THE PEOPLE, Plаintiff and Respondent, v. ERIC DAYSHAWN SPEIGHT, Defendant and Appellant.
No. G049626
Fourth Dist., Div. Three
July 11, 2014
A petition for a rehearing was denied July 31, 2014.
227 Cal. App. 4th 1229
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
O‘LEARY, P. J.--Eric Dayshawn Speight appeals from a judgment after a jury convicted him of two counts of premeditated, willful, and deliberate attempted murder and found true various enhancements. Speight argues the following: (1) the prosecutor committed prejudicial misconduct when she misstated the law concerning homicide and the error was compounded by the trial court‘s statements and omission of an instruction on the interaction between attempted murder and attempted voluntary manslaughter, and (2) his sentence was cruel and unusual punishment and he received ineffective assistance of counsеl when defense counsel failed to object to part of his sentence
As we explain below, we agree the trial court erred in instructing the jury but conclude Speight was not prejudiced. With respect to his sentencing claim, we conclude defense counsel‘s performance was deficient regarding sentencing. We affirm the judgment, reverse Speight‘s sentence, and remand the matter for a new sentencing hearing.
FACTS
One evening in August 2010, Tonesha S. was at home in bed asleep with her boyfriend Richard S. when her brother Michael S. woke them and said 17-year-old Speight and a few other men had “jumped” him. Michael had visible injuries to his lip and forehead. Over the course of the following week, Tonesha called Speight approximately 60 times to learn why Speight hit Michael. Tonesha was very angry with Speight and she grew angrier when he avoided her calls. Cherlyn S., Tonesha‘s mother, tried to speak with Speight‘s mother concerning the incident without suсcess.
On the afternoon of August 13, 2010, Tonesha, Richard, and their friends, Bryant W. and his girlfriend, went to the mall where they saw Cherlyn, who had Tonesha and Richard‘s two children with her. Cherlyn told Tonesha that she was going to speak with Speight‘s mother. Tonesha was uncomfortable with Cherlyn taking Tonesha‘s children to speak with Speight‘s mother so Tonesha and the others followed in Tonesha‘s car.
Cherlyn stopped her car in front of Speight‘s residence, and Tonesha stopped her car about eight houses away. Bryant got out of Tonesha‘s car, walked to Cherlyn‘s car, and stood near the passenger door. Tonesha and Richard saw a woman, later identified as Kacharelle Butler, Speight‘s aunt, walk towards Cherlyn‘s car and speak with Cherlyn. When it appeared to Tonesha the conversation was becoming confrontational, Butler was making hand gestures, she drove her car and parked behind her mother‘s car. Tonesha
Tonesha saw Speight walking towards her with a gun, and Bryant lifted his shirt and turned around to show Speight he was not armed. Richard grabbed Tonesha and said they needed to leave quickly. Bryant said, “Hey, watch out, he [sic] got a gun,” and he ran away. Richard grabbed Tonesha‘s hand and began to run away. Tonesha heard a woman say to Speight, “No, go back in the house, there‘s no need for that.” Tonesha broke away from Richard and ran towards her car. Richard saw Speight shoot the gun in Bryant‘s direction but Bryant had turned the corner.
As Tonesha ran away, she heard the first shot. Speight chased her and when he got near her, he slowed down, aimed the gun at her, and fired. Tonesha heard a second shot “[a]nd it dropped [her] instantly.” Tоnesha, who was shot in the back, was lying facedown on the ground. As Richard ran to Tonesha, Speight pointed the gun at Tonesha, and Richard said, “She‘s already dead, why are you still shooting?” Speight pointed the gun at Richard and shot him in the left shoulder. As Richard tried to pick up Tonesha, Speight shot Tonesha again, this time in the right shoulder.
Richard and Tonesha fled to a nearby home where they tried to get help. After Richard had Tonesha sit on the porch and he rang the doorbell, Richard walked away. Speight followed Richard, and Richard asked him what he was doing. Speight pointed the gun at Richard and pulled the trigger, but there were no more bullets. It appeared to Richard that Speight smirked before he ran home. As Richard put Tonesha in Cherlyn‘s car, Richard saw Speight and the other man get into a car and drive away. Cherlyn drove away and flagged down an ambulance, which took Tonesha to the hospital; she suffered from critical injuries. Emergency personnel responded and transported Richard by helicopter to the hospital; his injury was superficial. Two years after the shooting Tonesha still suffered from a loss of mobility and sensation to her left arm. She had undergone one surgery and expected at least one more.
An amended information charged Speight with three counts of willful premeditated and deliberate attempted murder (
At trial, the prosecutor offered Tonesha‘s testimony as described above. Additionally, Tonesha denied threatening Speight during any of her numerous telephone сalls. She claimed neither she nor anyone else in her car had any weapons. She denied ever trying to run into the house. On cross-examination, Tonesha denied she threatened Speight during any of her telephone calls. She also denied being at Speight‘s house before the day of the incident or throwing a rock through his window. And Tonesha denied she threatened Speight when she saw him standing on the front porch before she hit Butler. Tonesha claimed she saw that Speight was armed before she hit Butler. She claimed Bryant did not threaten anyone when he walked to the house. On redirect examination, Tonesha stated she saw Speight had a gun after she hit Butler. On recross-examination, Tonesha was unsure whether Speight came out of the house with the gun before or after she hit Butler.
Butler testified for the prosecution. She explained that when Cherlyn stopped her car, there was a man walking towards the house. Butler stated that as she spoke with Cherlyn, the man approached Speight and tried to instigate a fight. She said Speight went inside to get his “fighting gloves” and went back outside. She said Speight went back inside and returned with a gun. Butler testified she asked Speight what he was doing and told him to put the gun away. She said the man sat in the car and shielded himself with the door. She claimed Speight put the gun back in the house. Butler said another car pulled up and a woman, Tonesha, got out of the car and tried to run into the house but when Butler told her the person that she was looking for was not in the house, the girl who told Speight that Michael had called her a derogatory name, Tonesha, walked towards Butler and hit her. She stated there were two men who put their hands up like they wanted to fight her. She said that when Speight came back outside, he had the gun and told them to get away from his aunt and Butler went inside.
Thomas Chapman-Wright, an investigator with the Riverside Public Defender, testified he interviewed Butler telephoniсally after the incident. Butler told him that not only did Tonesha hit her, two men approached her with raised fists as if they were going to attack her and she was scared. Butler told him that Speight appeared with a gun and she told him to put it away. She thought the man in the car had a weapon.
Cherlyn testified for the prosecution. She explained that after Tonesha tried to hit Butler, she got out of her car to restrain Tonesha. She denied that
Richard testified concerning the incident as we describe above. He claimed no one in his party had any weapons. He stated neither he nor Bryant ever said anything to Butler or raised their fists to her.
Speight testified on his own behalf. He admitted that threе or four days before the shooting he punched Michael in the face because he had “disrespected” a girl they both knew by calling her derogatory names. Speight claimed he then went home. At home, a mutual friend of Speight and Michael called and said Michael‘s sister and boyfriend were looking for Speight because they believed he was involved in Michael being “jumped.” A few minutes later, a woman called Speight and asked him to come outside and fight Michael. Speight went outside and saw a car with a woman and man who he later learned were Tonesha and Richard. Speight told them he was not part of the group that assaulted Michael. At some point, Richard called Speight a “crab,” a disrespectful name for a Crip gang member. After Speight denied he was a gang member, he asked Richard where he was from and Richard replied, “Eastside Bounty Hunter Watts.” Speight was scared because he believed that to be a violent, retaliatory faction of the Bloods. Speight asked Richard his gang name, and Richard answered, ” ‘Chaos.” Tonesha insisted Speight was involved in the attack on her brother, and Richard tried to hit Speight but missed. They left, and Speight went inside. About 10 minutes later, Speight was on the telephone when he heard pounding on the door and 30 seconds later a loud crash; someone had thrown a brick through the window. Throughout the night Tonesha called Speight a few times and during one of the calls she threatened him and told him to come outside and fight Michael.
Speight stated that two days later Tonesha called and threatened everyone in his house. A few minutes later Tonesha called and threatened to kill everyone in his house unless Speight came outside and fought Michael. Speight described his level of fear as a seven on a scale of one to 10. Speight admitted that the following day, his cousin, Mica Caruso, brought him a gun despitе Speight‘s insistence he did not need it.
On the afternoon of the incident, Speight was at home with his brother Cordell Edwards, his aunt Kacharelle Butler and her two children, and friends Janae Young, Elton Satterwhite, Derrick Kendrick, and Erica Johnson. Speight said a man called him and told him to come outside and fight. Speight told Edwards, Satterwhite, and Kendrick they, Tonesha and Richard, were there
On cross-examination, Speight testified that when Tonesha and Richard ran towards the car he still considered them a threat because he believed they could have been going to the car to get a gun. Speight admitted he fled the scene, had someone cut his hair, and changed his clothes to alter his appearance. On redirect examination, Speight testified he was afraid and felt provoked because they came to his house, made the telephone calls, broke his window, tried to get him to go outside and fight, and acted as if they had guns.
Speight offered the following testimony in his defense. Lynette Edwards, Speight‘s mother, testified that one night a few days before the shooting, she was asleep when someone threw a rock through her front window. She yelled at Speight to fix the window. She did not call the police because it was late, she was tired, and she had to go to work the next morning. She stated Speight can become so angry and afraid he does not realize what he is doing or saying. Mica Caruso testified he spoke with Speight a few days before the shooting. Speight described to Caruso an incident that frightened Speight. Caruso, without any prompting from Speight, purchased an illegal gun and gave it to Speight. Speight‘s girlfriend, Young, testified a man tried to
During a hearing on the jury instructions, there was a discussion concerning the voluntary manslaughter instruction. Speight‘s defense counsel inquired whether the prosecutor and the trial court agreed the prosecutor was required to prove beyond a reasonable doubt Speight was not acting as a result of sudden quarrel or “incorrect self-defense.” The prosecutor agreed and indicated she thought it was addressed. Defense counsel replied it was addressed in CALCRIM but was not sure if it was addressed in CALJIC. The parties discussed where the instruction would be located in CALJIC. After the court inquired about counsel‘s concern, counsel explained the prosecutor had the affirmative burden of proving Speight did not act in the heat of passion or in imperfect self-defense. The court stated it was undoubtedly the prosecutor‘s burden but it was unaware of any CALJIC instruction that made it a requirement and was unsure if one was necessary. Counsel distinguished the situation where the jury acquits on the charged offense and proceeds with the lesser included offenses and this situation where the prosecutor was required to prove “the lessers in order to” establish the charged offense. Counsel added, “You can‘t instruct the jury that they don‘t need to consider involuntary manslaughter only when they find him not guilty of attempt[ed] murder, they have to consider that along with [it].” Counsel argued the proposed instruction did not make that clear to the jury and it lowered the prosecution‘s burden of proof because it removed that issue from the jury. The court stated CALJIC No. 2.90‘s general instruction on burden of proof and reasonable doubt adequately covered counsel‘s concern. The court added: “It almost seems like you‘re saying before she gets to the attempted voluntary manslaughter, it‘s her burden of proof to establish he‘s not guilty of attempted murder. That‘s nonsensical. [] . . . [¶] You could put in it‘s her duty to prove beyond a reasonable doubt that he is guilty of the charged crimes and he is guilty of the lesser included offenses. It‘s her burden. It‘s her burden. It‘s her burden.” Defense counsel stated he was going to argue language taken directly from CALCRIM No. 603, that if the prosecution did not meet its burden of proving Speight did not act in the heat or passion or in imperfect self-defense, the jury must acquit him of attempted murder. Counsel and the court debated whether the proposed instructions adequately covered that principle. The prosecutor did not object during the argument.
As relevant here, the trial court instructed the jury with the following instructions: CALJIC No. 8.66, attempted murder; CALJIC No. 8.11, malice aforethought; CALJIC No. 8.67, willful, deliberate, and premeditated attempted murder; CALJIC No. 8.41, attempted voluntary manslaughter;
During closing argument, as relevant here, defense counsel argued Tonesha, Richard, and Cherlyn were biased because all were angry at Speight and they sanitized and minimized their own conduct. Counsel argued Tonesha and Richard repeatedly threatened Speight to the point where Caruso, who was a gang member and knowledgeable about gangs, obtained a gun for Speight to protect himself. Counsel contended Speight was not guilty of attempted murder because he did not intend to kill Tonesha or Richard. After detailing the numerous threats, counsel argued Speight was provoked and he acted in the heat of passion. Counsel argued the prosecutor had to prove “there was either insufficient provocation or that the provocation never happened.” Counsel made the same argument regarding imperfect self-defense. Counsel concluded Speight did not intend to kill anyone.
During rebuttal argument, as relevant here, the prosecutor argued: “Talked about heat of passion. Now, what‘s critical here-and let me go back. In order to get to voluntary manslaughter, which I would suggest is not the
The jury convicted Speight of counts 1 and 2 and found true the accompanying enhancements, including that he was 16 years of age or older at the time of the offenses. The jury acquitted him of count 3 concerning Bryant.
The trial court sentenced 19-yеar-old Speight to prison as follows: count 1-an indeterminate term of seven years to life plus 25 years to life for discharging a firearm plus a five-year determinate term for inflicting great bodily injury and count 2-an indeterminate term of seven years to life plus 25 years to life for discharging a firearm. The court ordered the sentences on counts 1 and 2 to run consecutively because there were two victims. Thus, the court sentenced Speight to prison for a determinate term of five years plus 64 years to life.
DISCUSSION
I. Jury Instructions
Speight argues the prosecutor committed misconduct during rebuttal argument when she discussed the interaction between attempted murder and attempted voluntary manslaughter and the trial court “reinforced the misstatement by agreeing” the prosecutor‘s statement was legally correct. Noting the trial court instructed the jury with CALJIC and not CALCRIM, Speight adds the court erred in failing to instruct the jury sua sponte the prosecution had the burden to prove beyond a reasonable doubt that Speight did not act in the
The Attorney General first asserts the prosecutor did not misstate the law. Recognizing CALJIC No. 8.50 is a correct statement of law that would have provided the jury with the language Speight asserts was improperly omitted, the Attorney General nevertheless contends there was no prejudicial instructional error. The Attorney General claims the other instructions properly informed the jury that to convict Speight of murder, the prosecution had to prove beyond a reasonable doubt Speight acted with malice aforethought, which necessarily meant the prosecution had to prove beyond a reasonable doubt Speight did not act in the heat of passion. As we explain below, we agree the trial court erred in failing to instruct the jury sua sponte with CALJIC No. 8.50.
Attempted murder requires a direct but ineffectual act towards killing a person and that the defendant harbored express malice aforethought. (People v. Houston (2012) 54 Cal.4th 1186, 1217 [144 Cal.Rptr.3d 716, 281 P.3d 799].) Attempted voluntary manslaughter is the unlawful killing of a person without malice. (People v. Avila (2009) 46 Cal.4th 680, 705 [94 Cal.Rptr.3d 699, 208 P.3d 634].) Attempted voluntary manslaughter is a lesser included offense of attempted murder. (People v. Beltran (2013) 56 Cal.4th 935, 942 [157 Cal.Rptr.3d 503, 301 P.3d 1120] (Beltran).)
“The mens rea element required for murder is a state of mind constituting either express or implied malice. A person who kills without malice does not commit murder. Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter. Heat of passion arises if, “at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.“’ [Citation.] Heat of passion, then, is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation. While some measure of thought is required to form either an intent to kill or a conscious disregard for human life, a person who acts without reflection in response to adequate provocation does not act with malice.” (Beltran, supra, 56 Cal.4th at p. 942, fn. omitted.)
This authority establishes that to prove the defendant guilty of attempted murder, the prosecution must prove beyond a reasonable doubt
Speight relies on this interaction to argue “[t]he prosecutor misstated the law when she stated that in order to even consider the lesser included offense of attempted voluntary manslaughter, the members of the jury had to first find [him] not guilty of attempted murder.” It is of course improper for the prosecutor to misstate the law and particularly to absolve the prosecution from proving beyond a reasonable doubt all elements of a charged offense. (People v. Marshall (1996) 13 Cal.4th 799, 831 [55 Cal.Rptr.2d 347, 919 P.2d 1280].) We do not, however, read the prosecutor‘s statements to forbid the jury from considering attempted voluntary manslaughter until they concluded defendant was not guilty of attempted murder. Nor do we read her statements as an attempt to somehow lessen her burden of proof. Read in their totality, we conclude the prosecutor simply informed the jury that to convict Speight of attempted voluntary manslaughter it had to first conclude he was not guilty of attempted murder.
Additionally, the trial court properly instructed the jury with CALJIC No. 17.10 concerning how the jury should approach deliberations on lesser included offenses and that it could not accept a verdict on a lesser crime until the jury acquitted on the charged crime, and CALJIC No. 17.49, concerning how the jury was to complete the verdict forms. The jury had a written copy of all the instructions during deliberations. It is well settled that if anything counsel says during argument conflicts with the trial court‘s jury instructions, the jury must follow the court‘s instructions. (People v. Sisneros (2009) 174 Cal.App.4th 142, 152-153 [94 Cal.Rptr.3d 98].) The trial court here instructed the jury with that legal requirement and any misstatement was remedied by the court‘s instructions. (CALJIC No. 1.00.) We turn now to Speight‘s claim the trial court erred in instructing the jury.
“Of course, in a murder trial, the court, on its own motion, must fully instruct on every theory of a lesser included offense, such as voluntary manslaughter, that is supported by the evidence. [Citation.] Hence, where the evidence warrants, a murder jury must hear that provocation or imperfect self-defense negates the malice necessary for murder and reduces the offense to voluntary manslaughter.” (Rios, supra, 23 Cal.4th at p. 463, fn. 10.)
As relevant here, the trial court instructed the jury that to convict Speight of attempted murder, it had to find he acted with express malice aforethought (CALJIC No. 8.66) as defined (CALJIC No. 8.11). The court also instructed the jury with CALJIC No. 8.67, willful, deliberate, and premeditated attempted murder. That instruction, after providing the definitions for ” ‘willful,’ ” ” ‘deliberate,’ ” and ” ‘premeditated, ” provides, “If you find that the attempted murder was preceded and accompanied by a clear, deliberate intent to kill, which was the result of dеliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is attempt to commit willful, deliberate, and premeditated murder.” (Ibid., italics added.) The instruction also provided, “The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.”
The trial court instructed the jury on attempted voluntary manslaughter with CALJIC No. 8.41, as follows: “Every person who unlawfully attempts
Here, the trial court properly instructed the jury on the lesser included offense of attempted voluntary manslaughter. However, the court did not instruct the jury the prosecution had to prove beyond a reasonable doubt that Speight did not act in the heat of passion. That was error.
The Attorney General does not dispute, and we agree, the record includes sufficient evidence from which the jury could reasonably conclude Speight was provoked and he acted in the heat of passion. Tonesha admitted she called Speight 60 times over the course of about four days, conduct that cannot be described as anything but harassing. Speight testified that during at least two of those telephone calls, Tonesha threatened to kill everyone in his house. He also testified that a few days before the incident, Tonesha and Richard went to his house where Richard tried to hit him. On that occasion, Richard told Speight that he was a member of a Bloods gang Speight believed to be particularly violent. Later that night, someone threw a brick through Speight‘s window. Speight‘s mother‘s testimony corroborated the vandalism to her home. Speight repeatedly testified he was scared because he believed Richard was a gang member.
On the day of the incident, Speight stated there was a man outside his house angrily yelling at him to come outside and fight. Speight stated the man
CALJIC No. 8.50 in relevant part provides: “The distinction between murder and manslaughter is that murder . . . requires malice while manslaughter does not. [¶] When the act causing the death, though unlawful, is done [in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation,] [or] [in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury,] the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [¶] To establish that a killing is murder . . . and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done [in the heat of passion or upon a sudden quarrel] [or] [in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury].”3 (Italics added.)
Thus, the trial court erred in failing to instruct the jury sua sponte with CALJIC No. 8.50, that the prosecution was required to prove beyond a reasonable doubt that Speight did not act in the heat of passion. We conclude, however, Speight was not prejudiced because the instructional error was harmless even under the heightened federal constitutional standard articulated in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].
In People v. Wharton (1991) 53 Cal.3d 522, 569 [280 Cal.Rptr. 631, 809 P.2d 290] (Wharton), the trial court rejected defendant‘s proposed special
Speight could not have been prejudiced by the trial court‘s failure to instruct the jury with CALJIC No. 8.50 because “the jury necessarily resolved the factual question adversely” to him when it found him guilty of attempted murder. In instructing the jury, the trial court stated that if the jury concluded Speight was guilty of attempted murder, it then had to determine whether he committed the offenses willfully, deliberately, and with premeditation. The court instructed the jury with CALJIC No. 8.67, which properly and completely explained those principles. After finding Speight guilty of two counts of attempted murder, the jury made the additional finding he acted willfully, deliberately, and with premeditation. This state of mind, involving planning and deliberate action, is manifestly inconsistent with hаving acted under the heat of passion. Thus, we conclude the instructional error was harmless beyond a reasonable doubt.
II. Cruel and Unusual Punishment
Relying on Graham v. Florida (2010) 560 U.S. 48, 73 [17 L.Ed.2d 825, 130 S.Ct. 2011] (Graham), and People v. Caballero (2012) 55 Cal.4th 262 [145 Cal.Rptr.3d 286, 282 P.3d 291] (Caballero), Speight argues his 69-year-to-life sentence constitutes a de facto life sentence because he was a juvenile offender who will not be eligible for parole until he is 88 years old, which is outside his natural life expectancy. He also argues the two 25-year-to-life firearm enhancements constitute cruel and unusual punishment because the sentences were grossly disproportionate to the facts of the case, and he received ineffective assistance of counsel because defense counsel did not object to imposition of the enhancements.
Speight responds that even if his first parole hearing is when he is 75 years seven months old, his sentence is the functional equivalent of a life sentence. He also states imposition of the 25-year firearm enhancements was cruel and unusual punishment because they were grossly disproportionate to the offender and the offense and defense counsel provided deficient performance because of the facts of the case.
Although the Attorney General limits her forfeiture argument to the firearm enhancements, based on our review of the record we conclude Speight‘s defense counsel did not object on cruel and unusual punishment grounds as to any aspect of the sentence either before the sentencing hearing by filing a sentencing brief or during the hearing. Other than defense counsel‘s objection to one of the aggravating circumstances, counsel submitted at the hearing.
A defendant‘s failure to contemporaneously object that his sentence constitutes cruel and unusual punishment forfeits the claim on appellate review. (People v. Gamache (2010) 48 Cal.4th 347, 403 [106 Cal.Rptr.3d 771, 227 P.3d 342]; People v. Mungia (2008) 44 Cal.4th 1101, 1140-1141 [81 Cal.Rptr.3d 614, 189 P.3d 880]; People v. Wallace (2008) 44 Cal.4th 1032, 1096 [81 Cal.Rptr.3d 651, 189 P.3d 911]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 997 [47 Cal.Rptr.3d 467, 140 P.3d 775]; People v. Burgener (2003) 29 Cal.4th 833, 886-887 [129 Cal.Rptr.2d 747, 62 P.3d 1]; People v. Vallejo (2013) 214 Cal.App.4th 1033, 1045 [154 Cal.Rptr.3d 341]; People v. Norman (2003) 109 Cal.App.4th 221, 229-230 [134 Cal.Rptr.2d 652].) A claim a sentence is cruel and unusual is forfeited on appeal if it is not raised in the trial court, because the issue often requires a fact-bound inquiry. (People v. Russell (2010) 187 Cal.App.4th 981, 993 [114 Cal.Rptr.3d 668] [type of issue that should be raised in trial court because trial judge after hearing evidence in better position to evaluate mitigating circumstances and
“Under existing law, a defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent. [Citations.]” (People v. Scott (1994) 9 Cal.4th 331, 351 [36 Cal.Rptr.2d 627, 885 P.2d 1040].) “A defendant claiming ineffective assistance of counsel must satisfy Strickland‘s [(Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674, 104 S.Ct. 2052])] two-part test requiring a showing of counsel‘s deficient performance and prejudice. [Citation.] As to deficient performance, a defendant ‘must show that counsel‘s representation fell below an objective standard of reasonableness’ measured against ‘prevailing professional norms.’ [Citation.] ‘Judicial scrutiny of counsel‘s performance must be highly deferential,’ a court must evaluate counsel‘s performance ‘from counsel‘s perspective at the time’ without ‘the distorting effects of hindsight,’ and ‘a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance....’ [Citation.]” (People v. Jacobs (2013) 220 Cal.App.4th 67, 75 [162 Cal.Rptr.3d 739].)
In Caballero, supra, 55 Cal.4th at page 268, the California Supreme Court held “sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender‘s natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment.” The court specified that in future cases, “the sentеncing court must consider all mitigating circumstances attendant in the juvenile‘s crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison ‘based on demonstrated maturity and rehabilitation.’ [Citation.]” (Id. at pp. 268-269.)
The California Supreme Court filed its decision in Caballero on August 16, 2012. (Caballero, supra, 55 Cal.4th 262.) The sentencing hearing in this case was on September 21, 2012. Although we give great deference to counsel‘s performance, counsel‘s performance regarding sentencing was deficient.
We also conclude Speight was prejudiced by this error. Speight was a juvenile when he committed the crime, he did not have any prior criminal history, and he showed remorse at the sentencing hearing. These are just some of the mitigating factors a trial court would consider when assessing a cruel and unusual punishment claim pursuant to Caballero. Thus, Speight was certainly prejudiced by defense counsel‘s failure to object to his sentence based on cruel and unusual punishment grounds. Under these circumstances it is appropriate for us to remand the case to the trial court for a new sentencing hearing.4 (
DISPOSITION
The convictions are affirmed, the sentence is reversed, and the matter remanded to the trial court for a new sentencing hearing. In light of this disposition, the clerk of this court is directed to give the required notice to the California State Bar and to trial counsel. (
Aronson, J., and Thompson, J., concurred.