The court sentenced defendant to an aggregate state prison term of 40 years to life, consisting of a 15-year-to-life term for second degree murder and a consecutive 25-year-to-life term for vicariously using a firеarm in that crime; concurrently with count 1, a five-year term for attempted murder and a 25-year-to-life enhancement for vicariously using a firearm in that crime; and, also concurrently with count 1, a three-year term for shooting at an occupied vehicle and a 25-year-to-life enhancement for vicariously using a firearm in that crime. The court dismissed for sentencing purposes the gang enhancement to counts 1, 2, and 3. It imposed and stayed execution of sentence on the street terrorism conviction pursuant to section 654. Judgment was entered in April 2015. Defendant appealed.
While that appeal was pending, the electorate passed Proposition 57, the Public Safety and Rehabilitation Act of 2016, which went into effect in November 2016. ( People v. Superior Court (Lara ) (2018)
In March 2017, we issued an opinion affirming the judgment. ( People v. Phung (2017)
In October 2017, defendant requested another round of supplemental briefing, this time on the retroactivity of Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620), which amended the law so that courts now have discretion to strike firearm enhancements,
In February 2018, the California Supreme Court issued Lara,
In section I of the "DISCUSSION" section of this opinion, we repeat the analysis from our original opinion affirming the judgment. In section II of the "DISCUSSION" section, we conclude that both Proposition 57 and SB 620 retroactively apply to defendant. Accordingly, we reverse and remand to hold a transfer hearing and to resentence defendant, as explained in greater detail post .
FACTS
The Shooting
On March 20, 2011, about 20 people were partying at Andrew Tran's home, including defendant (a TRG member) and Leesa Huynh. The people talked about "getting back at" rival gang Power of Vietnamese (POV) because POV had thrown a brick through a window of a TRG member's house, injuring the member's "little sister."
Around 11:00 p.m., Huynh left the party in a car driven by Tran. There were three other passengers in Tran's car-Benjamin Nguyen, Jonathan Tieu, and Skyler Avila. Nguyen gave Tran a gun, which Tran hid in the dashboard
Tran's group stopped at a restaurant, where they were joined by three or four other cars of people from the party, including Hellside gang members. From there, they drove to the parking lot of a pool hall where POV members were known to hang out at times. Tran's car arrived at the pool hall first. Eventually, there might have been a total of six or seven cars there.
Tran, Tieu, and Nguyen got out of the car and shouted at people in the pool hall, yelling, "Tiny Rascal Gang," "T.R.G., what's up?", and "Fuck VT." Huynh thought the men were shouting at people in TRG's rival gangs, i.e., POV, Asian Family (AF), and Viets Together (VT).
Tran and the others got back into the car. Nguyen sat in the front passenger seat. Tran repositioned his car in the parking lot. His car and several other vehicles formed a "barricade" that served as a "check point" for other vehicles trying to exit the parking lot.
One car drove by the barricade. Someone in Tran's car said, "That's not them." Then an SUV (sport-utility vehicle) drove by. Tran said, "That's them," and drove after the SUV onto Westminster Boulevard. Together with Tran's car, at least two other cars chased the SUV. When the SUV was in the middle lane, Tran's car
Tran's car pulled up to the driver's side of the SUV. Nguyen shouted at the people in the SUV through the car's open window, asking what gang they were from. Nguyen had the gun Huynh had seen earlier. Inside the SUV, Scottie Bui (a POV gang member) said, "It's Puffy [Tran] and C.J. [Tien Phung]."
Huynh heard five gunshots emanate from the passenger side of Tran's car. The SUV's driver told everyone to duck down. Two guys were "hit," including Bui. The SUV's occupants drove an unresponsive Bui to the hospital, carried him "over there," and left. Bui died from a gunshot wound to the head. Another male suffered great bodily injury from a shot to his neck.
After the shooting, the Tran group drove to a house in the "neighborhood," and then to get doughnuts, along with some other people who had been with them at the party and the pool hall.
At trial, a TRG member (who pleaded guilty to attempted murder and street terrorism based on thе above underlying crimes) testified that TRG
Defendant's Police Interview
Almost three months later, on June 16, 2011, a police officer interviewed defendant. A video recording of the interview was played for the jury and a transcript was distributed. In the interview, defendant gave the officer the following account of his relationship with TRG and the events of the night of March 20, 2011 and the early morning hours of March 21, 2011.
Defendant was 17 years old and had been on probation since he was 13 or 14 years old. Defendant did not associate with TRG; he had "stopped hanging out with them since [his] last incident .... [He] helped the other detective, [he] went to school, [he] got [his] laser [tattoo] removed ...." He had already had 14 painful laser treatments to remove a TRG tattoo from his back.
Defendant was at the party the night of the shooting, but left to go to his then girlfriend's house because her mother was away from the home. He paid Cynthia to drive him to the girlfriend's house.
With defendant in the backseat, they went to a McDonald's restaurant and then to the pool hall after learning that VT, POV, and AF members were there. Defendant anticipated his group would "jump" (fight) the rival gang members. He went there to back up TRG. He knew his help was not needed because the rivals' single car was out-numbered by defendant's fellow gang members' five cars. But he would have jumped in to help if needed.
His brother "came out of nowhere," stopped the car, and asked "what the hell is going on." There were a lot of cars and confusion; people passing by said that a Lexus SUV was the enemy car. Tran's car was "right behind it." Defendant heard
Defendant had started "kicking it" with TRG in 2008. He was "the good one" in his family, the only one with "a high school diploma." His older brother, Tien Phung, did not want him to "screw up" his life, so Tien Phung only let him associate with the gang. Defendant's girlfriend let him "hang out" with TRG, but would not let him join it. As a result of defendant's association with the gang, he would back thеm up because he would expect the same from them. Hellside had the "straps," i.e., guns. TRG did not "hook[ ] up" with Hellside, but the two gangs had the same enemies.
Expert Testimony
The People's gang expert described Asian street gang culture and behavior in general, and TRG in particular. The expert explained that Asian gangs are very mobile and do not have a neighborhood, but instead hang out at certain places like pool halls and restaurants. They are secretive about their gang affiliation and do not openly claim their gang, although they do get tattoos and dress in a gang-identifiable way. If a gang is victimized by a rival gang, they lose respect and have to use equal or greater violence against that rival.
The expert opined that TRG is a criminal street gang in Orange County and other places, and that defendant and his brother Tien were active members of TRG on the date of the shooting. TRG's enemies аre VT, POV, and AF. TRG gets along with Hellside and True (or Tiny) Oriental Posse. Most TRG members are between 15 and 21 years old. TRG's primary activities include murder, assault with a deadly weapon, illegal possession of firearms, and narcotic sales.
DISCUSSION
I
The Original Opinion
Defendant's Eighth Amendment Challenge to his Sentence Lacks Merit
Defendant contends that the "statutorily mandated imposition" on him of an "enhanced 40-year-to-life prison term for second degree murder as a passive aider-abettor, under a 'natural and probable consequences' theory of criminal liability, based on disturbing the peace," which includes a 25-year-to-life vicarious gun discharge enhancement, "with no statutory discretion
1. The sentencing hearing
At the sentencing hearing (which took place when defendant was 21 years old), defense counsel argued the court's tentative sentence of 40 years to life appeared to be "grossly disproportionate to the conduct," in light of defendant's "conduct" and "background." Defense counsel argued: "[T]he home life that this man had was
The prosecutor argued that this event was "based on a bunch of people who didn't really do anything, and yet we have a dead body and another young man shot in the neck." Responsibility "is shared when a group of people get together and make an event more likely to occur ...." The size of the group and "cloud of anonymity" increase the chances of a gang succeeding without individual detection.
The probation report (which the court had considered) gave the following information about defendant's personal and family circumstances. His probation officer first began supervising him when he was 14 years old. At that
The trial court found a 40-year-to-life term was not a life without possibility of parole sentence nor was it a "de facto" life sentence (in light of defendant's life expectancy of 76 years, as well as the statutory "juvenile parole hearing"). The court believed it had the discretion to impose a lesser sentence. The court stated it had "considered the defendant's youth, the attend[ant
2. Applicable law
The Eighth Amendment's ban on "cruel and unusual punishment" prohibits (1) the death penalty for any juvenile offense (See Roper v. Simmons (2005)
As to all the above LWOP restrictions, a "State need not guarantee the
The rationale for this special treatment of juvenile offenders is that "children are constitutionally different from adults for purposes of sentencing" in at least three ways. ( Miller , supra ,
In Caballero , the California Supreme Court "urge[d] the Legislature to enact legislation establishing a parole eligibility mechanism that provides a defendant serving a de facto [LWOP sentence for juvenile] nonhomicide crimes ... with the opportunity to obtain release on a showing of rehabilitation and maturity." ( Caballero , supra ,
Section 3051, subdivision (a)(1) provides, "A youth offender parole hearing is a hearing by the Board of Parole Heаrings for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense."
Section 4801, subdivision (c) provides, "When a prisoner committed his or her controlling offense ... prior to attaining 23 years of age, the board, in reviewing a prisoner's suitability for parole ..., shall 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 prisоner in accordance with relevant case law."
Sections 3051 and the amended section 4801 became effective on January 1, 2014, approximately 15 months before defendant was sentenced on April 3, 2015.
While this appeal was pending, the California Supreme Court decided Franklin , supra ,
3. Under Franklin , defendant's challenge to his sentence lacks merit
After we granted defendant's motion to submit supplemental briefing on Franklin's effects (if any) on this case, both parties submitted supplemental
As to defendant's "stare decisis" contention, he argues that Franklin did not decide the exact issue presented here, i.e., whether a "severe non -LWOP indeterminate life sentence[ is] subject to the sentence-mitigating considerations of Miller by logical extension." He notes that in Franklin , the defendant argued his 50-year-to-life term was the functional equivalent of an LWOP sentence ( Franklin , supra ,
The problem with defendant's argument is that, in the vast majority оf cases, a judge will be unable to determine, at the time of sentencing, whether the juvenile offender suffers only from transient immaturity as opposed to irreparable corruption. This is 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.' " ( Miller , supra , 567 U.S. at pp. 479-480,
In sum, Franklin does not contravene Miller . And, in any case, defendant did, in fact, recеive individualized sentencing from the trial judge, who expressly considered "defendant's youth," "the atten[dant] circumstances" in this case, "the nature of the crime," his "lesser culpability in this case because he's an aider and abettor as opposed to a perpetrator," "a juvenile's greater capacity for change," and defendant's criminal history (which started "at age 13"). Accordingly, under the rationale of Franklin , and the individualized sentencing defendant received, his constitutional challenge to his sentence lacks merit.
Defendant's Punishment for Count 3 Is Not Barred by Section 654
Defendant contends his concurrent sentence for the count 3 crime of
Sеction 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Section 654 " 'literally applies only where [multiple] punishment arises out of multiple statutory violations produced by the "same act or omission." [Citation.] However, ... its protection has been extended to cases in which there are several offenses committed during "a course of conduct deemed to be indivisible in time." [Citation.]' " ( People v. Hicks (1993)
A defendant's criminal objective should not be defined too broadly and amorphously. In People v. Perez (1979)
In People v. Trotter (1992)
Here, substantial evidence shows a separate intent and objective for murder,
Two persons in the SUV were struck by bullets. Those two persons were the named murder (count 1) and attempted murder (count 2) victims. Each of the five gunshots involved a consecutive (albeit similar) intent and objective. As in Trotter (and in the Attorney General's words), "each shot fired at the SUV was a separate trigger pull, accompanied by a separate intent and objective, and constituted a separate risk to its passengers ...."
Thus, we conclude the court properly punished defendant for count 3.
Defendant's Abstract of Judgment Must Be Corrected
Defendant сorrectly points out that his abstract of judgment incorrectly describes his conviction for count 3 as discharging a firearm at an "inhabited dwel[ling]." We will direct the trial court to correct defendant's abstract of judgment to accurately describe his conviction for count 3 as shooting at an "occupied motor vehicle."
Proposition 57, and SB 620
"In November 2016," while the appeal in this case was pending, "the electorate passed Proposition 57, the 'Public Safety and Rehabilitation Act of 2016'
We must decide whether this part of Proposition 57 applies retroactively to benefit defendant. In Estrada , supra ,
The Lara court expressly approved of the disposition reached in Vela , supra ,
After we recalled the remittitur in this case, and thus when the case was not final, Governor Brown signed SB 620 into law, which took
DISPOSITION
The judgment is conditionally reversed. The cause is remanded with instructions that it be transferred to the juvenile court to conduct a transfer hearing no later than 90 days from the filing of the remittitur.
If, at the transfer hearing, the juvenile court determines that it would not have transferred defendant to a court of criminal jurisdiction, then defendant's criminal convictions and enhancements will be deemed juvenile adjudications as of the date of the verdict. The juvenile court shall exercise its discretion pursuant to SB 620 in deciding whether to strike the firearm enhancements. The juvenile court is then to conduct a dispositional hearing within its usual timeframe.
WE CONCUR:
O'LEARY, P. J.
MOORE, J.
Notes
All statutory references are to the Penal Code unless otherwise stated.
The Vela opinion was later partially published after transfer from the Supreme Court. (People v. Vela (2018)
(Stats. 2017, ch. 682, §§ 1, 2, eff. Jan. 1, 2018.)
The gang expert identified Cynthia as Cynthia Sipaseuth.
Miller did not decide the appellants' "alternative argument that the Eighth Amendment requires a categorical bar on [LWOP] for juveniles, or at least for those 14 and younger." (Miller , supra ,
Prior to a 2015 amendment, sections 3051 and 4801 applied to inmates who were under 18 years of age at the time of the offense. (Stats. 2015, ch. 471.)
The Franklin defendant was sentenced before sections 3051 and the amended 4081 became effective.
Defendant argues, "Although Graham and Miller specifically address LWOP situations, their open-ended language about the 'most serious penalties,' 'harshest sentences,' or 'most severe punishments' can be read reasonably to extend logically beyond LWOP and death-penalty cases to other harsh or severe indeterminate-life sentences imposed mandatorily on juveniles like" him. We note, first, that defendant does not dispute the Attorney General's statemеnt that "no court has held that a sentence of 40 years to life for a juvenile offender is cruel and unusual."
Defendant nevertheless argues that his effective term of 25 years to life under section 3051 is excessive, or grossly disproportionate, punishment "when the particular circumstances of his life and his crime are viewed through the youth-based sentence-mitigating lens of Miller ." He stresses that, unlike the defendant in Franklin , he "was not the actual shooter/killer, but someone sitting in the back seat of a vehicle that was not involved in the shooting but was removed from where the shooting took place." But, although Franklin was indeed the actual shooter/killer (Franklin , supra ,
In terms of factual distinctions between Franklin and the case at hand, although defendant here was not the actual shooter, he knew that rival gang members were at the pool hall and he went there to back up TRG and to jump in if needed. When he thought that the actual shooter had missed the target, he felt terrible. At the time of the shooting, defendant was 17 years and seven months old, just five months shy of adult status. Miller's youth-based sentence-mitigating factors do not entitle defendant to a parole hearing prior to the 25th year of his sentence (for example, during the 15th year of his sentence, if his mandatory 25-to-year-life gun enhancement under section 12022.53, subdivisions (d) and (e)(1) [regarding gang members], were held to violate the Eighth Amendment). Defendant's appellate counsel acknowledges he is "unaware of any reported decision authorizing a sentencing court in a murder case to mitigate a juvenile's automatic indeterminate-life punishment under section 12022.53[, subdivisions] (d)/(e)(1) when the resultant enhanced sentence is not a de facto or de jure LWOP sentence."
In his supplemental reply brief, defendant places great reliance on the U.S. Supreme Court's recent decision in Montgomery v. Louisiana (2016) 577 U.S. ----,
Montgomery held that "Miller announced a substantive rule that is retroactive in cases on collateral review." (Montgomery , supra , 577 U.S. at p. ----,
Montgomery does state: "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." ' [Citations.] 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," ' [citations], 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." (Montgomery , supra , 577 U.S. at p. ----,
The above excerpt from Montgomery cites to the passage in Miller which recognizes the difficulty of distinguishing at an early age between an immature but remediable juvenile and an irreparably incorrigible one. Wе decline to place inordinate reliance on Montgomery's shorthand summary of what Miller says, rather than on Miller's own language in its original context.
Because defendant did not lodge a section 654 objection below to the concurrent sentence on count 3, the court made no finding on the issue. Nonetheless, defendant may raise the issue on appeal. (Scott , supra ,
Because the gunshots reflected separate intents and objectives, we do not address the Attorney General's alternative argument the multiple victim exception applies. As to this exception, defendant argues: "Trotter pertained to three counts of assault on a peace officer, each of which counts involved a specific victim (the identical officer). Unlike the counts in Trotter , the section 246 count here has no named victim and needs none." Nonetheless (and without commenting on the merits of that argument), we simply repeat that Trotter's analysis concerning the separate intent and objective test is applicable to the case at hand.