Opinion
C079531
08-20-2018
THE PEOPLE, Plaintiff and Respondent, v. KENNETH CHARLES STRINGFELLOW, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F1300929)
B.D. was 21 months old when he died from multiple blunt force trauma injuries after being left in the care of his mother's boyfriend, defendant Kenneth Stringfellow. A jury convicted defendant of second degree murder and assault on a child under the age of eight by means of force likely to cause great bodily injury resulting in death. The trial court sentenced defendant to 25 years to life in prison.
Defendant now contends (1) the trial court erred in failing to instruct on involuntary manslaughter based on an unlawful act, (2) insufficient evidence supports the jury finding of malice, and (3) insufficient evidence supports the jury finding that he was aware of circumstances that a reasonable person would realize would likely result in great bodily injury. After the case was fully briefed, we granted defendant's request to submit a supplemental brief on whether People v. Franklin (2016) 63 Cal.4th 261 (Franklin) requires a limited remand to give him an opportunity to make a record that may be helpful at a future youth offender parole hearing.
We will affirm the judgment but remand the matter so that the trial court may follow the procedure outlined in Franklin, supra, 63 Cal.4th 261.
BACKGROUND
D. Sullivan gave birth to B.D. in 2012 and began dating defendant the following year. She and B.D. moved into defendant's apartment.
Defendant told Sullivan not to "baby" B.D. and tried to convince her to physically discipline B.D. Sullivan's cousin saw at least two fading bruises on B.D.'s upper leg, and Sullivan's mother talked with Sullivan about a bruise on the outside of B.D.'s thigh. Sullivan had seen bruises on B.D. after defendant spanked him and also saw bite marks on B.D. She argued with defendant and told him not to discipline B.D. like that.
On December 11, 2013, Sullivan departed in the early afternoon to go Christmas shopping with a friend, leaving defendant to care for B.D. During the afternoon, defendant informed Sullivan that B.D. tripped over a toy and "nailed his face and forehead pretty good" but he was okay.
Defendant's downstairs neighbor N. Fitzgerald heard a baby crying in defendant's apartment later that day. Fitzgerald heard a loud "semisolid thud" coming from defendant's apartment. He likened the sound to someone dropping a watermelon on the floor. He did not hear any other loud noises or crying from defendant's apartment after that.
That evening, defendant sent Sullivan a text asking, "You're still not on your way home?" Six minutes later, defendant texted Sullivan, "K. Well, [B.D.]'s puking, so yeah, whenever you can." When Sullivan returned home, she saw vomit in the apartment hallway. Defendant and B.D. were asleep on the bed in B.D.'s bedroom. Sullivan saw bruises on B.D.'s lip and forehead.
Sullivan's account of B.D.'s condition when she first got home varied. She testified at trial that B.D. did not wake up when she got home. But she reported to Dr. Eric Saxman, the doctor who treated B.D. at Plumas District Hospital, that B.D. acted as if he was drunk and had irregular respirations. In contrast, she told Plumas County Sheriff's Deputy Jacob Vickrey that B.D. was not acting abnormally when she first returned home. She told Plumas County Sheriff's Detectives Bill Elliott and Chris Hendrickson that B.D. was asleep and looked fine when she got home. She said when she talked with defendant, B.D. "got up for a second, he looked up and he laid back down, he was fine." Sullivan testified that at the time she spoke with the deputy and detectives she had no reason to believe defendant had hurt B.D. and she wanted to protect defendant.
Sullivan testified at trial that she heard B.D. stirring around midnight. Defendant went into the bedroom and gave B.D. his sippy cup. B.D. seemed delirious and made a deep sound in his throat. Sullivan told defendant she did not like the sound B.D. was making and they should take him to the hospital. Defendant said no, declaring that B.D. was fine. But he moved B.D. into defendant and Sullivan's bedroom at Sullivan's request. B.D.'s condition worsened. According to defendant, B.D. started turning pale and changing color. He took one last deep, gasping breath and then stopped breathing. B.D. was unresponsive. Defendant performed CPR and they called 911. B.D. had no pulse when he arrived at the hospital.
A CT scan showed bleeding in B.D.'s brain, swelling of the brain and retinal hemorrhaging. B.D. had blunt traumatic injuries from the top of his head to his foot. The bruise on his forehead extended to the top of his head and caused extensive deep scalp and bone surface bleeding. His brain showed evidence of severe acute traumatic injury. He had injuries to the brain tissue, deep scalp area under the skin surface of the skull, backs of both eyes and spinal cord. The bruising on the back of his head included repetitive patterning in different locations and orientations. There was also a rectangular shaped bruise on the back of his head. B.D. also had multiple bite marks, including several on his buttocks, and he had petechia (small pinpoint bruises) on his penis.
Dr. Ellen Clark performed B.D.'s autopsy. She opined that B.D. died due to multiple blunt force trauma injuries. She said B.D. had impact injuries and probably also shearing or rotational acceleration injury caused by shaking. Dr. Clark and the People's expert on anatomic, forensic and neuropathology, Dr. Bennet Omalu, testified that the biting and bruising on B.D.'s body could have contributed to B.D.'s death. Defendant's expert, Dr. Judy Melinek, opined that the cause of death was blunt force trauma of the head and neck, not multiple traumatic injuries, but agreed that B.D. suffered acute traumatic brain injury from impact or shaking and acute traumatic spinal injury. The prosecution and defense experts agreed B.D.'s injuries were inflicted and not accidental.
The People played a number of recorded jailhouse calls to or from defendant for the jury. Defendant admitted biting and spanking B.D. but denied causing B.D.'s head injury. He said he did not feel bad about biting B.D. He said he did not like it when B.D. whined. He said he would claim it was an accident and if they did not buy that story then he would argue that Sullivan was responsible.
The jury convicted defendant of murder in the second degree (Pen. Code, § 187, subd. (a) -- count I) and assault on a child under the age of eight by means of force likely to cause great bodily injury resulting in death (§ 273ab, subd. (a) -- count II). It found true the allegation that defendant personally inflicted great bodily injury upon B.D. in violation of sections 12022.7, subdivision (a) and 1203.075, subdivision (a).
Undesignated statutory references are to the Penal Code.
The trial court denied probation, sentenced defendant to 25 years to life on count II and 15 years to life on count I, and stayed the sentence on count I pursuant to section 654.
DISCUSSION
I
Although the trial court instructed the jury on involuntary manslaughter based on a lawful act, defendant argues the trial court should have instructed on involuntary manslaughter based on an unlawful act.
In discussing the prosecutor's request for an instruction on involuntary manslaughter, the trial court said there were two theories of that crime: involuntary manslaughter in the commission of a misdemeanor and involuntary manslaughter in the commission of a lawful act. The trial court thought involuntary manslaughter based on a lawful act applied because defendant was disciplining B.D. The trial court asked counsel whether involuntary manslaughter in the commission of a misdemeanor applied as well and what the misdemeanor would be. The record contains no further discussion about the involuntary manslaughter instruction.
Involuntary manslaughter is a lesser included offense of murder. (People v. Thomas (2012) 53 Cal.4th 771, 813.) The distinguishing feature between the two crimes is that unlike manslaughter, murder requires a finding of malice. (People v. Rios (2000) 23 Cal.4th 450, 460; § 187, subd. (a).) Involuntary manslaughter is the unlawful killing of a human being without malice in the commission of (1) a misdemeanor that is dangerous under the circumstances, (2) a lawful act which might produce death, in an unlawful manner or without due caution and circumspection, or (3) a felony that is not inherently dangerous, without due caution and circumspection. (§ 192, subd. (b); People v. Cox (2000) 23 Cal.4th 665, 675-676; People v. Brothers (2015) 236 Cal.App.4th 24, 31, 34-35 (Brothers); People v. Butler (2010) 187 Cal.App.4th 998, 1007 (Butler).)
Malice may be express or implied. (§ 188.) Malice is express when the defendant harbored an intent to kill. (People v. Beltran (2013) 56 Cal.4th 935, 941-942 (Beltran).) It is implied when the defendant willfully commits an act, the natural and probable consequences of which are dangerous to human life, and the defendant knowingly acts with conscious disregard for the danger to life that his or her act poses. (Ibid.)
The mens rea for involuntary manslaughter is criminal negligence. (Butler, supra, 187 Cal.App.4th at pp. 1006-1008.) " ' "[C]riminal negligence' " exists when the defendant engages in conduct that is ' "aggravated, culpable, gross, or reckless" '; i.e., conduct that is ' "such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life, or in other words, a disregard of human life or an indifference to consequences." ' [Citation.]" (Id. at p. 1008.) Criminal negligence is subject to an objective standard: whether a reasonable person in defendant's position would have been aware that the defendant's act would cause a high degree of risk of death or great bodily harm. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1141; Butler, supra, 187 Cal.App.4th at p. 1008.) In contrast, implied malice requires a finding that the defendant actually appreciated the risk of harm. (Mehserle, supra, 206 Cal.App.4th at pp. 1141-1142; Butler, supra, 187 Cal.App.4th at p. 1008.)
A trial court has an obligation to sua sponte instruct on every lesser included offense that is supported by substantial evidence, but no obligation to instruct on theories that have no such evidentiary support. (People v. Breverman (1998) 19 Cal.4th 142, 154-155, 160, 162 (Breverman).) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed. [Citations.] [¶] In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.]" (Id. at pp. 162-163, italics omitted.) Conversely, there is no obligation to instruct sua sponte when there is no evidence that the offense was less than that charged. (Id. at p. 154.) The instructional duty exists regardless of the parties' requests, objections, tactics or theories at trial. (Id. at pp. 154-155, 160, 162-163.) We review the trial court's failure to instruct on a lesser included offense de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 584.)
People v. Evers (1992) 10 Cal.App.4th 588 is instructive to our inquiry. In that case, two-year old Michael died from injuries to the head caused by a substantial impact, equivalent at least to a 10-foot drop, likely from violent shaking or slamming him down on a soft surface. (Id. at p. 593) He also had injuries to his abdomen which typically resulted from being stepped or stomped on or struck with a fist " 'with most of the weight of the adult behind that force.' " (Ibid.) Convicted of second degree murder and child endangerment, the defendant argued on appeal that the trial court should have instructed the jury on involuntary manslaughter because Michael's death was the result of the defendant's inexperience as a parent and not his conscious disregard of the risk to Michael's life. (Id. at pp. 592, 595-597.)
The Court of Appeal concluded that the type of severe physical abuse in Evers constituted felony child abuse which was a noninherently dangerous felony and the trial court must instruct on involuntary manslaughter if there was substantial evidence that the defendant acted with criminal negligence. (Evers, supra, 10 Cal.App.4th at p. 596.) But the appellate court found nothing in the record indicating that the defendant was unaware of the risk his actions caused to Michael's life. (Id. at p. 597.) Considering the severity of Michael's injuries, the appellate court concluded the only possible inference that could be drawn from the evidence was that the defendant knew his actions would likely cause serious injury or death to Michael. (Ibid.) Accordingly, it held that the trial court was not required to instruct on involuntary manslaughter. (Id. at p. 598.) We reach the same conclusion in this case.
Defendant admitted spanking "the crap out of [B.D. that] day." B.D. died from multiple blunt force trauma injuries. He was repeatedly bitten, struck, shaken and/or slammed. There were at least 12 to 15 blows to his body and at least 10 injury episodes to his head.
B.D. had bruises on the top, back and side of the head, forehead, left eyelid, both sides of the face, right cheek, the edges of both ears, the back of one ear, lips, chin, right shoulder, chest area, the left side of the rib cage, both arms, left elbow, back of the hands, inner thighs, back, buttocks and the top of the left foot. Dr. Catherine Wagoner opined that the type of bruising on the back of B.D.'s ear was usually caused by blows, smacks or slaps, some of the marks on B.D.'s buttocks could be caused by a hand, and the size and shape of the bruises on B.D.'s forehead and lower back were commonly caused by blows with a fist or smacks with a hand and not by a fall into an object like a dresser.
Dr. James Crawford-Jakubiak described the impact injuries to B.D.'s head as "bordering on horrific." B.D. suffered severe acute traumatic brain injury from impact or shaking. There was hemorrhaging through his scalp and skull and in his brain. He also had retinal hemorrhages, areas of retinal detachment, bleeding around the optic nerves and traumatic injury to his spinal cord. Dr. Clark opined that the injury to B.D.'s eyes was caused by rapid acceleration or deceleration or twisting of the head or impact, such as very forcefully slamming a child against something. B.D.'s head injuries would have caused him to vomit and "look miserable."
In addition, defendant admitted biting B.D. Dr. Crawford-Jakubiak opined that biting was a very aggressive act and the person who was biting the child knew "in real time" that he or she was hurting the child. B.D. had bite marks on his face, both arms, thigh, waist and buttocks. The bites would have been painful. There were at least 10 bite marks on his buttocks. The bite marks on his right buttocks dissected the full thickness of the fatty tissue and was about three quarters of an inch to the muscle surface under the skin. The injuries to his penis, which also could have been caused by biting, also went deep into the tissue. Extreme force was required to create the injuries to B.D.'s penis. Defendant knew he had hurt B.D. with the biting. B.D.'s injuries are consistent with inflicted physical abuse.
Dr. Wagoner opined that B.D.'s injuries were "far beyond anything that would hopefully pass anyone's notice of normal." There was no evidence that defendant was unaware of the risk to B.D.'s life that his violent acts posed. Considering B.D.'s young age and size, the medical testimony about his injuries and defendant's statements, no rational jury could conclude that defendant inflicted the life-endangering injuries B.D. suffered without being aware that his actions posed a risk of danger to B.D.'s life. (Evers, supra, 10 Cal.App.4th at pp. 597-598; see Brothers, supra, 236 Cal.App.4th at pp. 34-35 [no sua sponte duty to instruct on involuntary manslaughter where the defendant deliberately engaged in aggravated assault and there was no material issue presented as to whether the defendant actually appreciated the danger to life her conduct posed].) Defendant fails to demonstrate instructional error because there is no substantial evidence from which a reasonable jury could conclude that defendant acted without malice and is, thus, guilty of involuntary manslaughter but not murder.
But even if the trial court had erred in not instructing the jury on a different form of involuntary manslaughter, the failure to instruct sua sponte on a lesser included offense in a noncapital case does not require reversal unless an examination of the entire record, including the evidence, establishes a reasonable probability that the defendant would have obtained a more favorable outcome had the error not occurred. (Breverman, supra, 19 Cal.4th at pp. 165, 178 [People v. Watson (1956) 46 Cal.2d 818 standard of review applies].) On review, we focus "not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (Breverman, supra, 19 Cal.4th at p. 177, italics omitted.)
The trial court instructed the jury on first and second degree murder, excusable homicide (accident) and involuntary manslaughter. The trial court instructed that an unlawful killing with malice is murder, and an unlawful killing without malice is involuntary manslaughter. With regard to count II (assault by means of force likely to cause great bodily injury resulting in death), the trial court instructed that in order to find defendant guilty of the crime the jury must find, among other things, that defendant willfully committed an act that by its nature would directly and probably result in the application of force on B.D., the force was likely to produce great bodily injury, and defendant's act caused B.D.'s death. The trial court told the jury that a guardian is not guilty of murder or assault causing the death of a child if he used reasonable physical force to discipline a child. Absent evidence to the contrary, and defendant does not identify any, we presume the jury followed the trial court's instructions. (People v. Houston (2012) 54 Cal.4th 1186, 1214.)
When it convicted defendant of murder and assault causing the death of B.D., the jury necessarily found that defendant's actions or omissions caused B.D.'s death and that defendant acted with malice. Under the circumstances, it is not reasonably probable that the jury would have found defendant guilty of involuntary manslaughter. There was evidence defendant violently attacked B.D. with conscious disregard of the danger to the child's life and the jury found he acted with malice. (People v. Lewis (2001) 25 Cal.4th 610, 646 [any error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decided the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions]; People v. Campbell (2015) 233 Cal.App.4th 148, 167 [jury's determination on a factual issue under other instructions is relevant to determining whether an instructional error is harmless]; People v. DeJesus (1995) 38 Cal.App.4th 1, 22 [the jury could not have found the defendants guilty of involuntary manslaughter where it found express malice]; People v. Polley (1983) 147 Cal.App.3d 1088, 1091-1092.) Even if there had been error, it would have been harmless.
II
Defendant next claims there is insufficient evidence to support the jury's finding of malice.
In determining whether sufficient evidence supports a conviction, " 'we do not determine the facts ourselves. Rather, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.]' [Citations.]" (People v. Nelson (2011) 51 Cal.4th 198, 210.) We do not reweigh evidence or reevaluate a witness's credibility. (Ibid.) The effect of this standard of review is that a defendant challenging the sufficiency of the evidence to support his conviction bears a heavy burden on appeal. (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.)
We have already determined there is no substantial evidence from which a reasonable jury could conclude that defendant acted without malice. As we have explained, malice is implied when the defendant willfully commits an act, the natural and probable consequences of which are dangerous to human life, and the defendant knowingly acts with conscious disregard for the danger to life that his or her act poses. (Beltran, supra, 56 Cal.4th at pp. 941-942.) In addition to the evidence we discussed in the preceding section, Dr. Clark and Dr. Omalu opined that the bites and bruises on B.D.'s body could have caused his death. Dr. Omalu further opined that B.D. died because he was not taken to a doctor in a timely fashion. Defendant's pretrial statements indicated he was aware B.D. was seriously injured yet he did not seek medical aid for B.D. Defendant knew B.D. had injuries to the back and side of his head as well as his forehead. Defendant said B.D. seemed out of it and was groggy and tired after the injury to his head. He saw B.D. vomiting. He said B.D. was "slowly . . . losing energy" after that. He noted that B.D.'s respiration seemed odd after he put B.D. to bed. He informed Sullivan that B.D. was not feeling well. Defendant subsequently expressed concern about B.D.'s condition. Defendant noted that B.D. had abnormal respiration. He said B.D. lost consciousness when he moved B.D. into the other bedroom. Defendant admitted he should have taken B.D. to the hospital. Yet when Sullivan suggested taking B.D. to the hospital, defendant said no. Defendant did not tell Sullivan to call 911 until after B.D. had stopped breathing. The circumstances show implied malice.
Defendant's contention lacks merit.
III
Defendant further argues there is insufficient evidence to support the finding that he was aware of circumstances that a reasonable person would realize were likely to result in great bodily injury to B.D.
The People charged defendant with violating section 273ab, subdivision (a). That statute "defines the offense of child abuse homicide. The elements of the offense are: '(1) A person, having the care or custody of a child under the age of eight; (2) assaults this child; (3) by means of force that to a reasonable person would be likely to produce great bodily injury; (4) resulting in the child's death.' " (People v. Wyatt (2010) 48 Cal.4th 776, 780, fn. omitted (Wyatt).)
Child abuse homicide is a general intent crime. (People v. Albritton (1998) 67 Cal.App.4th 647, 658.) The defendant must act intentionally and be aware of facts that would lead a reasonable person to realize that great bodily injury would directly, naturally and probably result from his or her act. (Wyatt, supra, 48 Cal.4th at pp. 781, 786.) But the defendant need not intend to produce great bodily injury or death nor know or be subjectively aware that his or her act is capable of causing such result. (Ibid.; Albritton, supra, 67 Cal.App.4th at p. 659.) Thus, the requisite mens rea may be found even when the defendant honestly believes his act is not likely to result in such injury. (Wyatt, supra, 48 Cal.4th at pp. 781, 786.)
" 'Great bodily injury' refers to 'significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.' " (People v. Wyatt (2012) 55 Cal.4th 694, 702.)
As we have explained, defendant admitted to detectives that he intentionally bit B.D. and spanked the "crap" out of him. Some of the bite marks went deep into the tissue. Dr. Crawford-Jakubiak explained it was fairly difficult to leave a visible injury by biting. He said one would have to bite very aggressively to leave such an injury. B.D. had subdural, subarachnoid and retinal hemorrhaging, swelling of the brain and acute traumatic spinal injury. The injury to B.D.'s eyes were caused by an action such as very forcefully slamming a child against something. Dr. Melinek said bleeding behind the eye was a marker of severe traumatic injury from a violent impact or shaking. Dr. Crawford-Jakubiak said B.D. "sustained an extreme level of trauma before his death." While defendant denied he caused the injuries to B.D.'s head, the jury was free to reject those denials. B.D.'s injuries indicated inflicted physical abuse. The multiple trauma injuries from impact or shaking caused D.B.'s death. The jury could rationally conclude from the nature, extent and severity of B.D.'s injuries that defendant applied such force upon B.D. that a reasonable person would realize great bodily injury would likely result. (Wyatt, supra, 48 Cal.4th at p. 784-786; People v. Stewart (2000) 77 Cal.App.4th 785, 795 [a reasonable person would clearly know that violent shaking or rapid repeated blows to the head would likely produce great bodily injury on a small child].)
IV
Defendant argues that a limited remand is required so that he may make a record relevant to his future youth offender parole hearing.
Section 3051 requires the Board of Parole Hearings to conduct a youth offender parole hearing in order to consider release in the case of an eligible youth offender who was convicted of a controlling offense for which the sentence is a term of 25 years to life during his or her 25th year of incarceration, unless the offender was previously released or is entitled to an earlier parole consideration hearing pursuant to other statutory provisions. (§ 3051, subds. (a)(1), (b)(3), (d).) "Controlling offense" means the offense or enhancement for which the sentencing court imposed the longest term of imprisonment. (§ 3051, subd. (a)(2)(B).) In determining suitability for parole, the Board must give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law. (§§ 3051, subd. (d), 4801, subd. (c).) "Among these 'hallmark features' of youth are 'immaturity, impetuosity, and failure to appreciate risks and consequences,' as well as the capacity for growth and change." (Franklin, supra, 63 Cal.4th at p. 283.) If psychological evaluations and risk assessment instruments assessing growth and maturity are used by the Board, they must also take into consideration the diminished culpability of youth as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual. (§ 3051, sub. (f)(1).) "Family members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the [offender] before the crime or his or her growth and maturity since the time of the crime may submit statements for review by the Board." (§ 3051, sub.(f)(2).)
In Franklin, the California Supreme Court remanded the matter to the trial court to determine whether the defendant was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing where the sentencing occurred before the Legislature enacted section 3051 and the trial court did not consider youth-related factors when it sentenced the defendant. (Franklin, supra, 63 Cal.4th at pp. 282-284.) In so holding, the Supreme Court recognized that assembling the statements contemplated by section 3051, subdivision (f)(2) "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." (Id. at pp. 283-284.) And " 'psychological evaluations and risk assessment instruments' " must consider information about the offender when he or she was a juvenile. (Id. at p. 284.)
The California Supreme Court described the procedure to be followed on remand: "If the trial court determines that [the defendant] did not have sufficient opportunity, 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. [The defendant] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. 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]." (Franklin, supra, 63 Cal.4th at p. 284.)
The circumstances in this case require a result similar to that in Franklin. Defendant was 24 years old at the time of his offenses. Former section 3051 did not apply to him when the trial court sentenced him; the statute applied to offenders who were younger than 18 years of age at the time of the controlling offense. (Stats. 2013, ch. 312, § 4.) As a result, the probation report and counsel did not discuss or present evidence about the youth-related factors described in sections 3051, 4801 and Franklin for purposes of a future youth offender parole hearing. But defendant now benefits from section 3051 because the statute has been amended to apply to offenders who were 25 years old or younger at the time of the controlling offense. (§ 3051, subd. (a)(1).) Because section 3051 did not apply to defendant at the time of his sentencing and the record does not show that the parties were aware they should create a record of information required for a future youth offender parole hearing when defendant was sentenced, we do not agree with the Attorney General that remand is not necessary because defendant had an opportunity to present additional evidence. We also disagree with the Attorney General's forfeiture argument because section 3051 was not applicable when defendant was sentenced. We remand the matter so the trial court can follow the procedures outlined in Franklin. (People v. Costella (2017) 11 Cal.App.5th 1, 7-10; People v. Garrett (2017) 7 Cal.App.5th 871, 884; People v. Perez (2016) 3 Cal.App.5th 612, 618-619; see People v. Tran (2018) 20 Cal.App.5th 561, 568-570; People v. Jones (2017) 7 Cal.App.5th 787, 819-820.)
DISPOSITION
The judgment is affirmed. The matter is remanded for the limited purpose of a determination consistent with People v. Franklin (2016) 63 Cal.4th 261.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
HOCH, J.