Opinion
F074460
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. LAVANG SEE, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Galen N. Farris, Nicholas Fogg and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF171678E)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Galen N. Farris, Nicholas Fogg and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In 2009, our unpublished opinion in People v. See (Dec. 18, 2009, F055800), affirmed the judgment of appellant Lavang See, who had been convicted of murder (Pen. Code, § 187, subd. (a); count 1) and conspiracy to commit murder (§ 182, subd. (a)(1) & § 187; count 2). He was 16 years old when these crimes occurred. He was initially sentenced to life without the possibility of parole (LWOP), plus 25 years to life for a firearm enhancement.
All future statutory references are to the Penal Code unless otherwise noted.
However, following Miller v. Alabama (2012) 567 U.S. 460, appellant was resentenced. On September 21, 2016, his LWOP was reduced to an indeterminate term of 25 years to life (§ 187, subd. (a); count 1) with an additional 25 years to life for the firearm enhancement (§ 12022.53, subds. (d) & (e)(1)).
The sentence for conspiracy to commit murder (§§ 182, subd. (a)(1)/187; count 2) was stayed pursuant to section 654.
Appellant subsequently appealed again to this court, asserting his matter should be remanded for the trial court to exercise its new statutory discretion to strike or dismiss the imposed firearm enhancement under section 12022.53, subdivision (h). Respondent agreed with that request. Appellant also requested an opportunity to make a record of information relevant to his eventual youth offender parole eligibility hearing. (See § 3051, subds. (a)(1), (b)(3); People v. Franklin (2016) 63 Cal.4th 261 (Franklin).) Respondent opposed that request, arguing appellant already had such an opportunity during his last resentencing.
On August 29, 2018, in an unpublished opinion (People v. See (Aug. 29, 2018, F074460), we directed the trial court to exercise its new sentencing discretion regarding the firearm enhancement. (§ 12022.53, subd. (h).) We also directed the court to determine whether appellant was afforded an adequate opportunity to make a record of information relevant to his eventual youth offender parole eligibility hearing. If not, the parties would be allowed an adequate opportunity to make a record consistent with Franklin, supra, 63 Cal.4th at p. 284. We otherwise affirmed the judgment.
The day after we filed our unpublished opinion, appellant filed a petition for rehearing. For the first time, appellant raised a concern that Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57 or the Act), applies in this matter.
Unless otherwise specified, references to this enactment are to those portions of the Act applicable only to juvenile offenders.
On September 17, 2018, we vacated our opinion and granted rehearing to determine whether appellant is entitled to relief under the Act. The parties filed supplemental briefs. We now conclude that Proposition 57 applies retroactively to appellant "because his case is not yet final an appeal." (People v. Vela (2018) 21 Cal.App.5th 1099, 1102 (Vela).) As such, he is entitled to a transfer hearing before a juvenile court judge. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303-304 (Lara).)
BACKGROUND
The facts underlying appellant's convictions are largely immaterial to the issues raised in the present appeal. We provide a brief summary taken from our unpublished opinion in People v. See, supra, F055800.
On October 1, 2006, five Asian males approached the victim, Robert Trevino, who had been throwing a football with other neighborhood children on a residential street. Four of the males, including appellant, wore bandannas covering their faces from the nose down. One of the males, Chawa See, shot Trevino in the head from a short distance away. The five males fled. At trial, the prosecution's gang expert opined that appellant and the other males involved in this killing were Oriental Troops gang members. According to the expert, Trevino was a Norteño gang member and this killing was gang motivated.
Appellant was 16 years old when this crime occurred.
DISCUSSION
I. We Remand This Matter For The Trial Court To Exercise Its Discretion Regarding The Firearm Enhancement.
At the time of appellant's 2016 resentencing in this matter, the trial court was required to impose an additional prison sentence for the firearm enhancement found true under section 12022.53. (Former § 12022.53, subds. (a)(1), (d), (e)(1)(A) & (B), & (h).) On October 11, 2017, however, the Governor approved Senate Bill No. 620 (Stats. 2017, ch. 682), which amended, in part, section 12022.53. Under the amendment, a trial court now has discretion to strike or dismiss this firearm enhancement. (§ 12022.53, subd. (h).) Via supplemental briefing, the parties agree, as do we, that this amendment applies retroactively to appellant because his case is not yet final. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)
The parties also agree, as do we, that remand is appropriate so the trial court may exercise its discretion. (See People v. Woods, supra, 19 Cal.App.5th at p. 1091.) Accordingly, we remand this matter for that limited issue.
We take no position regarding how the trial court should exercise its discretion.
II. A Remand Is Appropriate To Ensure Appellant Had A Meaningful Opportunity To Present Evidence Relevant To His Eventual Youth Offender Parole Eligibility Hearing.
Although the parties agree that a remand is appropriate for the trial court to exercise its discretion regarding the firearm enhancement, they disagree regarding appellant's second issue.
Appellant requests a remand so that he may have an opportunity to make a record of mitigating evidence tied to his youth. Such evidence will be relevant to his future parole eligibility hearing pursuant to section 3051 and Franklin, supra, 63 Cal.4th 261. In the alternative, he argues he received ineffective assistance of counsel should we decide he already had a sufficient opportunity to make such a record. In contrast, respondent opposes a remand for this issue, claiming appellant already had an opportunity to present this information at his September 2016 resentencing. Respondent asserts that appellant cannot establish ineffective assistance of counsel. In the interests of justice, we believe a remand is appropriate to protect appellant's rights.
Section 3051, enacted in 2013 (Stats. 2013, ch. 312, § 4), requires the Board of Parole Hearings (the Board) to conduct youth offender parole hearings for eligible offenders. (§ 3051, subd. (a)(1).) The statute specifies that the Board is to assess a youth offender's "growth and maturity" in determining whether to grant parole. (Id., subd. (f)(1); see § 4801, subd. (c).) Appellant, who was 16 years old when he committed these offenses, is eligible for a youth offender parole hearing during his 25th year of incarceration. (§ 3051, subd. (b)(3).)
Franklin was decided about four months before appellant's September 2016 resentencing in this matter. In Franklin, our Supreme Court explained that the new statutory parole scheme for youth offenders "contemplate[s] 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." (Franklin, supra, 63 Cal.4th at p. 283; see § 4801, subd. (c).) This information can come from family members, friends, school personnel, faith leaders and people from community-based organizations who have knowledge about the defendant before the crime. (§ 3051, subd. (f)(2); see also Franklin, supra, 63 Cal.4th at p. 283.) Gathering this information is usually more easily done at or near the time of the juvenile offender's offense rather than decades later because of fading memories, deaths, lost or destroyed records, or witnesses relocating. (Franklin, supra, at pp. 283-284.) At the time of the parole eligibility hearing, the Board is to consider any "'subsequent growth and increased maturity'" about the juvenile offender. (Id. at p. 284.)
In this case, section 3051 was in effect when appellant was resentenced in September 2016 and Franklin had already been decided. As respondent concedes, however, no mention of Franklin or appellant's eventual youth offender parole hearing appears in this appellate record. Further, as appellant notes, the only contested issue at his resentencing was whether 50 years to life was an appropriate sentence. While the probation report discusses some of appellant's characteristics and circumstances at the time of the offense, it makes no mention of Franklin or appellant's future parole eligibility hearing.
Although appellant was resentenced about four months after Franklin was issued, it is not clear that appellant had "sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) Neither the trial court nor the parties made any reference to such a hearing, and it was not discussed whether appellant had any additional evidence that should be preserved for later review. In the interest of justice, we will direct the trial court to determine whether appellant had an adequate opportunity to make an accurate record of the information contemplated in sections 3051 and 4801, and Franklin, supra, 63 Cal.4th at pp. 283-284.
As our Supreme Court explained in Franklin, if the trial court determines that appellant did not have sufficient opportunity to make an accurate record of this information, "then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence." (Franklin, supra, 63 Cal.4th at p. 284.) Appellant may place on the record any documents, evaluations or testimony (subject to cross-examination) that may be relevant to his eventual Board hearing. (Ibid.) The prosecution may also put on the record any evidence that demonstrates appellant's "culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors." (Ibid.) The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of appellant's "characteristics and circumstances at the time of the offense" so that the Board may later determine whether appellant is eligible for parole. (Ibid.)
Based on this record, and to ensure that justice is done, we remand this matter so the trial court can determine whether appellant was afforded an adequate opportunity to make a record of information that will be relevant to his eventual youth offender parole eligibility hearing. If the court determines appellant did not have such an opportunity, it shall allow the parties an adequate opportunity to make such a record consistent with Franklin, supra, 63 Cal.4th at p. 284. III. Because Proposition 57 Applies To Appellant's Case, Which Is Not Yet Final, He Is Entitled To A Transfer Hearing.
We take no position regarding how the trial court should decide this issue.
Because we remand this matter, we decline to address appellant's alternative arguments, including his claim of ineffective assistance of counsel.
Voters approved Proposition 57 on November 8, 2016. (People v. Barboza (2018) 21 Cal.App.5th 1315, 1318.) The Act now requires "'a judge, not a prosecutor, to decide whether juveniles should be tried in adult court' [citations]." (Barboza, supra, at p. 1318.) Although appellant was 16 years old when he committed these offenses, the district attorney did not file the charges in juvenile court. Instead, in October 2006, charges were filed directly in "adult" or criminal court. At that time, the district attorney was permitted to do so under former Welfare and Institutions Code section 707, subdivision (d)(1).
While this appeal was pending, Proposition 57 became effective. Among other provisions, Proposition 57 amended the Welfare and Institutions Code to eliminate direct filing by prosecutors. (Vela, supra, 21 Cal.App.5th at p. 1103.) Certain categories of minors, which would include appellant, can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated. (Welf. & Inst. Code, § 707, subd. (a).)
In Lara, supra, 4 Cal.5th 299, our Supreme Court held that Proposition 57 retroactively applies to all juveniles charged directly in adult court whose judgment was not final at the time the Act was enacted. (Lara, supra, at pp. 303-304.) Although Proposition 57 does not reduce the punishment for a crime, it reduces the possible punishment for a class of persons, namely juveniles. (Id. at p. 303.) "The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment." (Ibid.)
After we filed our unpublished opinion on August 29, 2018, appellant filed a petition for rehearing. In raising this issue for the first time, he contends that Proposition 57 applies retroactively to his case. He seeks a transfer hearing in the juvenile court.
Ordinarily, this court will not address an issue that has been raised for the first time in a petition for rehearing. (See People v. Holford (2012) 203 Cal.App.4th 155, 159, fn. 2.) However, for good cause we may do so. (Alameda County Management Employees Assn. v. Superior Court (2011) 195 Cal.App.4th 325, 338, fn. 10.) In the interest of justice, and based on a showing of good cause, we granted the petition.
Respondent opposes appellant's request for a transfer hearing. Respondent argues that Proposition 57 does not apply, contending that appellant's criminal convictions are final. To support that argument, respondent notes that, in 2009, this court affirmed appellant's judgment. (People v. See, supra, F055800.) In March 2010, the California Supreme Court denied appellant's petition for review. In November 2010, the United States Supreme Court denied appellant's petition for writ of certiorari. According to respondent, appellant's writ of habeas corpus (filed in 2016 and seeking resentencing pursuant to Miller v. Alabama, supra, 567 U.S. 460) "did not disturb the finality of [appellant's] underlying criminal convictions." Respondent asserts we should reject appellant's claim that Proposition 57 retroactively applies in this case. We disagree.
Appellant was resentenced in 2016 and he filed a timely appeal to this court. Imposition of the new sentence in 2016 constituted the judgment. (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 [a criminal judgment is rendered when the trial court orally pronounces sentence]; People v. McKenzie (2018) 25 Cal.App.5th 1207, 1213 [the sentence is the judgment in a criminal case].) A judgment is deemed final when "the courts can no longer provide a remedy to a defendant on direct review." (In re Spencer (1965) 63 Cal.2d 400, 405.)
Because of the timely appeal following resentencing, we reject respondent's claim that appellant's judgment is final, precluding retroactive application of Proposition 57. To the contrary, courts can provide him with a remedy on direct appeal. Because appellant's case is not yet final, Proposition 57 applies in this matter. (Lara, supra, 4 Cal.5th at pp. 303-304.) He is entitled to a transfer hearing before a juvenile court judge. (People v. Vela, supra, 21 Cal.App.5th at p. 1102.)
We likewise reject respondent's suggestion that this court lacks appellate jurisdiction in this situation. Respondent's cited authority for that proposition, People v. Rosas (2010) 191 Cal.App.4th 107 (Rosas), is inapplicable. In Rosas, the appellate court held that restitution and parole revocation fines were not severable from the sentencing issues that had been sent back to the trial court after an earlier appeal. (Id. at p. 117.) Rosas does not support respondent's claim that appellant's criminal convictions are final and "likely even outside" this court's jurisdiction.
Respondent argues that the juvenile court lacks jurisdiction over appellant because he is now older than 25 years of age. We need not address that argument because, as our high court has made clear, "Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, supra, 4 Cal.5th at p. 304 (emphasis added).)
Vela, supra, 21 Cal.App.5th at p. 1113, has established the procedure in this situation. We will conditionally reverse appellant's conviction and sentence. We will order the juvenile court to conduct a juvenile transfer hearing pursuant to Welfare and Institutions Code section 707. When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer appellant's cause to a court of criminal jurisdiction. (Welf. & Inst. Code, § 707, subd. (a)(1).) If the juvenile court finds that it would not have transferred appellant to a court of criminal jurisdiction, then it shall treat appellant's convictions as juvenile adjudications and impose an appropriate disposition within its discretion. (Vela, supra, 21 Cal.App.5th at p. 1113.)
However, if, after conducting the juvenile transfer hearing, the court determines that it would have transferred appellant to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then appellant's convictions are to be reinstated. (Welf. & Inst. Code, § 707.1, subd. (a).)
DISPOSITION
Appellant's convictions and sentence are conditionally reversed, and the matter is remanded to the juvenile court with directions to conduct a new juvenile fitness, or transfer, hearing. (Welf. & Inst. Code, § 707, subd. (a); Lara, supra, 4 Cal.5th at p. 309.) When conducting said hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a petition in the juvenile court and then moved to transfer appellant's case to a court of criminal (adult) jurisdiction under the applicable laws as amended by Proposition 57.
If, after conducting the juvenile transfer hearing, the juvenile court finds it would not have transferred appellant to a court of criminal (adult) jurisdiction, it shall treat appellant's convictions as juvenile adjudications; exercise its discretion under section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018) to impose or strike the firearm enhancement; and impose an appropriate disposition.
If, after conducting the juvenile transfer hearing, the juvenile court determines it would have transferred appellant to a court of criminal (adult) jurisdiction because he is not a fit and proper subject to be dealt with under the juvenile court law, then appellant's convictions and sentence shall be reinstated as of that date. (Welf. & Inst. Code, § 707.1, subd. (a).) The trial court shall (1) afford both appellant and the People an adequate opportunity in accordance with People v. Franklin, supra, 63 Cal.4th 261, to make a record of information that will be relevant to the parole authority as it fulfills its statutory obligations under sections 3051 and 4801; (2) exercise its discretion under section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018) to impose or strike the firearm enhancement; and (3) if appropriate following exercise of that discretion, resentence appellant accordingly. Appellant's convictions shall then stand affirmed. If the trial court resentences appellant, it shall cause to be prepared an amended abstract of judgment that reflects the new sentence, and shall cause a certified copy of same to be transmitted to the appropriate authorities.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
SMITH, J.