder as required by the Millbrook I disposition. We conclude that the disposition was ambiguous and correctly interpreted by the trial court to permit retrial of the attempted-murder charge without a new charge having to be filed.
1. Additional facts.
In relevant part, the Millbrook I disposition provided, "[Millbrook's] conviction for attempted murder is reversed. The People shall have 60 days from issuance of the remittitur to decide whether to retry him for attempted murder. If the People do not file a charge of attempted murder within that time frame, the judgment shall be modified to reflect Millbrook's conviction for attempted voluntary manslaughter instead of attempted murder and to strike the enhancement allegation under section 12022.53, subdivision (d)." (Millbrook I, supra, 222 Cal.App.4th at pp. 1151-1152.) The remittitur issued on March 11, 2014, and was filed in the trial court a week later. On April 10, Millbrook waived his right to a trial within 60 days, and the trial court and parties proceeded toward the retrial.
The new trial on the charge of attempted murder was eventually set for January 4, 2016. On that date, the trial court and parties discussed the history of the case, including Millbrook I, and they agreed the new trial would be on the attempted-murder charge and accompanying firearm and GBI allegations. The following day, Millbrook's trial counsel observed that the Millbrook I disposition appeared to require the filing of a new charge of attempted murder, which the People had not done. Counsel stated that he learned of the issue from a letter Millbrook received from his previous appellate counsel. Counsel argued that Millbrook I was "self executing" and since no new charge had been filed within 60 days, Millbrook's conviction was automatically reduced to attempted voluntary manslaughter and double jeopardy protections barred a new charge. The prosecutor responded that his understanding with Millbrook's trial counsel had always been that the attempted-murder charge would be retried.
The trial court denied the defense's request that the trial not go forward and that Millbrook be sentenced on a conviction of attempted voluntary manslaughter. The court gave two grounds for the denial. First, it pointed out that, although Millbrook I had provided that the People file a new charge of attempted murder, a new charge was not normally required because "when there's a reversal of a conviction following a jury trial, a new [i]nformation isn't filed," and the current information was "the operative document." Posing the issue as whether it should interpret the Millbrook I disposition "literally and really exalt form over substance, or . . . just look at this for what really happened," the court concluded that the intent was to require the prosecution to decide whether to retry the charge "in a timely fashion," which it had done, not to require the prosecution to file a new charging document.
Second, the trial court denied Millbrook's request as untimely because it "should have been made long ago if it was going to be made at all. This decision by the Court of Appeal has read exactly the way it reads now for almost the last two years, and it seems to me that to make this [request] on the day before we're going to start picking the jury is rather untimely." The court also noted that the 60-day period in the disposition coincided with the statutory speedy-trial period under section 1382, and Millbrook had waived his right to a speedy trial.
2. Discussion.
Millbrook argues that the trial court erred both in its interpretation of the Millbrook I disposition and in concluding that his request was untimely. Because we conclude that the court properly interpreted the disposition not to require the filing of another charge of attempted murder, we need not address the untimeliness issue.
An appellate court has the authority to "reverse, affirm, or modify a judgment appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances." (§ 1260.) " 'The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned.' " (Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859 (Ayyad).) In turn, the remittitur directions are contained in the appellate opinion's disposition, which "constitutes the rendition of the judgment of appeal, and is the part of the opinion where we, in popular parlance, deliver the goods." (Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 312.)
"The issues the trial court may address in the remand proceedings are therefore limited to those specified in the reviewing court's directions, and if the reviewing court does not direct the trial court to take a particular action or make a particular determination, the trial court is not authorized to do so." (Ayyad, supra, 210 Cal.App.4th at pp. 859-860.) Conversely, when the appellate "directions requir[e] specific proceedings on remand, those directions are binding on the trial court and must be followed. Any material variance from the directions is unauthorized and void." (Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982, italics omitted.) "[W]hether the trial court believed our decision was right or wrong, or had been impaired by subsequent decisions, it was bound to follow the remittitur," because "the rule requiring [it to do so] is jurisdictional." (People v. Dutra (2006) 145 Cal.App.4th 1359, 1367, italics omitted.)
Whether a trial court correctly interpreted the dispositional language of an appellate opinion is an issue of law we review de novo. (Ayyad, supra, 210 Cal.App.4th at p. 859.) "If a remittitur is ambiguous[,] the trial court can interpret it in light of the law and the appellate opinion to determine its duties." (People v. Dutra, supra, 145 Cal.App.4th at p. 1368, italics omitted.)
Millbrook I's direction that the People "file a charge of attempted murder" if they elected to retry that charge was ambiguous. "Absent a contrary direction from the appellate court, a general reversal of a criminal judgment is deemed to be an order for a new trial." (People v. Scott (2000) 85 Cal.App.4th 905, 921, italics omitted; § 1262.) Thus, had Millbrook I's disposition directed merely that the attempted-murder conviction was reversed and the People had 60 days to decide whether to retry Millbrook on that charge, there would have been no dispute that filing a new charge was unnecessary.
The last sentence of the disposition, however, directing modification of the judgment "[i]f the People [did] not file a charge of attempted murder" within 60 days of the remittitur's issuance, created ambiguity. Although the disposition reversed the attempted-murder conviction, it did not direct that the attempted-murder charge be dismissed. When a charge already exists and does not require any modification, it does not need to be filed again, and the meaning of the requirement that the People "file a charge of attempted murder" was therefore ambiguous. In other words, the disposition made clear that Millbrook would stand convicted of attempted voluntary manslaughter should the People decide not to retry him for attempted murder, but it was unclear what should occur if the People did elect to retry him.
Given this ambiguity, we conclude that the trial court properly concluded that the attempted-murder charge could be retried even though a new charge was not filed. No other portion of Millbrook I mentions the filing of a new charge or otherwise suggests an intent to require the People to do so. Millbrook I affirmed that substantial evidence supported the attempted-murder conviction, which meant that "the People [would] have the option of retrying Millbrook for attempted murder." (Millbrook I, supra, 222 Cal.App.4th at p. 1151.) And in discussing its disposition, Millbrook I cited a case in which our state Supreme Court reversed a judgment with directions that a murder conviction be reduced to involuntary manslaughter "[i]f the People do not bring defendant to trial within 60 days after the filing of the remittitur in the trial court." (People v. Edwards (1985) 39 Cal.3d 107, 118, italics added; Millbrook I, at p. 1151.) In light of the governing law and the opinion as a whole, the trial court reasonably interpreted Millbrook I's direction that the conviction be reduced if the People did not "file a charge of attempted murder" to mean that the conviction would be reduced if the People did not proceed to trial on the charge of attempted murder that already existed.
As a result of this conclusion, we also reject Millbrook's argument that the retrial of the attempted-murder charge violated double jeopardy, which is predicated on the idea that he "was effectively acquitted of attempted murder" once the People did not file a new charge within 60 days of the remittitur.
B. Millbrook's Claim that the Jury Should Have Been Instructed on Accident While Brandishing a Weapon in Self-defense Lacks Merit.
Millbrook contends that the trial court erred by not instructing the jury on the "defense of accident during the exercise of self-defense while brandishing a firearm." We are not persuaded.
During the conference on jury instructions, Millbrook requested that the jury be instructed on "accident or mistake as a complete defense." The trial court proposed "integrating" CALCRIM No. 3404, which addresses accident, with CALCRIM No. 251, which addresses the union of act and intent. The modified version of CALCRIM No. 251 given, to which Millbrook did not object, provided, "The crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty of attempted murder or attempted voluntary manslaughter, he must not only intentionally commit the prohibited act, but must do so with the intent to kill. [¶] That means that the defendant is not guilty of either attempted murder or attempted voluntary manslaughter if he acted without the intent to kill, but acted instead accidentally."
We begin by briefly reviewing the required intent for attempted murder and attempted voluntary manslaughter. "Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.) Unlike murder, which may be premised on a conscious disregard for life, " '[a]ttempted murder requires the specific intent to kill.' " (People v. Smith (2005) 37 Cal.4th 733, 739.) Similarly, unlike voluntary manslaughter, attempted voluntary manslaughter requires a specific intent to kill. (People v. Montes (2003) 112 Cal.App.4th 1543, 1546-1547.)
A person is not guilty of a crime if the act charged was committed "through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence." (§ 26.) "The accident defense amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime." (People v. Lara (1996) 44 Cal.App.4th 102, 110.) Thus, if Millbrook had accidentally fired the gun, he would be not guilty of both attempted murder and attempted voluntary manslaughter.
Relying on People v. Villanueva (2008) 169 Cal.App.4th 41 (Villanueva), Millbrook contends that the trial court should have instructed the jury that he was "not guilty of attempted murder or attempted voluntary manslaughter if [his] discharge of the firearm was the result of accident or misfortune" that occurred while he was engaged in the lawful act of "[b]randishing a firearm in self-defense or in defense of another." In Villanueva, the Second District Court of Appeal reversed a defendant's conviction for attempted murder because the trial court did not instruct the jury on self-defense or imperfect self-defense. (Id. at p. 44.) Although the defendant did not raise the issue, the Court of Appeal concluded that the jury should have also been instructed on accident in the course of committing a lawful act and on brandishing a weapon in self-defense as a lawful act (ibid.), which we will refer to as a Villanueva instruction.
We independently review claims of instructional error. (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759 (Ghebretensae).) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." ' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
When a defendant claims to have acted accidentally, the trial court has no duty to give an instruction on accident sua sponte. (People v. Anderson (2011) 51 Cal.4th 989, 998 (Anderson).) Instead, so long as the jury receives sufficient instructions on the required mental state for the charged crime, the court's obligation to instruct on accident "extend[s] no further than to provide an appropriate pinpoint instruction upon request by the defense." (Ibid.; see also People v. Jennings (2010) 50 Cal.4th 616, 674-675 (Jennings).) Millbrook acknowledges that under Anderson and Jennings, the trial court had no duty to instruct on accident sua sponte. As a result, he forfeited this claim by failing to request a Villanueva instruction below.
Moreover, even if the trial court had erred by not giving a Villanueva instruction, the omission was clearly harmless. In another attempted-murder case, the Fourth District Court of Appeal held that the failure to instruct on accident was not prejudicial because the true finding that the attempted murder was willful, deliberate, and premeditated established that the jury had rejected the defendant's claim that his discharge of a firearm was accidental. (People v. Jones (1991) 234 Cal.App.3d 1303, 1315-1316, disapproved of on other grounds by Anderson, supra, 51 Cal.4th at p. 998, fn. 3.) Likewise, by finding true the allegation that Millbrook personally and intentionally discharged a firearm in the course of committing attempted murder, the jury here necessarily rejected his explanation that the gun had gone off by accident.
Nor do we accept Millbrook's contention that the omission of a Villanueva instruction was prejudicial because it permitted "confusion on the part of the jury between the intentional act of brandishing and the unintentional act of the accidental discharge of the weapon." The accident instruction that was given informed the jury that for a person to be guilty of attempted murder or attempted voluntary manslaughter, the person "must not only intentionally commit the prohibited act, but must do so with the intent to kill," and that if Millbrook "acted . . . accidentally" without the intent to kill, he was not guilty. There is no reasonable likelihood that any juror would have understood the "prohibited act" to be Millbrook's brandishing of the gun as opposed to his firing of it. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 182.) Moreover, unlike the Villanueva jury, which received no instruction at all on the concept of self-defense, the jury here was instructed on both self-defense and imperfect self-defense. In short, we conclude there is no reasonable probability that Millbrook would have received a more favorable verdict had a Villanueva instruction been given (People v. Watson (1956) 46 Cal.2d 818, 836) and that the omission of such an instruction was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
C. Millbrook's Claims of Error Involving the Instruction on Perfect Self-defense Fail Because Any Such Errors Were Harmless.
Millbrook raises two claims involving CALCRIM No. 505, the instruction on perfect self-defense. First, he contends that the trial court had a duty to instruct sua sponte on perfect defense of another, using the optional language CALCRIM No. 505 provides for that purpose. Second, he argues that the instruction was legally erroneous because it prevented the jury from acquitting him unless it found that he was motivated only by a reasonable fear of imminent death or great bodily injury. We conclude that any errors were harmless.
1. Additional facts.
The jury was instructed under CALCRIM No. 505 that Millbrook was not guilty of attempted murder "if he attempted to kill another person in lawful self-defense," which required his reasonable belief "that he was in imminent danger of being killed or suffering [great] bodily injury," his reasonable belief "that the immediate use of deadly force was necessary to defend against that danger," and his use of "no more force than was reasonably necessary to defend against that danger." The instruction also provided, "The defendant must have believed there was imminent danger of death or great bodily injury to himself . . . [and] he must have acted only because of that belief." (Italics omitted.) Although CALCRIM No. 505 contains optional language on lawful defense of another, Millbrook did not request that such language be included, and he did not otherwise object to the wording of the instruction given.
The jury was also instructed under CALCRIM No. 604 that Millbrook was guilty only of attempted voluntary manslaughter if he "attempted to kill a person because he acted in imperfect self-defense or defense of another." (Italics omitted.) After explaining that "[t]he difference between complete self-defense and imperfect self-defense or defense of another depends on whether the defendant's belief in the need to use deadly force was reasonable," the instruction directed that imperfect self-defense or defense of another required, in addition to the act and intent elements of attempted murder, that Millbrook "believed he or someone else was in imminent danger of being killed or suffering great bodily injury," that he "believed that the immediate use of deadly force was necessary to defend against the danger," and that at least one of those "beliefs was unreasonable."
2. General legal standards.
For an attempted killing to be justified because it is committed in perfect self-defense or defense of another, "one must actually and reasonably believe in the necessity of defending oneself [or another] from imminent danger of death or great bodily injury." (People v. Randle (2005) 35 Cal.4th 987, 994, overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.) Imperfect self-defense or defense of another also requires an actual belief in the need to defend, but the belief is unreasonable. (Randle, at p. 990; In re Christian S. (1994) 7 Cal.4th 768, 773; see also People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.) Such an unreasonable belief negates malice and therefore reduces attempted murder to attempted voluntary manslaughter. (Randle, at pp. 995-997; Christian S., at p. 773; People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1408.) We independently review Millbrook's claims of instructional error. (Ghebretensae, supra, 222 Cal.App.4th at p. 759.)
3. The claim involving failure to instruct on perfect defense of another.
" ' "It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence" ' and ' "necessary for the jury's understanding of the case." ' [Citations.] It is also well settled that this duty to instruct extends to defenses 'if it appears . . . the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " (People v. Brooks (2017) 3 Cal.5th 1, 73.)
We need not decide whether there was sufficient evidence to support an instruction on perfect defense of another because any error in the trial court's omission of such an instruction was harmless. The omission of an instruction on a defense is not prejudicial if " 'the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.' " (People v. Wright (2006) 40 Cal.4th 81, 98-99.) Here, the jury was instructed on imperfect defense of another and would have convicted Millbrook of attempted voluntary manslaughter, not attempted murder, if it believed that he had an actual but unreasonable belief in imminent danger and the need to defend with deadly force. In some circumstances, the evidence can support an instruction on perfect self-defense or defense of another but not imperfect self-defense or defense of another. (See, e.g., People v. Duff (2014) 58 Cal.4th 527, 561-562 [if believed, defendant's claim that he "use[d] lethal force in response to being shot at repeatedly" required acquittal].) But Millbrook offers no theory under which the jury here could have found that he had an actual and reasonable belief in imminent danger and the need to defend with deadly force despite rejecting the claim that he had an actual but unreasonable belief in those things. Therefore, he has failed to demonstrate prejudice under any standard. (See Wright, at p. 99.)
4. The claim involving the requirement of acting "only" out of fear.
Under section 198, "[a] bare fear of the commission" of specified offenses "to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." Decisions interpreting the phrase "acted under the influence of such fears alone" have generally held that it means what it says: the party killing (or, in this case, attempting to kill) must act out of fear alone. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1045 [collecting cases].) This does not mean, however, " 'that a person who feels anger or even hatred toward the person killed, may never justifiably use deadly force in self-defense.' [Citation.] '[I]t would be unreasonable to require an absence of any feeling other than fear, before the homicide could be considered justifiable. . . . Instead, the law requires that the party killing act out of fear alone. . . . The party killing is not precluded from feeling anger or other emotions save and except fear; however, those other emotions cannot be causal factors in his [or her] decision to use deadly force.' " (Ibid.)
Millbrook argues that Nguyen left open the question whether a jury "should [be] instructed that acting based on mixed motives is permissible so long as a reasonable fear was the but-for cause of his [or her] decision to kill." (People v. Nguyen, supra, 61 Cal.4th at p. 1046.) We tend to agree with the Attorney General that, at best, Nguyen "raises . . . the possibility of giving a clarifying instruction where the evidence permits the inference that the defendant acted based on mixed emotions," which Millbrook would have had to request to preserve his appellate claim. (See People v. Lewis (2001) 25 Cal.4th 610, 666.) Ultimately, however, we need not resolve his claim on the merits because any error in this aspect of the instruction was also harmless.
As discussed above, the jury rejected the conclusion that Millbrook acted in imperfect self-defense by convicting him of attempted murder. CALCRIM No. 604, the instruction on attempted voluntary manslaughter based on imperfect self-defense, does not include any language similar to that in CALCRIM No. 505 that suggests a defendant must act out of fear alone. Millbrook claims that the challenged instruction was prejudicial because there was "evidence of multiple potential motivations for [his] actions in pulling out the gun and firing it," but he again does not explain how the jury could have found that he had an actual and reasonable fear even though it determined he had no actual but unreasonable fear. As a result, we conclude that there is no reasonable probability that he would have received a more favorable verdict had the jury been instructed as he suggests (People v. Watson, supra, 46 Cal.2d at p. 836) and that any error in the challenged portion of CALCRIM No. 505 was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
D. The Instructions on Attempted Voluntary Manslaughter Did Not Shift the Burden of Proof to Millbrook.
Next, Millbrook argues that CALCRIM No. 603, the instruction on attempted voluntary manslaughter based on heat of passion, and CALCRIM No. 604, the instruction on that crime based on imperfect self-defense or defense of another, impermissibly shifted the burden of proof to the defense to convince the jury "that the attempted homicide should be 'reduced' to attempted voluntary manslaughter." This claim fails.
Millbrook challenges the first sentences of these instructions, which provide that "[a]n attempted killing that would otherwise be attempted murder" is "reduced to attempted voluntary manslaughter if the defendant attempted to kill" in either the heat of passion (CALCRIM No. 603) or imperfect self-defense or defense of another (CALCRIM No. 604). He claims that the word "reduced" effectively created a presumption that he committed attempted murder, requiring him to prove otherwise.
We begin by agreeing with the Attorney General that Millbrook forfeited this claim by failing to object below. " 'A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " (Jennings, supra, 50 Cal.4th at p. 671.) Millbrook essentially acknowledges that the challenged instructions "correctly state the law of heat of passion and imperfect self-defense in the context of attempted voluntary manslaughter" and that his claim is that they nevertheless "pose the risk of confusing or misleading a jury." Such claims are forfeited unless they are raised in the trial court. (See id. at pp. 671-672; People v. Cole (2004) 33 Cal.4th 1158, 1211.)
In any case, the claim fails on the merits. " 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.] ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " (People v. Solomon (2010) 49 Cal.4th 792, 822.) Again, we review this claim of instructional error de novo. (Ghebretensae, supra, 222 Cal.App.4th at p. 759.)
Here, the jury was instructed under CALCRIM No. 220 that Millbrook was presumed to be innocent and that the prosecution had the burden to prove his guilt beyond a reasonable doubt. In addition, the challenged instructions themselves provided that "[t]he People ha[d] the burden of proving beyond a reasonable doubt that the defendant attempted to kill someone and was not acting as a result of a sudden quarrel or in the heat of passion" (CALCRIM No. 603) and "that the defendant was not acting in imperfect self-defense or defense of another" (CALCRIM No. 604). Both instructions also stated that if the prosecution "ha[d] not met this burden, [the jury could] not find the defendant guilty of attempted murder." Thus, read in context, the instructions did not impermissibly shift the burden to Millbrook to prove that he had acted in the heat of passion or in imperfect self-defense or defense of another, and there is no reasonable likelihood that the jury read interpreted them to do so.
In arguing otherwise, Millbrook attempts to analogize the challenged instructions to the instruction at issue in People v. Owens (1994) 27 Cal.App.4th 1155, a case decided by Division Five of this court. Owens addressed a former version of CALJIC No. 10.42.6, on continuous sexual abuse of a child, which stated in part, " 'The People have introduced evidence tending to prove that there are more than three acts of substantial sexual conduct or lewd and lascivious conduct upon which a conviction . . . may be based.' " (Owens, at p. 1158.) Although Division Five expressed concern that the phrase "tending to prove" permitted "the inference that the People have, in fact, established guilt," it concluded that the error did not require reversal because it was not "likely to have misled the jury" in light of the other instructions given on the presumption of innocence and reasonable doubt. (Id. at pp. 1158-1159.) Even assuming that the references in the instructions here to an attempted killing being "reduced" could permit a similar inference, Owens supports our conclusion that, in light of the other instructions given, the jury was not reasonably likely to have been misled.
Millbrook argues that CALCRIM Nos. 603 and 604 also "operated in another related, but analytically different, way to [his] disadvantage" because they "likely had the effect of setting an order of deliberations for the [jurors] in that if they were to presume the crime was attempted murder unless convinced otherwise, the logical starting point for their deliberations was on the question whether this was a case of attempted murder." He relies on People v. Kurtzman (1988) 46 Cal.3d 322, in which the Supreme Court held that although a jury cannot return a verdict on a lesser included offense before acquitting on a greater offense, it is permitted to deliberate on lesser offenses before reaching agreement on the greater offense. (Id. at p. 324.) The Court concluded that a trial court's instructions in response to the jury's expressions of being deadlocked were erroneous because they informed the jury that it could not consider a lesser included offense before reaching a resolution on greater offenses. (Id. at pp. 327-328, 336.)
In contrast, the trial court here made no such comments suggesting that the jury could not deliberate on a lesser included offense before returning a verdict on the greater offense. Nor is there anything about the references in CALCRIM Nos. 603 and 604 to an attempted killing being "reduced" to attempted voluntary manslaughter that would suggest to the jury that it could not even deliberate on that lesser offense before agreeing on the charge of attempted murder. As a result, this aspect of Millbrook's challenge to those two instructions fails as well.
E. The Instructions on False Statements and Flight Did Not Violate Millbrook's Due Process Rights.
Millbrook's final claim of instructional error is that the jury instructions on false statements and flight as evincing awareness of guilt "raise[d] an irrational permissive inference" in violation of his due process rights. We disagree.
The jury was instructed under CALCRIM No. 362 that "[i]f the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made such a statement, it is up to you to decide its meaning and importance. However, evidence that he made such a statement cannot prove guilt by itself." The jury was also instructed under CALCRIM No. 372 that "[i]f the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
Initially, the Attorney General argues that Millbrook forfeited this claim by failing to object to these instructions below. Because Millbrook contends that the alleged errors violated his due process rights, however, we will consider the claim on the merits. (See § 1259.)
Federal due process "require[s] a relationship between the permissively inferred fact"—here, awareness of guilt—"and the proven fact on which it depends"—here, a false or misleading statement or flight. (People v. Mendoza (2000) 24 Cal.4th 130, 180 (Mendoza).) "The standard for evaluating the relationship has been variously described as 'rational connection,' 'more likely than not,' and 'reasonable doubt,' " but these "seemingly disparate statements of the due process standard differ in language, not substance." (Ibid.) We independently review this claim. (Ghebretensae, supra, 222 Cal.App.4th at p. 759.)
As Millbrook recognizes, our state Supreme Court has rejected similar due process challenges to CALJIC No. 2.03 on false or misleading statements and CALJIC No. 2.52 on flight, the predecessors of the instructions at issue here. In People v. Crandell (1988) 46 Cal.3d 833 (Crandell), the Supreme Court rejected a due process challenge to CALJIC No. 2.03, holding that it "[did] not address the defendant's mental state at the time of the offense and [did] not direct or compel the drawing of impermissible inferences in regard thereto." (Crandell, at p. 871.) And in Mendoza, the Supreme Court held that an earlier version of CALJIC No. 2.52 did not violate due process by "permit[ting] a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt." (Mendoza, supra, 24 Cal.4th at pp. 179-180.)
Millbrook contends that the instructions at issue are distinguishable from "their CALJIC analogs" because they directed that certain conduct "may show he was aware of his guilt," whereas the CALJIC instructions state that the conduct "may show a 'consciousness of guilt.' " (Italics added.) He argues that "while an inference of consciousness of some form of wrongdoing may be logically made from flight or false statements, it is quite a different thing to infer that the statement suggests an acknowledgment of guilt of a particular criminal offense."
In fact, the version of CALJIC No. 2.52 considered in Mendoza, like the current version, does not refer to "consciousness of guilt." Instead, it provides that flight " 'is a fact which, if proved, may be considered by you in light of all other proved facts in deciding the question of [the defendant's] guilt or innocence.' " (Mendoza, supra, 24 Cal.4th at p. 179.)
It is true that in Crandell, the decision Millbrook cites for this principle, the Supreme Court distinguished between "the psychological and legal meanings of 'guilt,' " the first referring to " 'consciousness of some wrongdoing' " and the second referring to " 'consciousness of having committed the specific offense charged.' " (Crandell, supra, 46 Cal.3d at p. 871.) But the Court determined that no reasonable juror would have interpreted "consciousness of guilt" to refer to the legal meaning of guilt, because the challenged instructions—CALJIC No. 2.03 on false statements and CALJIC No. 2.06 on suppression of evidence—"advise[d] the jury to determine what significance, if any, should be given to evidence of consciousness of guilt, and caution[ed] that such evidence is not sufficient to establish guilt, thereby clearly implying that the evidence [was] not the equivalent of a confession and [was] to be evaluated with reason and common sense." (Crandell, at p. 871.) The instructions challenged here have similar features, and we fail to see how Crandell's logic is any less applicable to the concept of awareness of guilt.
Indeed, in upholding CALCRIM No. 372 on flight, the Fifth District Court of Appeal specifically rejected the argument that the phrase "aware of his guilt" is constitutionally distinguishable from "consciousness of guilt." (People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1158-1159.) The Fifth District concluded that despite this difference in terminology between CALJIC No. 2.52 and CALCRIM No. 372, Mendoza's holding was equally applicable to the latter instruction: "As the inference in Mendoza passes constitutional muster, so does the inference here." (Hernández Ríos, at p. 1159.) Millbrook states that he "contests" the Fifth District's holding, but he provides us with no persuasive reason to diverge from it.
Millbrook also claims that CALCRIM Nos. 362 and 372 "allowed the jurors to give the alleged false statement and flight evidence whatever weight they chose, even to make it the determinative factor in their deliberations, so long as they also considered at least one additional piece of evidence," which violated his "due process right to be convicted only upon proof of each element of the crime beyond a reasonable doubt." We disagree. In light of the instructions as a whole, including those on reasonable doubt and the charged crime, no reasonable juror would understand the challenged instructions to permit a guilty verdict even if evidence of certain elements of the crime was lacking. (See Crandell, supra, 46 Cal.3d at p. 871.)
We recognize that, as Millbrook points out, some federal appellate decisions have distinguished between instructions that direct a defendant's conduct can " 'indicat[e] a consciousness of guilt' " and instructions that " 'state that [the conduct] constitute[s] evidence of guilt.' " (Quoting Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 820, italics added, overruled on other grounds by Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 685.) But the line of cases on which Turner relied involved instructions that certain conduct could be considered as evidence of guilt without the limitation that the conduct could not prove guilt by itself. (See U.S. v. Perkins (9th Cir. 1991) 937 F.2d 1397, 1401-1402 & fn. 2; U.S. v. Boekelman (9th Cir. 1979) 594 F.2d 1238, 1240-1241 & fn. 1.) Indeed, the danger that a conviction was based on false statements alone was the primary concern in U.S. v. Di Stefano (2d Cir. 1977) 555 F.2d 1094, the other federal decision on which Millbrook focuses. (See id. at p. 1104 [limiting instructional-error holding to "facts of this case, where the evidence of guilt is weak"].) Thus, these decisions are distinguishable and would not compel a different result even if they were binding on us. The giving of CALCRIM Nos. 362 and 372 did not violate Millbrook's due-process rights.
F. The $10,000 Restitution Fine Was Lawfully Imposed.
Millbrook argues that the $10,000 restitution fine imposed under section 1202.4, subdivision (b) (section 1202.4(b)), the statutory maximum, violated his constitutional right to a jury trial under Apprendi. We reject this claim.
Section 1202.4(b) provides that "[i]n every case where a person is convicted of a crime, the [trial] court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." A restitution fine imposed under section 1202.4(b) is "a criminal penalty," not "a civil remedy." (People v. Hanson (2000) 23 Cal.4th 355, 362.)
Under the version of section 1202.4 in effect at the time of the shooting, for felonies the minimum fine was $200 and the maximum fine was $10,000. (Former § 1202.4(b)(1).) The fine is "set at the discretion of the [trial] court and commensurate with the seriousness of the offense." (§ 1202.4(b)(1).) In setting the amount of the fine above the statutory minimum, the court "shall consider any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in the crime." (§ 1202.4, subd. (d).)
In Apprendi, which applies to criminal fines (Southern Union Co. v. United States (2012) 567 U.S. 343, 346), the Supreme Court held that under the Sixth and Fourteenth Amendments, any fact "[o]ther than the fact of a prior conviction . . . that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at pp. 476-477, 490.) "[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," not "the maximum sentence a judge may impose after finding additional facts." (Blakely v. Washington (2004) 542 U.S. 296, 303-304, italics omitted.)
In People v. Kramis (2012) 209 Cal.App.4th 346 (Kramis), the Second District Court of Appeal held that Apprendi did not apply to the imposition of a $10,000 restitution fine under section 1202.4(b) because "the trial court exercise[d] its discretion within a statutory range." (Kramis, at p. 351.) As Kramis explained, " 'Apprendi distinguishes a "sentencing factor"—a "circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense"—from a "sentence enhancement"—"the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict" constituting "an increase beyond the maximum authorized statutory sentence." ' " (Ibid.) Thus, because "the fact of conviction" itself authorizes a fine under section 1202.4(b), and that statute permits a fine up to $10,000, a sentencing court can impose the statutory maximum without running afoul of Apprendi. (Kramis, at pp. 351-352.) Citing Kramis with approval, our state Supreme Court recently confirmed that the imposition of a restitution fine in excess of section 1204.2(b)'s minimum does not violate Apprendi or subsequent federal decisions interpreting it. (People v. Henriquez (2017) 4 Cal.5th 1, 47-48 (Henriquez).)
Millbrook, who submitted his opening and reply briefs before Henriquez was filed, claims that Kramis was incorrectly decided because "the statutory maximum under [former] section 1202.4 is $200," not $10,000, based on his view that section 1202.4 requires a trial court "to determine an ability to pay if it is to impose an amount above $200." We would reject his claim even if Henriquez did not otherwise compel us to do so. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Although a defendant's inability to pay is a relevant factor in determining whether to set the fine above the statutory minimum, the defendant has the burden of demonstrating an inability to pay the fine. (§ 1202.4, subd. (d).) Thus, Millbrook's construction of the statute is incorrect.
G. A Remand Is Required to Address Two Sentencing Issues.
Finally, Millbrook contends that a remand is required to permit the trial court to exercise its discretion whether to strike some or all of the firearm enhancements and, under Franklin, to allow him to make a record in anticipation of a future youthful-offender parole hearing. We accept the Attorney General's concession that a remand is appropriate for both purposes.
1. A remand is required in light of SB 620.
At the time of the April 2016 sentencing, the trial court had no discretion to strike the firearm enhancements imposed under section 12022.5, subdivision (a) or the one imposed under section 12022.53, subdivision (d). (Former §§ 12022.5, subd. (c), 12022.53, subd. (h).) In October 2017, the Legislature passed SB 620, which took effect on January 1, 2018. Now, both statutes provide that a trial 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." (§§ 12022.5, subd. (c), 12022.53, subd. (h).) "[A] statute which lessens the penalty for a crime gives rise to an inference the Legislature intended the change to apply to all nonfinal cases. . . . '[T]here is such an inference because the Legislature has determined that the former penalty provisions may have been too severe in some cases and that the sentencing judge should be given wider latitude in tailoring the sentence to fit the particular circumstances.' " (People v. Arredondo (2018) 21 Cal.App.5th 493, 507.) It is settled that the discretion conferred by SB 620 applies retroactively to nonfinal judgments. (People v. McVey (2018) 24 Cal.App.5th 405, 418; People v. McDaniels (2018) 22 Cal.App.5th 420, 424; Arredondo, at pp. 507-508.)
A remand for a sentencing court to exercise its discretion under SB 620 is required "unless the record shows that the . . . court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement." (McDaniels, supra, 22 Cal.App.5th at p. 425; accord People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.) Here, as the Attorney General agreed at oral argument, the trial court did not so indicate, since it offered no comments when imposing time for the firearm enhancements. As a result, the matter must be remanded for the court to exercise its discretion to determine whether to strike the firearm enhancement under section 12022.53, subdivision (d), as well as the firearm enhancements under section 12022.5, subdivision (a) accompanying the convictions for assault with a firearm.
We note that Millbrook received a term of 25 years to life, the bulk of his sentence, for the enhancement under section 12022.53, subdivision (d). And although his use of a gun was reckless and criminal, he was 18 years old at the time of shooting, and he entered the fray with Manoa in reaction to Manoa's belligerence towards Diaz and Velez. We are confident that the trial court will carefully consider whether the interest of justice will be vindicated by striking any of the firearm enhancements because their application is too severe in this case. (See People v. Arredondo, supra, 21 Cal.App.5th at p. 507.)
2. Millbrook should have the opportunity to create a record under Franklin.
Millbrook claims that a remand is also required for the limited purpose of permitting him to create a record of information relevant to a future youth-offender parole hearing. We agree, and the Attorney General concedes the point.
Effective January 1, 2014, Senate Bill No. 260 (2013-2014 Reg. Sess.) (SB 260) added various provisions, including section 3051, to create "a parole eligibility mechanism" for offenders who committed crimes at 25 years of age or younger. (People v. Perez (2016) 3 Cal.App.5th 612, 618; § 3051, subd. (a)(1).) The point at which a youthful offender becomes eligible for parole depends on the length of the longest term he or she receives for an offense or enhancement. (See § 3051, subds. (a)(2)(B), (b).) Here, because Millbrook was 18 years old at the time of his crimes, received 25 years to life as his longest term, and does not fall into any of the exceptions to early parole eligibility (see § 3051, subd. (h)), he "shall be eligible for release on parole . . . during his . . . 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (§ 3051, subd. (b)(3).)
Should the trial court strike the firearm enhancement under section 12022.53, subdivision (d), Millbrook will be eligible for parole "during his . . . 15th year of incarceration" under section 3051, subdivision (b)(1), which applies when the longest term is a determinate term.
In Franklin, the Supreme Court explained that in deciding whether to grant parole to a youthful offender at a hearing under section 3051, the decisionmaking of the Board of Parole Hearings (Board) "will be informed by youth-related factors, such as [the defendant's] cognitive ability, character, and social and family background at the time of the offense." (Franklin, supra, 63 Cal.4th at p. 269.) Moreover, "[i]n directing the 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 increased maturity of the prisoner' (§ 4801, subd. (c)), the statutes [enacted by SB 260] . . . 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." (Id. at p. 283.) The Court elaborated as follows:
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 [B]oard." 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 [or she] was a juvenile.(Franklin, at pp. 283-284.) Observing that it was unclear whether the defendant in that case "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," the Court determined that a limited remand was appropriate for the trial court to determine whether the defendant had received that opportunity and, if not, to allow him to submit additional evidence. (Id. at p. 284.)
We recognize that unlike the Franklin defendant, Millbrook was sentenced after the passage of SB 260. But Franklin was the first decision to establish clearly that defendants are entitled to an opportunity to make a sufficient record for a future youth-offender parole hearing, and it was not decided until a month after Millbrook's sentencing. Moreover, the record from his first trial is not before us, and the current appellate record contains little if any mitigating evidence of the sort that Franklin discussed and does not otherwise indicate that the parties or trial court contemplated the need to preserve a record in accordance with that decision. Thus, we conclude that on remand, the court should determine whether Millbrook had a sufficient opportunity to make such a record. If, as seems to be the case, he did not, the court should permit him to introduce evidence consistent with Franklin's guidelines. (See Franklin, supra, 63 Cal.4th at p. 284.)
III.
DISPOSITION
Millbrook's conviction for attempted murder is affirmed, but the case is remanded for the trial court to consider whether to strike or dismiss the firearm enhancements imposed under Penal Code sections 12022.5, subdivision (a) and 12022.53, subdivision (d). On remand, the court shall also address whether Millbrook had a sufficient opportunity to make a record for any future youth-offender parole hearing and, if not, permit him to do so.
/s/_________
Humes, P.J. We concur: /s/_________
Banke, J. /s/_________
Kelly, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.