THE PEOPLE, Plaintiff and Respondent, v. TRAVIS SEPULVEDA, Defendant and Appellant.
B289160
COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SEVEN
Filed 4/1/20
CERTIFIED FOR PUBLICATION
(Los Angeles County Super. Ct. No. LA078936)
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
Travis Sepulveda was convicted following а jury trial of one count of first degree murder, three counts of attempted
On appeal Sepulveda, who was 18 years old at the time of the attempted murders and 21 years old when he committed murder, contends the cause should be remanded for a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin) because his counsel stipulated, without his consent, to limit information regarding youth-related mitigating factors to a written submission following the sentencing hearing. That procedure, he argues, violated his constitutiоnal rights to due process, to present a defense, to cross-examine witnesses and to be present at a critical stage of the criminal proceeding. Sepulveda also contends it was “per se ineffective assistance of counsel” not to present any of the available mitigating evidence at the sentencing hearing.1 We affirm.
1. The Commitment Offenses
Testimony at trial established that on November 14, 2011 Sepulveda, a member of the West Sidе Reseda gang, and two other gang members drove down a street in the territory of the Canoga Park Alabama gang, one of the West Side Reseda gang‘s rivals. Sepulveda from the front passenger seat and his confederate sitting in the rear seat fired weapons at a group of people standing on the sidewalk, including Manual Hernandez, Cesar Martinez and Angel Martinez. Hernandez and Cesar Martinez were struck by the gunfire; both survived, but Martinez‘s injuries confined him to a wheelchair.
On August 16, 2014 Sepulveda issued a gang challenge during a party to John Medina, who was wearing a hat associated with a rival gang. Sepulveda ordered Medina to take off his hat. Medina refused and punched Sepulveda. Sepulveda pulled out a gun and shot Medina and then shot Medina a second time as he attempted to run away. Medina died from the two gunshot wounds.
Sepulveda did not testify and presеnted no defense at trial.
On January 20, 2017 the jury convicted Sepulveda of the premeditated murder of Medina (
2. Sentencing Proceedings
The People submitted a sentencing memorandum on March 17, 2017. Citing a number of aggravating factors, including that the crimes involved great violence and a high degree of callousness (
Follоwing several continuances of the sentencing hearing at Sepulveda‘s request, on July 18, 2017 the trial court appointed
At the outset of the hearing on February 15, 2018, the court stated, “It was stipulated between the parties that you‘re going to submit to the court documentation on his eligibility, factors to be considered for eligibility of parole, when he‘s eligible for parole, at a future date in the form of documentаry evidence that would be part of the court file and not subject to live testimony or cross-examination.” Defense counsel responded, “That‘s correct” and estimated the material would be submitted in “about three weeks or a month.” The prosecutor also confirmed the stipulation.
After the court heard victim impact statements, it asked defense counsel if he had anything to present. Counsel responded, “Not at this time.”
Thе court then commented, “The Legislature passed a law that says that at some point, for anyone who is 25 years or younger, is eligible for parole. There is nothing the court can do
The court sentenced Seрulveda to an aggregate indeterminate state prison term of 90 years to life: 25 years to life for the first degree murder of Medina, plus a consecutive term of 25 years to life for the
On April 4, 2018 Sepulveda‘s defense counsel filed a lengthy memorandum on youth-related mitigating factors, supported by psychological and educational assessments, school records and interviews with Sepulveda‘s family.4 Neither
DISCUSSION
1. Senate Bill No. 260, Franklin and Evidence Preservation Proceedings for Youth Offenders
In Graham v. Florida (2010) 560 U.S. 48, 74 [130 S.Ct. 2011, 175 L.Ed.2d 825] (Graham) the United States Supreme Court, emphasizing a juvеnile offender‘s “capacity for change and limited moral culpability,” held it violated the Eighth Amendment‘s prohibition of cruel and unusual punishment to impose a sentence of life without parole (LWOP) on a juvenile offender who did not commit homicide.5 Two years later in Miller v. Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller), the Supreme Court held it also violated the Eighth Amendment to impose a mandatory LWOP sentence on a juvenile in a homicide case because that penalty “precludes сonsideration of [the juvenile‘s] chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” (Id. at p. 477.) Shortly after Miller, the California Supreme Court in People v. Caballero (2012)
To bring juvenile sentencing in California into conformity with Graham, Miller and Caballero, the Legislature enacted Senate Bill No. 260 (2013-2014 Reg. Sess.), effective January 1, 2014, adding sections
Because these provisions for a youth offender parole hearing meant that Tyris Franklin, sentenced to a mandatory term of 50 years to life for shooting and killing another teenager when Franklin was 16 years old, was “now serving a life sentence that includes a meaningful opрortunity for release during his 25th year of incarceration,” his sentence was “neither LWOP nor its functional equivalent.” (Franklin, supra, 63 Cal.4th at pp. 270-280.) Accordingly, the Court ruled, “no Miller claim
Because Franklin‘s constitutional challenge to his sentence had been mooted by the Legislature‘s provision through statute for a youth offender parole hearing during his 25th year of incarceration, the Court held, there was no need to resentence him; his two consecutive 25-year-to-life sentences remained valid. Nonetheless, the Court continued, “In directing the Board to ‘give great weight to the diminished culpability of juvenilеs as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner’ ([
Since it was not clear whether Franklin had been afforded a sufficient opportunity to make a record of information relevant
2. Counsel‘s Stipulation To File the Franklin Package After the Sentencing Hearing and Without Presentation оf Live Testimony Did Not Violate Sepulveda‘s Constitutional Rights
In his opening brief Sepulveda argues presentation of youth-related mitigating information as contemplated by Franklin is, in essence, an aspect of the sentencing hearing and, as such, directly implicates a defendant‘s fundamental due process rights, including to be present at the hearing, to present a defense and to cross-examine witnesses—rights that cannot be waived by counsel without the client‘s consent. (See generally People v. Farwell (2018) 5 Cal.5th 295, 300-301.) Because he did not expressly agree to the procedure adopted by his counsel to
Sepulveda‘s argument misperceives the nature of the Franklin proceeding. As the Supreme Court emphasized in In re Cook (2019) 7 Cal.5th 439 (Cook), “[T]he proceeding we outlined in Franklin derives from the statutory provisions of sections 3051 and 4801,” not the defendant‘s due process or other constitutional rights. (Cook, at p. 459; see People v. Rodriguez (2018) 4 Cal.5th 1123, 1132 [“[w]e expressed no view in Franklin, and we need not express any view here, on whether such a remand is constitutionally required”].) Indeed, “a Franklin proceeding is unrelated to the validity of the defendant‘s sentence.” (Cook, at p. 451.) The purpose of providing an opportunity to present youth-related factors mitigating culpability is not to influence the trial court‘s discretionary sentencing decisions but to preserve information relevant to the defendant‘s eventual youth offender parole hearing. (See Rodriguez, at p. 1131;8 Franklin, supra, 63 Cal.4th at pp. 283-284.)
The trial court properly exercised its discretion here, accepting defense counsel‘s proposal, with the agreement of the prosecutor, to submit the relevant information in written form without live testimony or cross-examination. This procedure did not violate Sepulveda‘s constitutional rights.
To establish ineffective assistance of counsel, a defendant must show that counsel‘s representation fell below an objective standard of reasonableness under prevailing professional norms, and counsel‘s deficient performance was prejudicial, that is, there is a reasonable probability that, but for counsel‘s failings, the result would have been more favorable to the defendant. (People v. Rices (2017) 4 Cal.5th 49, 80; People v. Mickel (2016) 2 Cal.5th 181, 198; see Strickland v. Washington (1984) 466 U.S. 668, 687-692 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
“On direct appeal, if the record “sheds no light on why counsel acted or failed to act in the manner challenged,” we must reject the claim “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.””” (People v. Caro (2019) 7 Cal.5th 463, 488; accord, People v. Mickel, supra, 2 Cal.5th at p. 198 [“a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had “no rational tactical purpose” for an action or omission”].) Accordingly, “except in those rare instances where there is no conceivable tactical purpose for counsel‘s actions, claims of ineffective assistance of counsel should be raised on habeas corpus, not on direct appeal.” (People v. Lopez (2008) 42 Cal.4th 960, 972; see People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [appellate court should not find ineffective assistance of counsel unless all facts relevant to that claim have been developed in the record]; People v. Avena (1996) 13 Cal.4th 394, 419 [“[w]here the record does not illuminate the
Emphasizing that the triаl court had discretion to strike the two consecutive 25-year-to-life firearm enhancements it imposed, thereby potentially reducing his sentence from an aggregate indeterminate term of 90 years to life to 40 years to life, Sepulveda contends his counsel provided constitutionally deficient assistance by failing to present during the February 15, 2018 sentencing hearing any of the information mitigating culpability contained in the Franklin memorandum filed on April 4, 2018. (Alternatively, Sepulveda suggests defense counsel should have requested yet another continuance of the sentencing hearing, already delayed more than a year, so that the memorandum would be completed and filed prior to sentencing.) The record on appeal, however, does not explain why counsel chose to proceed in this fashion. “Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel‘s actions or failure to take certain actions were objectively unreasonable.” (People v. Mickel, supra, 2 Cal.5th at p. 198.)
Nor has Sepulveda shown “affirmative evidence that counsel could have had ‘no rational tactical purpose’ for these decisions.” (People v. Mickel, supra, 2 Cal.5th at p. 200.) To the contrary, it is at least plausiblе that defense counsel recognized under
DISPOSITION
The judgment is affirmed. The abstract of judgment is ordered corrected to reflect the sentence on count 2 is to be served consecutively аnd the sentence on counts 3 and 4 concurrently to the sentence on count 1.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.