25 Cal.App.5th 741
Cal. Ct. App.2018Background
- In 2011, 17‑year‑old Tom Phung (a Tiny Rascal Gang member) rode in a multi‑car group that chased an SUV occupied by rival gang members; a TRG member two cars ahead shot and killed one person and gravely wounded another. Phung was convicted as an aider and abettor of second‑degree murder, attempted murder, shooting at an occupied motor vehicle, and street terrorism, with vicarious 25‑to‑life firearm enhancements; aggregate sentence 40 years‑to‑life.
- At sentencing (when Phung was 21) the court considered youth and Miller factors but imposed the enhanced indeterminate term; defendant appealed.
- While the appeal was pending, Proposition 57 (2016) barred direct adult‑court filing against minors and required juvenile transfer hearings; SB 620 (effective Jan. 1, 2018) granted courts discretion to strike certain firearm enhancements.
- The Court of Appeal recalled its remittitur after appellate counsel conceded ineffective assistance for failing to raise retroactivity issues and solicited supplemental briefing on Prop 57 and SB 620.
- The California Supreme Court in Lara held Prop 57 retroactive under In re Estrada; the parties and this court agreed Estrada also makes SB 620 retroactive.
- The Court conditionally reversed and remanded for a juvenile transfer hearing (within 90 days). If juvenile court would have transferred, convictions are reinstated in criminal court and defendant is to be resentenced with SB 620 discretion; if not transferred, convictions convert to juvenile adjudications and the juvenile court shall consider SB 620 when exercising its discretion and then hold disposition.
Issues
| Issue | People’s Argument | Phung’s Argument | Held |
|---|---|---|---|
| Retroactivity of Proposition 57 (transfer hearing requirement) | Prop 57 need not apply retroactively; convictions should stand | Prop 57 reduces punishment/process and thus applies retroactively under Estrada | Applied retroactively per Lara/Estrada; remand for juvenile transfer hearing |
| Retroactivity of SB 620 (judicial discretion to strike firearm enhancements) | SB 620 is not retroactive | SB 620 reduces punishment and should apply retroactively | Applied retroactively; trial court (or juvenile court on remand) must exercise discretion under SB 620 |
| Eighth Amendment challenge to 40‑to‑life sentence for juvenile aider/abettor | Sentence is lawful given statutory scheme; Miller/Caballero protections satisfied by parole statutes | 40‑to‑life with 25‑to‑life enhancement is disproportionate; Miller requires individualized mitigation at sentencing | Claim lacks merit: sections 3051/4801 and Franklin supply a meaningful parole opportunity and trial court considered youth; no Miller violation found |
| Section 654 (double punishment for shooting‑related counts) | Multiple counts reflect separate shots/risks — separate punishment allowed | Concurrent punishment for shooting at occupied vehicle should be stayed as same conduct | Held that multiple shots reflected separate intents/objectives; §654 did not bar punishment for count 3; abstract of judgment to be corrected to "occupied motor vehicle" |
Key Cases Cited
- Miller v. Alabama, 567 U.S. 460 (juveniles' diminished culpability requires special sentencing consideration)
- Graham v. Florida, 560 U.S. 48 (LWOP unconstitutional for juvenile nonhomicide offenders)
- Roper v. Simmons, 543 U.S. 551 (death penalty unconstitutional for juveniles)
- In re Estrada, 63 Cal.2d 740 (statute reducing punishment applies retroactively to nonfinal judgments)
- People v. Caballero, 55 Cal.4th 262 (youth parole‑eligibility concerns for juvenile offenders)
- People v. Franklin, 63 Cal.4th 261 (post‑Legislature juvenile parole statutes moot certain Miller claims)
- People v. Lara, 4 Cal.5th 299 (held Prop 57 retroactive and approved Vela's approach)
- People v. Vela, 21 Cal.App.5th 1099 (remand for juvenile transfer hearing where Prop 57 applies)