Opinion
A151361
06-27-2018
THE PEOPLE, Plaintiff and Respondent, v. SIMON THORNTON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. 11-18259)
Only one issue remains in this case, and that is whether a limited remand is appropriate to permit appellant Simon Thornton the opportunity to develop a record sufficient to enable an eventual youth offender parole hearing decades in the future. We affirm the judgment, but remand to the trial court for this limited purpose.
FACTUAL AND PROCEDURAL HISTORY
On July 20, 2011, at a campsite at Lake Mendocino, Thornton and his codefendant Marvin Douglas Johnson murdered Joe Litteral and attempted the murder of Brandon Haggett, who was shot and seriously wounded. The facts are summarized in our opinion from Thornton's first appeal (A136124). (People v. Johnson and Thornton (2016) 243 Cal.App.4th 1247, 1252-1265.)
Thornton was found guilty of murder, attempted murder and firearm use enhancements in June 2012, and he was sentenced on July 20, 2012 to state prison for 25 years to life plus nine years.
Thornton appealed, and we conditionally reversed his conviction for first degree murder and remanded the matter for a new trial or for the prosecution to elect a conviction of murder in the second degree to be entered against Thornton. Eventually the district attorney elected not to retry Thornton, and judgment was entered against him for second degree murder. In May 2017, Thornton was resentenced to state prison for 15 years to life plus nine years. Thornton was 22 years old at the time he committed the crimes.
This appeal followed.
DISCUSSION
Thonton does not appeal the substance of the sentence. His requested relief is a limited remand to place additional evidence on the record for a future youth parole suitability hearing pursuant to Penal Code section 3051 and People v. Franklin (2016) 63 Cal.4th 261 (Franklin). Section 3051, effective January 2014, provides for youth offender parole hearings for offenders sentenced to prison for crimes committed when they were 25 years of age or younger. Section 3051 applies retrospectively to all eligible youth offenders, without regard to the date of conviction. (Franklin at p. 278.)
All statutory references are to the Penal Code.
When Thornton was resentenced in May 2017, section 3051 applied to offenders who committed crimes when they were under 23 years of age. (See Franklin, supra, 63 Cal.4th at p. 277, citing Stats. 2015, ch. 471.)
Franklin elaborated on the need to develop a contemporaneous record about the offender. "The Legislature has declared that '[t]he youth offender parole hearing to consider release shall provide for a meaningful opportunity to obtain release' (§ 3051, subd. (e)) and that in order to provide such a meaningful opportunity, the Board [of Parole Hearings] 'shall 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' (§ 4801, subd. (c))." (Franklin, supra, 63 Cal.4th at p. 283.) Our Supreme Court in Franklin wrote that "the statutes also 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. 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 board.' Assembling such statements 'about the individual before the crime' is typically a task more easily done at or near the time of the . . . 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. In addition, section 3051, subdivision (f)(1) provides that any 'psychological evaluations and risk assessment instruments' used by the Board in assessing growth and maturity 'shall take into consideration . . . any subsequent growth and increased maturity of the individual.' Consideration of 'subsequent growth and increased maturity' implies the availability of information about the offender when he was a juvenile." (Id. at pp. 283-284.)
Section 3051, subdivision (e) now refers to the culpability of "youth" rather than "juveniles."
In Franklin, the court thus granted a limited remand so that if the trial court determined that Franklin had not had a sufficient opportunity to do so, he could place on the record documents, evaluations or testimony that might be relevant to his eventual youth offender parole hearing, with the "goal . . . to provide an opportunity for the parties to make an accurate record of the . . . offender's characteristics or 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 (§ 4801, subd. (c))" in determining whether defendant should be paroled. (Franklin, supra, 63 Cal.4th at p. 284.)
Thornton acknowledges that Franklin was decided the year before his resentencing. But he argues that he did not have the opportunity to place additional evidence on the record at his sentencing, or in the alternative that his counsel at resentencing was ineffective in failing to make the record.
The Attorney General argues that Thornton forfeited the issue by not objecting to the probation reports or the court's findings or the sentence itself; that Franklin does not apply because the trial court did not restrict Thornton from making a full record at sentencing; and that given the information that is in the record Thornton has not shown that defense counsel was ineffective in not presenting more information. That said, the Attorney General sums up that if this court "concludes that [Thornton] was not afforded a sufficient opportunity to present evidence relevant to his future parole hearing, remand is proper for the limited purpose of allowing [Thornton] to present any such mitigating evidence. (Franklin, supra, 63 Cal.4th at pp. 286-287.)"
We do conclude that Thornton was not afforded a sufficient opportunity on account of his counsel's arguably ineffective assistance at resentencing, and that a limited remand is warranted under the very unusual procedural circumstances of this case.
Thornton was originally sentenced in 2012, before section 3051 was enacted, and before Franklin. The 2012 probation reports obviously were not prepared with a youthful offender parole hearing in mind decades in the future. Thornton and his father wrote letters to the court for the 2012 sentence. Thornton addressed the court at his sentencing very briefly, principally to "clarify" statements attributed to him in the probation report about his childhood. He then asked the trial court to permit his mother and his fiancée (also the mother of his child), who were present in the courtroom, to address the court on his behalf. The court denied the request, stating "I am not inclined to have anybody make a statement. I did receive the letter from [Thornton's] father." The matter was submitted without objection.
In connection with the 2012 sentencing, there were two probation reports, both filed on July 20, 2012, but one bearing the title "amended."
Thornton was represented during the trial and 2012 sentencing by a different attorney from the attorney who represented him at the 2017 resentencing.
For the 2017 resentencing, the trial court referred Thornton's case to the probation department, but only for a memorandum concerning custody credits. Thornton's counsel did not object. The trial court invited counsel to submit sentencing memoranda and any other "legal filing[s], letters or anything relating to the sentence" one week before the resentencing hearing. Thornton's counsel submitted a memorandum which principally focused on urging the trial court to impose concurrent, not consecutive, sentences. Counsel tailored her arguments to the California Rules of Court for felony sentencing. At the end of the memo, under the catch-all Rule of Court 4.408, counsel mentioned Thornton's "significant history of mental health issues," writing:
"Defendant was just 22 years of age at the time of the offense; Defendant has a significant history of mental health issues, including suicide attempts, 5150 commitments, voluntary commitments, and out of home placements through Pittsburg Mental Health in Contra Costa County. (In support of this last statement, Counsel has reviewed hundreds of pages of mental health documents provided from Contra Costa County that support this representation) . . . ."
The Probation Report indicates that Thornton had only lived in Mendocino County for two years at the time of the offense; before that he lived in Contra Costa County where he was raised and graduated from high school.
None of these "hundreds of pages of mental health documents" are part of the record, and counsel did not elaborate on the issue at the resentencing hearing. Nor does the probation report from 2012 have much to say on the subject. Under the heading "SOCIAL INFORMATION" "Medical/Psychological" there is a brief description, but all in Thornton's own words, characterizing his psychological diagnoses and his then mental state. It is nine lines long.
Thornton argues he was denied effective assistance of counsel because either his trial counsel did not recognize that under Franklin she had the "opportunity" to make a record for his future parole hearing, or she simply failed to avail herself of it. In either event, counsel should have made the "hundreds of pages of mental health documents" part of the record. Thornton contends that the "bald assertion" by counsel without any documents will be "useless when [his] section 3051 youth offender parole hearing rolls around in 2031," and the probation reports do not fully address the "baseline" as against which his "subsequent growth and increased maturity" can be measured decades from now.
We take no position as to when a section 3051 parole hearing will occur. --------
To prevail on a claim of ineffective assistance of counsel, Thornton "must demonstrate both deficient performance under an objective standard of professional reasonableness and prejudice under a similarly objective standard of reasonable probability of an adverse effect on the outcome." (People v. Waidla (2000) 22 Cal.4th 690, 718.) In a claim of ineffective assistance of counsel on direct appeal, where "the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.)
We cannot conjure a satisfactory explanation, and neither can the Attorney General, who simply argues that "given the relevant information in front of the trial court" at the resentencing, it was not objectively unreasonable not to provide the court with any additional information. But plainly the reference to "hundreds of pages of mental health documents" that defense counsel made the laudable effort to review in 2017—but inexplicably did not make part of the record for the future—calls out for a limited remand in 2018 without further delay.
DISPOSITION
The judgment is affirmed. The case is remanded for the limited purpose of permitting the parties to present evidence relevant to Thornton's future parole hearing. (Franklin, supra, 63 Cal.4th 261.)
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.