Opinion
B286020
04-03-2020
THE PEOPLE, Plaintiff and Respondent, v. JUAN TOSCANO, Defendant and Appellant.
Susan Wolk, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Marc A. Kohm and Peggy Z. Huang, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA169888-02) APPEAL from an order of the Superior Court of Los Angeles County, Charlaine F. Olmedo, Judge. Appeal dismissed and deemed petition for writ of habeas corpus. Petition denied. Susan Wolk, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Marc A. Kohm and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
When Juan Toscano was 17 years old, he shot and killed Juan Ordones, shot and wounded Carlos Peredes and robbed Carlos Mazariego. A jury found Toscano guilty of special circumstance premeditated murder, among other crimes, and found specially alleged firearm-use allegations true. The court sentenced Toscano to a term of life in prison without the possibility of parole (LWOP) pursuant to Penal Code section 190.5, plus 25 years to life for the firearm-use enhancement. Toscano's conviction was affirmed on appeal. (People v. Toscano (Mar. 7, 2000, B130595) [nonpub. opn.].)
Statutory references are to this code.
In Miller v. Alabama (2012) 567 U.S. 460 (Miller) the United States Supreme Court held that mandatory LWOP sentences for juvenile offenders convicted of homicide offenses violated the Eighth Amendment prohibition on cruel and unusual punishment because such mandatory sentencing schemes deprived the sentencing court of discretion to consider the offender's youth and its associated hallmark features. In People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez) the California Supreme Court held section 190.5, California's sentencing scheme for defendants found guilty of first degree murder with one or more special circumstances who were 16 or 17 years old at the time of the commission of the crime, which had previously been interpreted to create a presumption in favor of imposing an LWOP sentence rather than 25 years to life, comports with the Eighth Amendment as stated in Miller only if interpreted so as not to impose a statutory presumption of LWOP.
In 2015 Toscano filed a petition for writ of habeas corpus in the superior court arguing his LWOP sentence violated the Eighth Amendment as stated in Miller and Gutierrez. Toscano asked the court to vacate his sentence and, after considering the youth offender factors identified in Miller (the Miller factors), to impose a lesser sentence. The People filed a return to the petition conceding that Toscano was entitled to a limited hearing to consider the Miller factors. The court scheduled an evidentiary hearing and, after considering evidence and argument relating to the Miller factors, denied Toscano's petition for a writ of habeas corpus. The court ruled that, even with consideration of new evidence directed to the Miller factors, Toscano's LWOP sentence did not violate the Eighth Amendment. Toscano filed a notice of appeal from the court's order.
On appeal Toscano primarily argues the superior court abused its discretion by not resentencing him to a lesser sentence after consideration of the Miller factors. We dismiss Toscano's appeal for lack of jurisdiction because the order denying his petition for writ of habeas corpus is not an appealable order. At Toscano's request and to promote judicial economy, we have deemed the notice of appeal and Toscano's opening brief a petition for writ of habeas corpus. To that end, and without objection by the People, we have also deemed the People's appellate brief a return and Toscano's reply a traverse.
Section 3051, subdivision (b)(4), which was enacted during the pendency of Toscano's appeal/petition in this court, has transformed his initial LWOP sentence to one affording him a meaningful opportunity for release after 25 years, thereby mooting his constitutional claim under Miller. To the extent Toscano's claim that he has suffered collateral consequences from an improper LWOP sentence that are not mooted by section 3051 is cognizable in a petition for writ of habeas corpus, we reject on its merits his argument the superior court abused its discretion in declining to modify his sentence. Accordingly, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
1. Toscano's Petition for Writ of Habeas Corpus
On March 25, 2015, 15 years after his conviction became final, Toscano filed a petition for writ of habeas corpus in the superior court asserting his LWOP sentence imposed in 1999 violated the Eighth Amendment as stated in Miller and Gutierrez. Toscano requested the court vacate his sentence, conduct a new sentencing hearing considering the youth factors identified in Miller and resentence him to a sentence of 25 years to life.
On August 13, 2015 the People filed a return to Toscano's petition for writ of habeas corpus. The People admitted that Toscano was entitled to a hearing to determine whether, after consideration of the Miller factors and without the presumption of LWOP applied to section 190.5 prior to the Court's decision in Gutierrez, Toscano's LWOP sentence violated the federal Constitution.
The record provided with Toscano's appeal does not indicate whether the People's return was filed in the superior court in response to an order to show cause. No order to show cause is included in the record.
Pursuant to rule 4.551(f) of the California Rules of Court, the superior court scheduled an evidentiary hearing on the petition for August 25, 2017, which was continued to October 3, 2017. Prior to the scheduled hearing, Toscano filed a "sentencing memorandum" reiterating his argument that his LWOP sentence violated the Eighth Amendment and urging the court to impose a lesser sentence of 25 years to life. The People filed a document entitled "Opposition To Defendant Toscano's Request for Resentencing With Respect To His LWOP Sentencing [On] March 3, 1999," arguing that, even with consideration of the Miller factors, resentencing Toscano would be inappropriate. The People urged the court to deny Toscano's habeas corpus petition.
Rule 4.551(f) of the California Rules of Court provides in part, "An evidentiary hearing is required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matter of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact." (See In re Rhodes (2017) 10 Cal.App.5th 896, 910.)
Following the evidentiary hearing the court denied Toscano's petition for writ of habeas corpus, finding he had not demonstrated his LWOP sentence violated the Eighth Amendment as stated in Miller.
Toscano filed a notice of appeal from the court's order denying his petition for writ of habeas corpus.
DISCUSSION
1. The Court's Order Is Not Appealable
An order denying a petition for writ of habeas corpus is not appealable. (See Briggs v. Brown (2017) 3 Cal.5th 808, 836; In re Clark (1993) 5 Cal.4th 750, 767, fn. 7 ["[b]ecause no appeal lies from the denial of a petition for writ of habeas corpus, a prisoner whose petition has been denied by the superior court can obtain review of his claims only by the filing of a new petition in the Court of Appeal"].)
In a letter brief submitted in response to this court's inquiry whether the appeal should be dismissed for lack of jurisdiction, Toscano urged that we exercise our discretion to consider his appeal as a petition for writ of habeas corpus. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating defendant's appeal from nonappealable order as petition for writ of habeas corpus]; People v. Gallardo (2000) 77 Cal.App.4th 971, 986 [treating appeal from denial of petition for writ of habeas corpus as petition for writ filed as original proceeding in appellate court].) The People did not file a letter brief, despite our invitation to do so, and have not objected to this approach. Accordingly, in the interest of judicial economy, we deem Toscano's notice of appeal and opening brief a petition for writ of habeas corpus.
2. Petition for Writ of Habeas Corpus
a. Toscano's Miller claim is moot
Effective January 1, 2018, a juvenile offender sentenced to LWOP is now entitled to a youth offender parole hearing during the juvenile's 25th year of incarceration. (See § 3051, subd. (b)(4) ["[a] person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which the sentence is [LWOP] shall be eligible for release on parole at a youth offender parole hearing during the person's 25th year of incarceration," unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions]; Stats. 2017, ch. 684, § 1.5.)
Section 3051, subdivision (b)(4), has effectively transformed Toscano's sentence from LWOP to one in which he is statutorily afforded a meaningful opportunity for release, thereby making his Miller claim moot. (See In re Cook (2019) 7 Cal.5th 439, 449 ["'[a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them,'" quoting Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718, 736] (Montgomery)]; cf. People v. Franklin (2016) 63 Cal.4th 261, 276-277 (Franklin) ["[T]he combined operation of section 3051, section 3046, subdivision (c), and section 4801 [codified as part of Senate Bill No. 260] means that Franklin is now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration. . . . The Legislature's enactment of Senate Bill No. 260 has rendered moot Franklin's challenge to his original sentence under Miller"]; see generally In re Arroyo (2019) 37 Cal.App.5th 727, 732 [courts are "bound to '"decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it"'"].)
In Franklin the Court considered whether new legislation passed in 2013 that granted a mandatory parole hearing to youth offenders convicted of crimes, including those sentenced to life terms (excluding those sentenced to LWOP) mooted the defendant's constitutional Miller claim. In holding that it did, the Court also recognized that, for the mandatory youth offender parole hearing to be meaningful, a youth offender sentenced prior to Miller must be afforded the opportunity to make a record of information relevant to that eventual hearing, in a procedure now referred to as a "Franklin proceeding." (See Franklin, supra, 63 Cal.4th at p. 278; see also In re Cook, supra, 7 Cal.5th at p. 451 ["we hold that an offender entitled to a hearing under sections 3051 and 4801 may seek the remedy of a Franklin proceeding even though the offender's sentence is otherwise final"]; People v. Rodriguez (2018) 4 Cal.5th 1123, 1132 [holding youth offender sentenced prior to Miller shall have the benefit of a "Franklin proceeding" to supplement record with information relevant to the defendant's eventual youth offender parole hearing].)
Toscano does not dispute that he had the opportunity during the evidentiary hearing held by the superior court to make a record of the youth offender factors relevant to his eventual parole hearing. Accordingly, his Miller claim is moot. (Franklin, supra, 63 Cal.4th at pp. 276-277; see People v. Lozano (2017) 16 Cal.App.5th 1286, 1291-1292.)
b. Toscano is not entitled to a new Miller hearing
In urging us to consider his petition for a new Miller hearing notwithstanding section 3051, subdivision (b)(4)'s remedy of a mandatory youth offender parole hearing, Toscano contends there are collateral consequences from an LWOP sentence that are not mooted by a parole hearing during his 25th year of incarceration. For example, he contends his continued LWOP sentence: (1) deprives him of the right to an earlier parole eligibility date applicable to non-LWOP inmates (compare Cal. Code Regs., tit. 15, § 3043.2, subd. (b)(1) ["[n]o [good conduct] credit shall be awarded to an inmate sentenced to death or to a term of life without the possibility of parole"] with Cal. Code Reg., tit. 15, § 3043.2, subd. (b)(2) [affording conduct credit to non-LWOP offenders]); (2) affects his housing and availability of programs (see Cal. Code Regs., tit. 15, § 3375.2 [inmate serving LWOP shall not be housed in a facility with a security level lower than Level II unless authorized by the Department Review Board]); and (3) excludes him from applying for medical parole (Cal. Code Regs., tit. 15, § 2816, subd. (a)), among other things. Accordingly, Toscano argues, a new Miller hearing resulting in a lesser sentence would remedy these collateral consequences, refuting the contention his claim is moot. (See People v. DeLeon (2017) 3 Cal.5th 640, 646, fn. 2 [recognizing that collateral consequences can avoid a mootness determination; "[w]e do not foreclose the possibility that, under other circumstances, a defendant could demonstrate sufficiently concrete consequences to avoid a finding of mootness, even if the term of imprisonment has already concluded"]; People v. Ellison (2003) 111 Cal.App.4th 1360, 1368-1369 [challenge to completed sentence not moot where adverse collateral consequences may arise].)
The People assert, and the record suggests, that Toscano's housing designation changed following his 15th year of incarceration and he is now eligible for, and participating in, programs.
We have serious doubts whether Toscano's nonconstitutional claim related to secondary features of his sentence is cognizable in this petition for writ of habeas corpus seeking a new Miller hearing based on an alleged Eighth Amendment violation. Even if it were, his claim lacks merit. Miller requires the sentencing court to consider (1) the juvenile offender's chronological age at the time of the crime and associated hallmark features—among them, immaturity, impetuosity and failure to appreciate risks and consequences; (2) the juvenile offender's family and home environment; (3) the circumstances of the homicide offense, including the way familial and peer pressures may have affected the offender; (4) whether the offender might have been charged with and convicted of a lesser offense if not for incompetencies associated with youth; and (5) the possibility of rehabilitation. (Miller, supra, 567 U.S. at p. 478; accord, In re Kirchner (2017) 2 Cal.5th 1040, 1048 [citing Miller factors].)
Here, the court began its analysis by recognizing, consistent with Gutierrez, that there was no presumption in favor of LWOP for a juvenile convicted of first degree murder with special circumstances. The court then carefully and extensively considered each of the Miller factors, finding, among other things, Toscano's record of violence began before the crime and continued for more than a decade following his imprisonment, including a conviction in 2010 for attempted murder of a fellow inmate. The court also observed there was scant, if any, evidence helpful to Toscano in relation to the remaining factors, other than he had committed the crime one day before he turned 18 years old. The court concluded the LWOP sentence "in this particular case that was imposed I find is not disproportionate to your individual culpability and it doesn't shock the conscience. You had an escalating juvenile history prior to the commitment offense, and you do not fall within that class of offenders whose crimes reflect transient immaturity of youth."
Relying on language in Montgomery, which held Miller's prohibition on mandatory LWOP sentences for juvenile offenders is retroactive in cases on state collateral review, Toscano argues that, for an LWOP sentence imposed on a juvenile offender to withstand constitutional scrutiny, the sentencing court must expressly find the juvenile "exhibits such irretrievable depravity that rehabilitation is impossible." (Montgomery, supra, 136 S.Ct. at p. 733; see Miller, supra, 567 U.S. at pp. 479-480 [mandatory LWOP sentences for juveniles violate the Eighth Amendment because they fail to distinguish between "'the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption'"].) Because the superior court did not expressly find rehabilitation was "impossible" or that his crime reflected "irreparable corruption," Toscano argues, a new Miller hearing is required.
The United States Supreme Court recently granted a petition for writ of certiorari to decide whether language in Montgomery concerning the impossibility of rehabilitation governs the Eighth Amendment analysis for LWOP sentences imposed on juveniles. (Jones v. Mississippi (Miss. App. 2017) 285 So.3d 626, cert. granted Mar. 9, 2020, No. 18-1259, ___ U.S. ___ .)
The language Toscano cites from Montgomery and Miller is directed to mandatory LWOP sentences that fail to consider the hallmark features of youth, which often have significant bearing on the juvenile offender and the crime he or she committed. Miller remedied that too-restrictive approach by articulating factors for the court to consider in exercising its discretion whether to impose LWOP. (See Miller, supra, 567 U.S. at p. 478.) While holding Miller retroactive, Montgomery did not expand the Miller holding or add new requirements for a sentencing court's imposition of an LWOP sentence. To be sure, Miller acknowledged that LWOP for a juvenile offender should be an "uncommon" occurrence. (Miller, at p. 479.) However, neither Miller nor Montgomery held that discretionary LWOP sentences could not be imposed unless the court found rehabilitation an impossibility, nor has the California Supreme Court interpreted Miller in that fashion. (See Gutierrez, supra, 58 Cal.4th at p. 1379 ["[u]nder Miller, a state may authorize its courts to impose life without parole on a juvenile homicide offender when the penalty is discretionary and when the sentencing court's discretion is properly exercised in accordance with [the factors identified in] Miller"].) In any event, the superior court here concluded that neither Toscano's youth, nor any of the circumstances attendant to it, was a material factor in the commission of his crime or his potential for rehabilitation. That finding, when made in conjunction with consideration of the Miller factors, satisfies the Eighth Amendment as articulated in Miller and Montgomery. Of course, Toscano may argue in the future, during his mandatory youth offender parole hearing or pursuant to a petition for recall and resentencing under section 1170, subdivision (d)(2), that he has demonstrated rehabilitative improvements notwithstanding an initial LWOP sentence. The court recognized as much when it encouraged him to complete programming in anticipation of a section 1170, subdivision (d)(2), petition. (See In re Kirchner, supra, 2 Cal.5th at p. 1053 [distinguishing between petition for habeas corpus alleging Miller error and petition for recall and resentencing under section 1170, subdivision (d)(2); the latter focuses on defendant's record of rehabilitation while the former focuses largely on whether LWOP sentence was constitutionally infirm at time it was imposed].) Be that as it may, he is not entitled to a new Miller hearing.
Section 1170, subdivision (d)(2), authorizes certain juvenile offenders serving LWOP for a controlling offense to seek recall of their sentences and resentencing to a term that includes the opportunity of parole. An eligible defendant may file a petition requesting recall and resentencing after having been incarcerated for at least 15 years. (§ 1170, subd. (d)(2)(A)(i).) If the court finds by a preponderance of the evidence one or more of the qualifying circumstances to be true, the court must recall the sentence and hold a resentencing hearing. (Id., subd. (d)(2)(E); In re Kirchner, supra, 2 Cal.5th at pp. 1049-1050.) In deciding an appropriate sentence, the court may consider a variety of factors that may, but do not always, overlap with the Miller factors. (§ 1170, subd. (d)(2)(F); In re Kirchner, at pp. 1050-1052.)
Finally, Toscano asserts the court erred in ignoring the lack of proportionality between his sentence and that of his adult codefendant, who was sentenced to 12 years in prison pursuant to a plea bargain. In responding to the same argument, the superior court stated, "The fact that the adult codefendant received a plea bargain that resulted in a lesser sentence where the codefendant was not the shooter does not necessarily change the court's evaluation here but is reflective of the People's evaluation of either what the case was worth or what they thought they could get from the case had it been taken to a jury, but [it] is not something that the court considers in evaluating Mr. Toscano's participation." The court was correct. (See People v. Gurule (2002) 28 Cal.4th 557, 663 [rejecting defendant's argument that the death penalty was unconstitutional because his culpability was not greater than that of his codefendant, who received a sentence of 30 years to life; "'[w]e have consistently rejected the contention that intercase proportionality review is required'"].)
c. Because Toscano's sentence is final, he is not entitled to the benefit of new legislation authorizing the court to strike a prior mandatory firearm-use enhancement or case authority regarding hearings on fines and fees
Before January 1, 2018 the sentencing court was not permitted to strike or dismiss a mandatory firearm-use enhancement imposed under sections 12022.53 or 12022.5. (See §§ 12022.53, former subd. (h), 12022.5, former subd. (c).) Effective January 1, 2018, the Legislature amended both sections to permit the superior court in its discretion to strike or dismiss a firearm-use enhancement in furtherance of justice. (See Sen. Bill No. 620 (2017-2018 Reg. Sess.) Stats. 2017, ch. 682; see also People v. Billingsley (2018) 22 Cal.App.5th 1076, 1080.)
Toscano's conviction became final following our affirmance of his conviction in March 2000. As discussed, he was not resentenced in accordance with his petition for writ of habeas corpus; his petition was denied. Accordingly, he is not entitled to the benefit of the new legislation. (People v. Johnson (2019) 32 Cal.App.5th 938, 942 [amendments to sections 12022.53 and 12022.5 apply to those whose convictions are not yet final or who have obtained collateral relief by way of a state or federal habeas corpus proceeding]; see People v. Hernandez (2019) 34 Cal.App.5th 323, 326; People v. Woods (2018) 19 Cal.App.5th 1080, 1091.)
Similarly, while Toscano's appeal was pending, this court decided People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held that imposition of fines, fees and assessments on indigent defendants regardless of ability to pay violated due process. As for the mandatory minimum restitution fine under section 1202.4, which, by its terms must be imposed regardless of a defendant's ability to pay, we held the sentencing court was required to stay the execution of that fine unless and until the People demonstrate the defendant has the ability to pay the fine. (See Dueñas, at p. 1172 [to avoid the serious constitutional question raised by imposition of the mandatory minimum restitution fine on an indigent defendant, "the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay the fine"].) We subsequently held that a defendant sentenced prior to our decision in Dueñas did not forfeit the constitutional issue by failing to object at sentencing. (People v. Castellano (2019) 33 Cal.App.5th 485, 489.)
In People v. Belloso (2019) 42 Cal.App.5th 647, review granted March 11, 2020, S259755, we reaffirmed our holdings in Dueñas and Castellano and addressed several opinions from intermediate appellate courts that disagreed with our analyses in those cases. The Supreme Court has granted review in People v. Kopp, review granted November 13, 2019, S257844, to resolve this split in authority.
Toscano contends imposition of the then-minimum $200 restitution fine in 1999 without a hearing on his ability to pay that fine violated due process under Dueñas and requests that we remand for resentencing for the superior court to consider that constitutional claim. Because Toscano's conviction is final, however, remand for resentencing, a remedy on direct appeal from an unlawful sentence, is not available to him.
To the extent Toscano seeks the remedy of a Dueñas hearing by a petition for writ of habeas corpus, he has not suggested he has suffered any significant adverse consequence from the failure to stay execution of the restitution fine. Accordingly, he has not demonstrated a prima facie case for habeas relief. (See generally People v. Duvall (1995) 9 Cal.4th 464, 474-475 [describing procedure for obtaining habeas relief].) --------
DISPOSITION
Toscano's appeal from denial of his petition for writ of habeas corpus is dismissed. Deeming the notice of appeal and opening brief a petition for writ of habeas corpus, the petition is denied.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.