Opinion
No. D070804.
11-06-2017
RALPHS GROCERY COMPANY et al., Plaintiffs and Appellants, v. VICTORY CONSULTANTS, INC., et al., Defendants and Respondents.
[Modification of (21 Cal.App.5th 538, ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT. — IT IS ORDERED that the opinion filed herein on March 20, 2018, be modified in the following particulars:
1. In a published portion of the opinion, the paragraph commencing at the bottom of page 2 with "In the published portion" and ending at the top of page 3 [21 Cal.App.5th 541, advance report, 3d par., continuing onto p. 542] with "discussed in this opinion" is modified to read as follows:
In the published portion of this opinion, we hold that Diaz's conviction on count II need not be vacated as a lesser included offense of felony murder as charged in count I. In the unpublished portion, we hold: (1) The trial court did not err by refusing to bifurcate the gang enhancements; (2) Any error in the admission of gang-related evidence was harmless; (3) The trial court was not required to give CALCRIM No. 375 on its own motion regarding Pantoja's prior offenses; (4) Neither defendant is entitled to reversal based on a theory of cumulative prejudice or of ineffective assistance of counsel; (5) Diaz is entitled to have his case remanded to the juvenile court for a transfer hearing; (6) Whatever the outcome of the transfer hearing, the court must exercise discretion whether to strike the section 12022.53 enhancement as to Diaz, but Diaz is not entitled to have the enhancement stricken or its imposition barred; (7) Diaz's argument, that his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, is moot, but, if his case remains in a court of criminal jurisdiction, he is entitled to a limited remand pursuant to People v. Franklin (2016) 63 Cal.4th 261 [202 Cal.Rptr.3d 496, 370 P.3d 1053]; (8) In light of recent statutory amendments, Pantoja is entitled to a limited remand pursuant to Franklin; and (9) Clerical errors in both defendants' abstracts of judgment must be corrected. Accordingly, we affirm Pantoja's judgment in its entirety, but remand for the limited purpose of affording him the opportunity to make a record of information relevant to his eventual youth offender parole hearing. As to Diaz, we conditionally reverse his convictions and sentence and remand for further proceedings, as discussed in this opinion.
[21 Cal.App.5th 1135g]
2. On page 89, in an unpublished portion of the opinion [21 Cal.App.5th 545, advance report, unpub. portion of the opinion], the last sentence of the first full paragraph, the name "Diaz" is changed to the words "both defendants" and the word "him" is changed to the word "them" so that the sentence reads:
We also conclude, however, that both defendants should receive a limited remand to afford them an adequate opportunity to make a record of information that will be relevant to the parole authority as it fulfills its statutory obligations under those statutes.
3. On page 92, in an unpublished portion of the opinion [21 Cal.App.5th 545, advance report, unpub. portion of the opinion], following the first full paragraph and prior to the subheading "C. Clerical Errors in the Abstracts of Judgment " the following paragraphs are added:
At the time Pantoja was sentenced, he was not entitled to a youth offender parole hearing, as such hearings were limited to juvenile offenders who committed their controlling offenses before age 18. (§ 3051, former subd. (b)(3).) Pantoja was 18 years old at the time of the offenses in this case. Subsequently, the Legislature amended subdivision (b)(3) of section 3051 to require youth offender parole hearings for offenders who committed their controlling offenses before, first, age 23 (Stats. 2015, ch. 471, § 1, eff. Jan. 1, 2016) and, most recently, age 25 (Stats. 2017, ch. 675, § 1, eff. Jan. 1, 2018).
Because of the state of the law when Pantoja was sentenced, there was no mention of youthfulness at his sentencing hearing. In light of the recent statutory amendments, however, he is now entitled to the opportunity to make a record of information that will be relevant to his eventual youth offender parole hearing. (See Franklin, supra, 63 Cal.4th at p. 284.) We will remand his matter for that limited purpose.
4. On page 92, in an unpublished portion of the opinion [21 Cal.App.5th 545, advance report, unpub. portion of the opinion], following the now third full paragraph, after the sentencing ending "for that limited purpose" add as footnote 71 the following footnote:
71 Pantoja raised this issue in a petition for rehearing. We directed the Attorney General to respond. The Attorney General agreed Pantoja is entitled to a Franklin hearing, and expressly stated the People have no objection to a limited remand for that purpose. As a result, we conclude a modification of our opinion to so provide adequately resolves the issue, without the need for rehearing.
5. In the published disposition, the paragraph commencing at the bottom of page 93 with "As to Pantoja" and ending at the top of page 94 [21 Cal.App.5th
[21 Cal.App.5th 1135h]
546, advance report, par. 4, continuing to p. 547] with "to the appropriate authorities" is modified to read as follows:
As to Pantoja, the judgment is affirmed in its entirety. The matter is remanded to the trial court for the limited purpose of affording Pantoja an adequate opportunity to make a record of information that will be relevant to the parole authority as it fulfills its statutory obligations under Penal Code sections 3051 and 4801, subdivision (c). The trial court shall cause to be prepared an amended abstract of judgment that reflects that liability for victim restitution is joint and several, and that conviction on count II was by jury, and shall cause a certified copy thereof to be transmitted to the appropriate authorities.
This modification changes the judgment.
Appellant Pantoja's petition for rehearing is denied.