Opinion
C081883
07-23-2018
THE PEOPLE, Plaintiff and Respondent, v. RATTANY UY, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. STKCRFE20080006734/SF107288B)
Defendant Rattany Uy was convicted in 2009 of committing first degree murder as an active participant in, and for the benefit of, a criminal street gang. He was also convicted of three attempted premeditated murders, shooting at an occupied motor vehicle, carrying a loaded firearm by a gang participant, carrying a concealed firearm by a gang participant, and active participation in a criminal street gang. At the time the offenses were committed, Uy was 17 years old.
Among other things, the trial court sentenced Uy to life in prison without the possibility of parole (LWOP) on the murder count, plus a consecutive 10-year prison term pursuant to a Penal Code section 186.22, subdivision (b)(1) enhancement. In an opinion filed on December 31, 2013 (People v. Uy (C063037) [nonpub. opn.]), this court struck the 10-year enhancement and affirmed the judgment as modified. The California Supreme Court granted Uy's petition for review on April 30, 2014, and deferred action in the case pending disposition in People v. Gutierrez (Supreme Ct. No. S206365) and People v. Moffett (Supreme Ct. No. S206771). The California Supreme Court consolidated the actions in Guiterrez and Moffett to determine whether a presumption in favor of a sentence of LWOP under section 190.5, subdivision (b) violates the Eighth Amendment to the federal Constitution under the principles announced in Miller v. Alabama (2012) 567 U.S. 460 (Miller). (People v. Gutierrez (2014) 58 Cal.4th 1354, 1360-1361 (Gutierrez).) After it filed its opinion in Gutierrez, supra, 58 Cal.4th 1354, the California Supreme Court transferred this case back to this court with directions to vacate this court's decision and to reconsider the cause in light of Gutierrez.
Undesignated statutory references are to the Penal Code.
This court vacated its original opinion and, in an opinion filed on November 14, 2014 (People v. Uy (C063037) [nonpub. opn.]), reversed the LWOP sentence on the murder count and remanded the matter for resentencing consistent with Gutierrez, supra, 58 Cal.4th 1354 and Miller, supra, 567 U.S. 460. This court also modified the judgment by striking the 10-year enhancement on the murder count imposed pursuant to section 186.22, subdivision (b)(1). In all other respects, this court affirmed the judgment.
On remand, the trial court held a resentencing hearing at which it considered the youth-related factors outlined in Miller and Gutierrez and again imposed a sentence of LWOP on the murder count.
Uy now appeals for a second time, arguing that his trial counsel rendered ineffective assistance at the resentencing hearing, and that the trial court did not apply the United States Supreme Court's newly articulated interpretation of Miller as set forth in Montgomery v. Louisiana (2016) 577 U.S. ___, (Montgomery).
We asked the parties to file supplemental letter briefs addressing whether the recent passage of Senate Bill 394 (Senate Bill 394) renders this appeal moot. Senate Bill 394 amended section 3051 to provide that certain individuals sentenced to LWOP for a crime committed as a juvenile shall be eligible for parole and a youth offender parole hearing after 25 years of incarceration. (Stats. 2017, ch. 684, § 1.5.) Having reviewed the supplemental letter briefs, we conclude Senate Bill 394 applies to Uy and renders his appellate contentions moot. However, we will remand the matter for a limited purpose: to allow the trial court to determine whether Uy had a sufficient opportunity to make a record of information that will be relevant at a future youth offender parole hearing. In all other respects, we will affirm the judgment.
DISCUSSION
A
The Eighth Amendment protects against cruel and unusual punishment. (U.S. Const., 8th Amend.) Punishment for crime should be graduated and proportioned to the offense. (Roper v. Simmons (2005) 543 U.S. 551, 560 (Roper).) What constitutes cruel and unusual punishment under the Eighth Amendment is a fluid concept that is determined by looking not only to historical conceptions, but also to " ' "the evolving standards of decency that mark the progress of a maturing society." ' [Citations.]" (Graham v. Florida (2010) 560 U.S. 48, 58 [176 L.Ed.2d 825, 835] (Graham).)
The U.S. and California Supreme Courts have issued a series of decisions limiting the types of sentences which may be imposed on juvenile offenders. (See Roper, supra, 543 U.S. 551 [juveniles not eligible for death penalty]; Graham, supra, 560 U.S. 48 [juvenile convicted of a nonhomicide offense may not be sentenced to LWOP]; People v. Caballero (2012) 55 Cal.4th 262 (Caballero) [extending Graham to juveniles who receive sentences which are the functional equivalent of LWOP].) In Miller, the United States Supreme Court held that the Eighth Amendment prohibits sentencing schemes that mandate LWOP for a juvenile convicted of a homicide offense. (Miller, supra, 567 U.S. at pp. 470, 479.) The Court explained: "By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. . . . [G]iven all we have said in [various opinions] about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty . . . of distinguishing at this early age between 'the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.' [Citations.] Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." (Id. at pp. 479-480, fn. omitted.) The Court emphasized: "Our decision does not categorically bar a penalty for a class of offenders or type of crime. . . . Instead, it mandates only that a sentencer follow a certain process -- considering an offender's youth and attendant characteristics -- before imposing a particular penalty." (Id. at p. 483.) The Court in Miller outlined five factors that generally will be relevant to the individualized determination that must be performed before a juvenile offender may be sentenced to LWOP. (Id. at pp. 477-478.)
In Gutierrez, the California Supreme Court determined that California's statutory scheme for sentencing 16 and 17 year olds convicted of special circumstance murder does not violate the Eighth Amendment because a sentence of LWOP is discretionary, not mandatory. (Gutierrez, supra, 58 Cal.4th at pp. 1360-1361 [construing § 190.5, subd. (b)].) Properly construed, the sentencing standard created by section 190.5, subdivision (b) allows a sentence of either 25 years to life or LWOP, with no presumption in favor of LWOP. (Gutierrez, at pp. 1360-1361.) In exercising its sentencing discretion, a sentencing court must consider the aggravating and mitigating factors enumerated in section 190.3 and the California Rules of Court. (Gutierrez, at p. 1387.) Under Miller, supra, 560 U.S. 460, a sentencing court must also "consider the 'distinctive attributes of youth' and how those attributes 'diminish the penological justifications for imposing the harshest sentences on juvenile offenders' before imposing life without parole on a juvenile offender." (Gutierrez, at p. 1361.)
As the Court in Gutierrez explained, Miller requires a trial court to admit and consider relevant evidence of the following: (1) the defendant's age and the " 'hallmark features' " of youth, i.e., immaturity, impetuosity, and failure to appreciate risks and consequences; (2) relevant " 'environmental vulnerabilities' " such as childhood abuse or neglect, familial drug or alcohol abuse, lack of adequate parenting or education, prior exposure to violence, and susceptibility to psychological damage or emotional disturbance; (3) the circumstances of the present offense, including the extent of the defendant's participation in the offense, the way familial and peer pressures may have affected the defendant, and whether substance abuse played a role in the defendant's commission of the offense; (4) whether the defendant " 'might have been charged and convicted of a lesser offense if not for incompetencies associated with youth -- for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys' "; and (5) any evidence or other information bearing on the possibility of rehabilitation, including the extent or absence of a prior criminal record. (Gutierrez, supra, 58 Cal.4th at pp. 1388-1389.) In considering the pertinent factors, "a sentencing court has discretion under Miller to decide on an individualized basis whether a 16- or 17-year-old offender is a ' "rare juvenile offender whose crime reflects irreparable corruption," ' " and is therefore deserving of LWOP. (Gutierrez, at p. 1380.)
Recently, in Montgomery, the United States Supreme Court clarified that Miller announced a substantive rather than a procedural rule, and therefore operates retroactively. (Montgomery, supra, 577 U.S. at p. ___ [193 L.Ed.2d at pp. 617-619].) The Court in Montgomery explained that "Miller . . . did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of 'the distinctive attributes of youth.' [Citation.] Even if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ' "unfortunate yet transient immaturity." ' [Citation.] Because Miller determined that sentencing a child to life without parole is excessive for all but ' "the rare juvenile offender whose crime reflects irreparable corruption," ' [citation], it rendered life without parole an unconstitutional penalty for 'a class of defendants because of their status' -- that is, juvenile offenders whose crimes reflect the transient immaturity of youth. [Citation.] As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is retroactive because it " 'necessarily carr[ies] a significant risk that a defendant" ' -- here, the vast majority of juvenile offenders -- ' "faces a punishment that the law cannot impose on him." ' [Citation.]" (Montgomery, at p. ___ [193 L.Ed.2d at pp. 619-620].)
In response to Miller, Graham, and Caballero, the California Legislature enacted Senate Bill No. 260 (Senate Bill 260), which became effective January 1, 2014. Senate Bill 260 added section 3051 to the Penal Code, creating a youth offender parole hearing process. (Stats. 2013, ch. 312, § 4.) At the youth offender parole hearing, the Board of Parole Hearings is directed to "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).) As originally enacted, section 3051 provided a juvenile who was under the age of 18 at the time of his crime with a youth offender parole hearing during the 15th, 20th, or 25th year of his incarceration, depending on his controlling offense. (Former § 3051, subds. (a) & (b); Stats. 2013, ch. 312, § 4.) In 2015, the statute and associated Penal Code provisions were amended to apply to offenders sentenced to state prison for crimes committed when they were less than 23 years of age. (Stats. 2015, ch. 471, § 1.) Assembly Bill No. 1308, which the Governor signed on October 11, 2017, and which became effective on January 1, 2018, further amends the statute to extend youth offender parole hearing eligibility to persons who are 25 years of age or younger at the time of the offense. (Stats. 2017, ch. 675, § 1.)
In addition, the original enactment of section 3051, subdivision (h) excluded several categories of juvenile offenders from eligibility for a youth offender parole hearing, including juveniles who were sentenced to LWOP. (Former § 3051, subd. (h); Stats. 2013, ch. 312, § 4 (Senate Bill 260).) But on October 11, 2017, the Governor signed Senate Bill 394 into law. Senate Bill 394 expands the youth offender parole hearing process under Senate Bill 260 to persons under 18 years of age sentenced to LWOP. (Stats. 2017, Ch. 684, § 1.5.) To that end, Senate Bill 394 amends section 3051 to add subdivision (b)(4), which provides: "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 life without the possibility of parole shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (§ 3051, subd. (b)(4).)
The California Supreme Court examined the consequences of Senate Bill 260 in People v. Franklin (2016) 63 Cal. 4th 261 (Franklin). In Franklin, the defendant was 16 years old when he shot and killed another teenager. A jury convicted him of first degree murder and found true a personal firearm-discharge enhancement. He received two mandatory consecutive 25-year-to-life terms. (Id. at p. 268.) The defendant challenged his 50-year-to-life sentence on the ground it was the functional equivalent of LWOP and he should be afforded the protections outlined in Miller. (Franklin, at p. 276.) The California Supreme Court concluded Senate Bill 260 entitled the defendant to a parole hearing during his 25th year in prison and rendered moot any infirmity in his sentence under Miller. (Franklin, at p. 276.) According to the Supreme Court, Senate Bill 260 "means that [the defendant] is now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration. Such a sentence is neither LWOP nor its functional equivalent. Because [the defendant] is not serving an LWOP sentence or its functional equivalent, no Miller claim arises here." (Franklin, at pp. 279-280.) The court specifically noted the Legislature did not intend to require any additional resentencing procedures. (Ibid.)
B
In Uy's instant appeal, he claims his trial counsel rendered ineffective assistance at the resentencing hearing, and that the trial court did not apply the interpretation of Miller, supra, 567 U.S. 460 articulated in Montgomery, supra, 577 U.S. ___ . But the essence of his contentions is that he should not have been resentenced to LWOP. Senate Bill 394 has rendered the contentions moot.
Senate Bill 394 amended section 3051 to expressly provide that a person in Uy's situation is entitled to a youth offender parole hearing after 25 years of incarceration. (Stats. 2017, Ch. 684, § 1.5; § 3051, subd. (b)(4).) The language of the statute makes it clear that the Legislature intended youth offender parole hearings to apply retrospectively, that is, to all eligible youth offenders regardless of the date of conviction. (See Franklin, supra, 63 Cal.4th at p. 278; § 3051, subd. (b).) Similar to the defendant in Franklin, Uy is now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration. Thus, Uy is no longer serving an LWOP sentence or its functional equivalent, and no Miller claim arises here. (Franklin, at pp. 279-280.) Senate Bill 394 effectively affords Uy the relief he sought at resentencing, the least severe term for which he was eligible upon resentencing: 25 years to life. (§ 190.5, subd. (b).) Thus, except as discussed post, Uy's appeal is moot. (See People v. Lozano (2017) 16 Cal.App.5th 1286, rev. granted Feb. 21, 2018, S246013 [Senate Bill 394 rendered moot the argument that an LWOP sentence violated the Eighth Amendment because the defendant is no longer subject to LWOP].)
Uy nevertheless argues his appellate contentions have not been rendered moot because he will continue to suffer disadvantageous collateral consequences as a result of his sentence. In his supplemental brief, Uy asserts he may be subjected to reduced access to rehabilitative programs and job opportunities, severe movement and time-of-day restrictions, confinement in a more restrictive facility, and disqualification from compassionate medical release. He further asserts that his sentence is likely to have a negative effect on his prospects for parole, and that it cannot be assumed the newly-enacted section 3051, subdivision (b)(4) will be in effect at the time of his 25th year of incarceration. But his assertions, whether speculative or not, do not go to the essence of the instant appeal, the constitutional validity of his sentence.
Senate Bill 394 became effective January 1, 2018. The appellate record does not establish that the Department of Corrections and Rehabilitation has addressed how inmates subject to Senate Bill 394 will be treated. (See Franklin, supra, 63 Cal.4th at pp. 284-286 [declining to address certain arguments that the matter was not moot].) --------
However, we agree with defendant that a limited remand is warranted. Because defendant is now eligible for a youth offender parole hearing on his 25th year of incarceration (§ 3051, subd. (b)(4)), he is entitled to a sufficient opportunity to assemble a record of information about his characteristics and circumstances that will be relevant at the hearing. (See Franklin, supra, 63 Cal.4th at pp. 283-284 [providing examples of the type of information that will be relevant at a youth offender parole hearing].) Uy was originally sentenced in 2009 before the Supreme Court's decisions in Miller, supra, 567 U.S. 460 and Gutierrez, supra, 58 Cal.4th 1354, and at the resentencing hearing in March 2016, section 3051 did not authorize youth offender parole hearings for a person in Uy's situation. It is not clear whether Uy had a sufficient opportunity to make a record that will be relevant at a youth offender parole hearing. Accordingly, we will remand for the trial court to make that determination. (See Franklin, supra, 63 Cal.4th at p. 284.)
DISPOSITION
The matter is remanded for the limited purpose of allowing the trial court to determine whether Uy had a sufficient opportunity to make a record of information that will be relevant at a youth offender parole hearing. In all other respects, the judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
HOCH, J.