69 Cal.App.5th 483
Cal. Ct. App.2021Background
- In 1997, 17‑year‑old David Lee Harring Jr. shot two brothers; one died. He was convicted in 1998 and sentenced to life without parole (LWOP).
- In 2018 Harring petitioned under Penal Code § 1170(d)(2) for recall and resentencing, asserting (a) no prior juvenile felony adjudications for assault or other felonies with significant potential for personal harm (§ 1170(d)(2)(B)(ii)) and (b) evidence of rehabilitation (§ 1170(d)(2)(B)(iv)).
- Harring had a March 1997 juvenile adjudication: he admitted second‑degree commercial burglary (robbery charge dismissed); later papers and the People alleged he shoved/struck a security guard during that incident.
- The People opposed, relying on background reports and a police report suggesting assaultive conduct; the trial court found Harring failed to prove either attestation by a preponderance and denied the petition.
- On appeal the Court of Appeal considered whether § 1170(d)(2)(B)(ii) permits consideration of unadjudicated underlying conduct (versus only the elements of the adjudicated juvenile felony) and whether second‑degree burglary falls within the statute’s disqualifying category.
- The court reversed: it held the statute limits the inquiry to the crime adjudicated and its elements, and second‑degree burglary (as charged/admitted) does not by its elements present a significant potential for personal harm; the matter was remanded for a § 1170(d)(2) resentencing hearing.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Harring) | Held |
|---|---|---|---|
| Scope of inquiry under § 1170(d)(2)(B)(ii): may the court consider unadjudicated facts about a juvenile offense? | Court may consider the full record (police/probation reports) and unproven conduct to determine whether the prior adjudication involved significant potential for harm. | Statute limits inquiry to the statutory elements of the juvenile adjudicated felony; unproven facts outside the adjudication should not be considered. | The court held the statute requires examination only of the adjudicated crime and its elements, not collateral unadjudicated conduct. |
| Does a juvenile adjudication for second‑degree burglary qualify as a "felony crime[] with a significant potential for personal harm to victims" under § 1170(d)(2)(B)(ii)? | The People argued Harring’s juvenile offense involved assaultive conduct (pushing/punching a guard) so it should disqualify him. | Burglary’s elements do not involve an act that by its nature creates physical harm; burglary adjudication alone does not fall within the § 1170(d)(2)(B)(ii) exclusion. | The court held second‑degree burglary, by its elements, does not involve the physical conduct that creates a risk of personal harm and thus does not disqualify Harring under subparagraph (ii). |
| Whether the trial court’s disposition functioned as a resentencing in violation of Miller v. Alabama (Eighth Amendment) | Trial court did not resentence; no Miller claim applies. | If the ruling effectively reimposed LWOP without Miller‑compliant exercise of discretion, constitutional error occurred. | Court found no resentencing occurred (petition denied at threshold), so no Miller error. |
| Whether Harring is entitled to a Franklin hearing to create a youth‑factor record for parole | People: Harring had an evidentiary hearing and may obtain Franklin relief by motion if appropriate. | Harring sought a Franklin record to preserve youth‑related evidence for parole. | Court declined to order a Franklin hearing on appeal; Harring remains free to request such a hearing in the trial court under In re Cook. |
Key Cases Cited
- Jensen v. Superior Court, 92 Cal. App. 4th 262 (Cal. Ct. App. 2001) (refused to go beyond a juvenile adjudication to treat unproven facts as qualifying prior offenses)
- Johnson v. United States, 576 U.S. 591 (U.S. 2015) (explains problems with a residual clause requiring courts to assess an offense by imagined ordinary conduct)
- Franklin v. Terhune, 63 Cal. 4th 261 (Cal. 2016) (youth‑offender parole scheme and remand to create a record of youth‑related information)
- In re Cook, 7 Cal. 5th 439 (Cal. 2019) (offenders with final convictions may move in trial court for Franklin hearings)
- Miller v. Alabama, 567 U.S. 460 (U.S. 2012) (Eighth Amendment requires sentencing discretion and consideration of youth for juvenile homicide offenders)
- People v. Williams, 26 Cal. 4th 779 (Cal. 2001) (articulates assault elements: an act that by its nature would directly and probably result in application of physical force)
- People v. Chance, 44 Cal. 4th 1164 (Cal. 2008) (assault can be complete without actual physical injury)