On appeal, defendant argues the trial court erred by failing to bifurcate the possession of a firearm charge from the murder charge, the court erroneously excluded evidence of the victim's propensity for violence, the prosecutor committed two acts
FACTUAL AND PROCEDURAL BACKGROUND
On January 22, 2014, defendant shot Kenny Hernandez to death during a confrontation between the two men at an apartment complex. Three witnesses gave varying accounts of the shooting to law enforcement officers after the incident and at defendant's murder trial.
Hernandez's cousin, Claudia Pena, testified that on January 22, she, Hernandez, and his mother, Marta Garcia, were moving items Pena had stored for them from her second story apartment to the apartment the two recently moved into in the same apartment complex. During one of their trips, Hernandez walked down the stairs with a small table and boxes, and Pena walked behind him with two chairs. Garcia was behind Pena, also carrying some items. When Hernandez got to the bottom of the stairs, defendant came up fast on a scooter and hit Hernandez near his waist with the handlebar of the scooter. Pena testified that Hernandez told defendant in English, "Hey, be careful. Hey, be careful. You could hit a baby." Defendant then threw down his scooter, walked up to Hernandez, and used racial slurs. Hernandez put down the items he was carrying and responded, "What's your problem? I'm just telling you to be careful." Defendant then shot Hernandez once in the chest killing him.
In contrast to Pena's trial testimony, Sacramento County Deputy Sheriff Ryan Cervetti testified that after the murder Pena told him both defendant and Hernandez were yelling and cursing at each other before defendant shot Hernandez.
Garcia testified that defendant crashed into Hernandez with his scooter, and then Hernandez said something to defendant. Garcia did not completely understand what Hernandez said because it was in English, but she thought Hernandez told defendant to be careful. Defendant said something back to Hernandez that Garcia did not understand and then threw down his scooter. Defendant then walked toward Hernandez causing Hernandez to put down the items he was carrying. Hernandez did not say anything to defendant. Defendant said something else to Hernandez and then shot him. Throughout the whole incident, Hernandez did not appear angry but spoke loudly.
Defendant's mother, Linda Ellis, who also witnessed the incident, testified that as she walked down the stairs to take out the trash, she saw her son talking with a black man at the bottom of the stairs across from her. She had never seen the black man before but described him as being 23 or 24 years old with dreadlocks or braids and wearing a hat and a coat. Ellis also saw Hernandez throw trash bags down from the apartment above where defendant and the black man were standing. Hernandez then walked down the stairs with a bag and bumped into both defendant and the black man. Defendant told Hernandez to "watch out," and Hernandez responded, "What you say you bitch-ass nigger?" Hernandez then became enraged and ran toward defendant. Hernandez punched defendant in the face and backed him into a corner where defendant crouched down and shielded his face. Hernandez then kicked defendant three or four times in his face. Hernandez then suddenly fell into a nearby barbeque pit and did not get up. The black man left the area after Hernandez fell into the barbeque pit.
In contrast to Ellis's trial testimony, Sacramento County Sheriff's Detective Pam Linke testified that Ellis told her defendant and Hernandez argued and fought and that her son pushed Hernandez into a barbeque. Ellis never said Hernandez hit defendant or that there was a black man present for the fight. Following the incident, defendant did not have any injuries, bruises, or bleeding to his face, neck, or arms.
Defendant was 19 years old at the time of the murder. He was five feet two inches tall and suffered from an intellectual disability. Dr. Jeffrey Miller, a clinical psychologist, administered an IQ test to defendant, which determined his ability to intellectually function by testing his memory, thinking, and reasoning skills. Overall, defendant scored a 58, which placed him in the mild range of intellectual disabilities. A score below 70, however, constitutes a severe disability in terms of a person's ability to function on a daily basis. Because of defendant's disability, he learns at a very slow rate and is slow to understand and respond to external acts. Defendant functioned in life as a nine- to 11-year-old child would function.
During an Evidence Code section 402 hearing, Garcia testified that a month before the murder, a group of men approached Hernandez in a different apartment complex than the one where he was shot. The biggest man in the group started pushing Hernandez and Hernandez pushed him back. Garcia got in the middle of the men and told her son not to fight. The men then dispersed. Garcia stated that her son was not the type of person who was involved
Before trial, defendant moved to exclude his 2013 felony conviction for possession of cocaine base. The court stated that it would not rule on the issue until it came up at trial because the court's decision depended on whether the parties stipulated that defendant had been convicted of a felony. The trial court noted that even with a stipulation, the fact of defendant's felon status would still be presented to the jury. The issue was never addressed again and the prosecution admitted defendant's certified record of conviction to prove that he was previously convicted of a felony. During the prosecution's rebuttal closing argument, the prosecutor argued defendant's plea agreement wherein he indicated that he understood the extent of his plea showed his mental impairment defense was unavailing. The prosecutor also stated that defense counsel "talk[ed] trash" and "[could not] back it up" after defense counsel argued the jury should convict defendant of voluntary manslaughter, but then also argued he did not commit the murder at all.
Among other instructions, the court instructed the jury on first and second degree murder, voluntary manslaughter based on heat of passion and imperfect self-defense, complete self-defense and the related principles of contrived self-defense and mutual combat, and mental impairment. The court did not instruct, nor did defense counsel request the jury be instructed, on involuntary manslaughter. Further, defense counsel did not request modification to the court's instructions, except to request that the jury be told it could consider defendant's mental impairment for the purpose of the objective component of
At sentencing, the trial court indicated it had reviewed defendant's 11-page probation report. Defense counsel stated he did not have anything to add to the report and that it contained no errors or omissions. Defense counsel also indicated he did not file any other documents with the court and that he had nothing to say before judgment was entered because the "probation report notated the mitigating factors that [he] would bring up." The court then sentenced defendant to a term of 40 years to life for murder and the associated gun enhancement and imposed a concurrent two-year term for being a felon in possession of a firearm.
DISCUSSION
I-VIII
IX
Defendant Is Not Entitled To A Franklin Remand But Is Entitled To Remand For The Trial Court To Consider Striking The Firearm Enhancement
Defendant contends he is entitled to remand to the trial court because the record is not clear that he was afforded a sufficient opportunity to place evidence on the record necessary for his eventual youth offender parole hearing under Penal Code section 3051. The People respond that defendant was already afforded this
In Franklin , the California Supreme Court noted that the Eighth Amendment of the United States Constitution prohibition against cruel and unusual punishment prohibits a criminal court from sentencing a minor "to the functional equivalent of [life without parole] for a homicide offense" without taking into account " 'how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison' " ( People v. Franklin (2016)
Because the enactment of the statutes meant that the juvenile was "now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration," his sentence was "neither [life without parole] nor its functional equivalent" and "no Miller claim arises." ( People v. Franklin , supra , 63 Cal.4th at pp. 279-280,
The court advised, "If the trial court determines that [the juvenile] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 [of the Penal Code] and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [The juvenile] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances
We are not persuaded that defendant is entitled to a remand under Franklin .
During defendant's sentencing hearing, the court asked defense counsel multiple times whether he wanted to add anything to what was contained in the 11-page probation report. Defense counsel said that he had nothing to add to the probation report, including documents, and the probation report contained no errors or omissions. Further, defense counsel stated that the "probation report notated the mitigating factors that [he] would bring up." The probation report included information regarding defendant's psychological and medical problems, along with a summary of Dr. Miller's report. This summary included details of defendant's home life, education, psychiatric treatment, criminal history, and IQ test.
Given the trial court's numerous invitations to defense counsel to add information to the record and defense counsel's statements that the probation report was sufficient, we conclude defendant "was afforded sufficient opportunity to make a record of information relevant to [defendant's] eventual youth offender parole hearing." (See People v. Franklin , supra ,
Defendant further argues, however, that under a recent change to Penal Code section 12022.53, his case must be remanded so that the trial court can exercise its newly-granted discretion to decide whether to strike the firearm enhancement imposed here. The People concede that such a remand is required, and we agree.
Defendant contends this amendment applies to his case because the Legislature
The People agree that because the amendment provides discretion to impose a lesser sentence, and because there is nothing in the amendment to suggest the Legislature intended it to apply prospectively only, the presumption that the amendment applies retroactively prevails. The People do not argue that remand in this instance would be futile (see People v. Gutierrez (1996)
We agree with defendant and the People that remand is appropriate here. Under Estrada , "when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature." ( People v. Francis (1969)
Defendant's conviction is affirmed, but the case is remanded to the trial court for further proceedings consistent with this opinion.
We concur:
Butz, J.
Duarte, J.
Certified for Partial Publication.
Notes
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts I through VIII of the Discussion.
See footnote *, ante .
We previously issued an opinion in this case reaching the same conclusion, but the Supreme Court granted defendant's petition for review and transferred the case back to us "with directions to vacate [our] decision and reconsider whether defendant is entitled to make a record before the superior court of 'mitigating evidence tied to his youth' in light of" Franklin and Penal Code sections 3051 and 4801, subdivision (c). Having reconsidered the issue, we reach the same conclusion we reached before.
Although we are remanding the case specifically to allow the trial court to exercise its discretion under the recent amendment to subdivision (h) of Penal Code section 12022.53, our determination that defendant is not entitled to remand under Franklin does not necessarily preclude the trial court from supplementing the record for purposes of defendant's eventual youth offender parole hearing, should defendant ask to do so and should the trial court determine that such supplementation would be appropriate. Indeed, it may well be that information offered to the trial court to assist in its determination of whether to exercise its discretion to strike the firearm enhancement will be the same sort of information that would be offered under a Franklin remand in any event. Accordingly, we leave it to the trial court in the first instance to decide what additional information may be entered into the record on remand.