Filed 8/29/18 P. v. See CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Galen N. Farris, Nicholas Fogg and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

In 2009, our unpublished opinion in People v. See (Dec. 18, 2009, F055800), affirmed the judgment of appellant Lavang See, who had been convicted of murder (Pen. Code, § 187, subd. (a);[1] count 1) and conspiracy to commit murder (§ 182, subd. (a)(1) & § 187; count 2). He was 16 years old when these crimes occurred. He was initially sentenced to life without the possibility of parole (LWOP), plus 25 years to life for a firearm enhancement.

However, following Miller v. Alabama (2012) 567 U.S. 460, appellant was resentenced. On September 21, 2016, his LWOP was reduced to an indeterminate term of 25 years to life (§ 187, subd. (a); count 1) with an additional 25 years to life for the firearm enhancement (§ 12022.53, subds. (d) & (e)(1)).[2]

Two issues are raised in the present appeal. First, the parties agree, as do we, that a recent amendment to section 12022.53 applies to this matter. This amendment gives the trial court discretion to strike or dismiss the imposed firearm enhancement. (§ 12022.53, subd. (h).) We remand this matter so the trial court may exercise its new sentencing discretion. (§ 12022.53, subd. (h).)

The parties, however, disagree whether remand is necessary so appellant may have an opportunity to make a record of information relevant to his eventual youth offender parole eligibility hearing. (See § 3051, subds. (a)(1), (b)(3); People v. Franklin (2016) 63 Cal.4th 261 (Franklin).) Respondent argues appellant already had such an opportunity during his resentencing. In the interests of justice, we direct the trial court to determine whether appellant was afforded an adequate opportunity to make such a record. If not, the parties will be allowed an adequate opportunity to make a record consistent with Franklin, supra, 63 Cal.4th at p. 284. We otherwise affirm the judgment.

BACKGROUND

The facts underlying appellant’s convictions are largely immaterial to the issues raised in the present appeal. We provide a brief summary taken from our unpublished opinion in People v. See, supra, F055800.

On October 1, 2006, five Asian males approached the victim, Robert Trevino, who had been throwing a football with other neighborhood children on a residential street. Four of the males, including appellant, wore bandannas covering their faces from the nose down. One of the males, Chawa See, shot Trevino in the head from a short distance away. The five males fled. At trial, the prosecution’s gang expert opined that appellant and the other males involved in this killing were Oriental Troops gang members. According to the expert, Trevino was a Norteño gang member and this killing was gang motivated.

DISCUSSION

I. We Remand This Matter For The Trial Court To Exercise Its Discretion Regarding The Firearm Enhancement.

At the time of appellant’s 2016 resentencing in this matter, the trial court was required to impose an additional prison sentence for the firearm enhancement found true under section 12022.53. (Former § 12022.53, subds. (a)(1), (d), (e)(1)(A) & (B), & (h).) On October 11, 2017, however, the Governor approved Senate Bill No. 620 (Stats. 2017, ch. 682), which amended, in part, section 12022.53. Under the amendment, a trial court now has discretion to strike or dismiss this firearm enhancement. (§ 12022.53, subd. (h).) Via supplemental briefing, the parties agree, as do we, that this amendment applies retroactively to appellant because his case is not yet final. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090; People v. Robbins (2018) 19 Cal.App.5th 660, 678-679.)

The parties also agree, as do we, that remand is appropriate so the trial court may exercise its discretion. The amendment to section 12022.53 reflects a legislative determination that the previous bar on striking firearm enhancements was too severe, and trial courts should have the power to strike those enhancements in the interest of justice. (People v. Woods, supra, 19 Cal.App.5th at p. 1091.) Accordingly, we remand this matter for that limited issue.[3]

II. A Limited Remand Is Appropriate To Ensure Appellant Had A Meaningful Opportunity To Present Evidence Relevant To His Eventual Youth Offender Parole Eligibility Hearing.

Although the parties agree that a remand is appropriate for the trial court to exercise its discretion regarding the firearm enhancement, they disagree regarding appellant’s second issue.

Appellant requests a remand so that he may have an opportunity to make a record of mitigating evidence tied to his youth. Such evidence will be relevant to his future parole eligibility hearing pursuant to section 3051 and Franklin, supra, 63 Cal.4th 261. In the alternative, he argues he received ineffective assistance of counsel should we decide he already had a sufficient opportunity to make such a record. In contrast, respondent opposes a remand for this issue, claiming appellant already had an opportunity to present this information at his September 2016 resentencing. Respondent asserts that appellant cannot establish ineffective assistance of counsel. In the interests of justice, we believe a remand is appropriate to protect appellant’s rights.

Section 3051, enacted in 2013 (Stats. 2013, ch. 312, § 4), requires the Board of Parole Hearings (the Board) to conduct youth offender parole hearings for eligible offenders. (§ 3051, subd. (a)(1).) The statute specifies that the Board is to assess a youth offender’s “growth and maturity” in determining whether to grant parole. (Id., subd. (f)(1); see § 4801, subd. (c).) Appellant, who was 16 years old when he committed these offenses, is eligible for a youth offender parole hearing during his 25th year of incarceration. (§ 3051, subd. (b)(3).)

Franklin was decided about four months before appellant’s September 2016 resentencing in this matter. In Franklin, our Supreme Court explained that the new statutory parole scheme for youth offenders “contemplate[s] 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.” (Franklin, supra, 63 Cal.4th at p. 283; see § 4801, subd. (c).) This information can come from family members, friends, school personnel, faith leaders and people from community-based organizations who have knowledge about the defendant before the crime. (§ 3051, subd. (f)(2); see also Franklin, supra, 63 Cal.4th at p. 283.) Gathering this information is usually more easily done at or near the time of the juvenile offender’s offense rather than decades later because of fading memories, deaths, lost or destroyed records, or witnesses relocating. (Franklin, supra, at pp. 283-284.) At the time of the parole eligibility hearing, the Board is to consider any “‘subsequent growth and increased maturity’” about the juvenile offender. (Id. at p. 284.)

In this case, section 3051 was in effect when appellant was resentenced in September 2016 and Franklin had already been decided. As respondent concedes, however, no mention of Franklin or appellant’s eventual youth offender parole hearing appears in this appellate record. Further, as appellant notes, the only contested issue at his resentencing was whether 50 years to life was an appropriate sentence. While the probation report discusses some of appellant’s characteristics and circumstances at the time of the offense, it makes no mention of Franklin or appellant’s future parole eligibility hearing.

Although appellant was resentenced about four months after Franklin was issued, it is not clear that appellant had “sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at p. 284.) Neither the trial court nor the parties made any reference to such a hearing, and it was not discussed whether appellant had any additional evidence that should be preserved for later review. In the interest of justice, we will direct the trial court to determine whether appellant had an adequate opportunity to make an accurate record of the information contemplated in sections 3051 and 4801, and Franklin, supra, 63 Cal.4th at pp. 283-284.

As our Supreme Court explained in Franklin, if the trial court determines that appellant did not have sufficient opportunity to make an accurate record of this information, “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.” (Franklin, supra, 63 Cal.4th at p. 284.) Appellant may place on the record any documents, evaluations or testimony (subject to cross-examination) that may be relevant to his eventual Board hearing. (Ibid.) The prosecution may also put on the record any evidence that demonstrates appellant’s “culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.” (Ibid.) The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of appellant’s “characteristics and circumstances at the time of the offense” so that the Board may later determine whether appellant is eligible for parole. (Ibid.)

Based on this record, and to ensure that justice is done, we remand this matter so the trial court can determine whether appellant was afforded an adequate opportunity to make a record of information that will be relevant to his eventual youth offender parole eligibility hearing.[4] If the court determines appellant did not have such an opportunity, it shall allow the parties an adequate opportunity to make such a record consistent with Franklin, supra, 63 Cal.4th at p. 284.[5]

DISPOSITION

This matter is remanded to the trial court for the limited purpose of determining whether appellant was afforded an adequate opportunity to make a record of information that will be relevant to his eventual youth offender parole eligibility hearing and, if not, to give the parties an adequate opportunity make such a record consistent with Franklin, supra, 63 Cal.4th at p. 284.

This matter is further remanded to the trial court for the limited purpose of allowing the court to consider whether to strike or dismiss the firearm enhancement imposed pursuant to section 12022.53. (§ 12022.53, subd. (h).) If the court strikes or dismisses the firearm enhancement, then the court shall resentence appellant accordingly and shall forward an amended abstract of judgment to the appropriate authorities. If the court declines to strike or dismiss the enhancement, appellant’s previously imposed sentence shall remain in effect. In all other respects, the judgment is affirmed.

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LEVY, Acting P.J.

WE CONCUR:

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PEÑA, J.

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SMITH, J.