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)
APPEAL from a judgment of the Superior Court of Los Angeles County, Martin L. Herscovitz, Judge. Affirmed with directions.
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 willful, deliberate and premeditated murder and one count of shooting from a motor vehicle with true findings he had personally discharged a firearm causing great bodily injury or death when committing each of the offenses and the offenses had been committed for the benefit of a criminal street gang. He was sentenced to an aggregate indeterminate stаte prison term of 90 years to life.
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 (
Fоllowing several continuances of the sentencing hearing at Sepulveda‘s request, on July 18, 2017 the trial court appointed Amy York, a capital mitigation investigation expert, to assist Sepulveda‘s counsel with preparation of material that would ultimately be presented at Sepulveda‘s youth offender parole hearing, referred to by the court and counsel as a “Franklin package.” On August 29, 2017 Sepulveda moved once again to continue the sentencing hearing. His counsel explained he had provided York with various documents relevant to her investigation and she had interviewed Sepulveda, but York was waiting for additional records and still needed to interview Sepulveda‘s relatives. York estimated she needed an additional two months to complete her work. Sepulveda‘s motion was granted. The sentencing hearing was thereafter delayеd several more times while York continued her work. On February 1, 2018 Sepulveda‘s counsel asked for a final continuance to February 15, 2018 for sentencing.
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 documеntary 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 timе.”
The 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 to prevent that eligibility. But based on
The court sentenced Sеpulveda 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 fаmily.4 Neither Sepulveda nor the prosecutor was present in court when the memorandum was filed. In his opening brief Sepulveda states the material “indicated appellant‘s childhood trauma and stress contributed to his recklessness and disregard of consequences, and made him vulnerable to gang associations.”
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, emрhasizing a juvenile 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
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 opportunity for release during his 25th yеar 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 arises here. The Legislature‘s enactment of Senate Bill No. 260 has rendered moot Franklin‘s challenge to his original sentence under Miller.” (Id. at pp. 279-280; see id. at p. 281 [
Since it was not clear whether Franklin had been afforded a sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing, the Court remanded the matter for the trial court to provide that opportunity if necessary. (Franklin, supra, 63 Cal.4th at p. 284; see id. at p. 286 [“[s]o long as juvenile offenders have an adequate opportunity to make a record of factors, including youth-related factors, relevant to the eventual parole determination, we cannot say at this point that the broad directives set forth by Senate Bill No. 260 are inadequate to ensure that juvenile offenders have a realistic and meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”].) The Court authorized Franklin to place on the record “any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing” (id. at p. 284), but also recognized the right of the prosecution to submit “any evidence that demonstrates the juvenile offender‘s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.” (Ibid.)
2. Counsel‘s Stipulation To File the Franklin Package After the Sentencing Hearing and Without Presentation of Live Testimony Did Not Viоlate 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
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.)
Moreover, as held in Rodriguez and reiterated in Cook, the trial court may “exercise its discretion to conduct this process effiсiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rules, statutes, and regulations.” (People v. Rodriguez, supra, 4 Cal.5th at p. 1132; accord, Cook, supra, 7 Cal.5th at p. 459.) Explaining the scope of the trial court‘s discretion, the Cook Court stated, “The court may, for example, require an offer of proof regarding the evidence the offender seeks to present, so that it can determine whether such evidence is relevant to youth-related factors and meaningfully adds to the already available record. It may also determine whether testimony is ‘appropriate’ [citation], or if other types of evidentiary submissions will suffice.” (Cook, at p. 459.)
3. Sepulveda‘s Ineffective Assistance of Counsel Claim Should Be Presented in a Petition for Writ of Habeas Corpus
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 basis for the challenged acts or omissions, a claim of ineffective assistance is more approрriately made in a petition for habeas corpus”], italics omitted.)
Emphasizing that the trial 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
Nor has Sepulveda shown “affirmative evidence that counsel could have had ‘no rational tаctical purpose’ for these decisions.” (People v. Mickel, supra, 2 Cal.5th at p. 200.) To the contrary, it is at least plausible that defense counsel recognized under
DISPOSITION
The judgment is affirmed. The abstract of judgment is ordered corrеcted to reflect the sentence on count 2 is to be served consecutively and the sentence on counts 3 and 4 concurrently to the sentence on count 1.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.