Opinion
B301472
05-28-2021
THE PEOPLE, Plaintiff and Respondent, v. THOMAS BURLESON, Defendant and Appellant.
Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA113056) APPEAL from a judgment of the Superior Court of Los Angeles County, Steven D. Blades, Judge. Affirmed as modified. Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Thomas Burleson of one count of second degree murder (Pen. Code, § 187, subd. (a)) for shooting and killing Lloyd Ferrell, Jr. The trial court sentenced Burleson to an aggregate sentence of 44 years to life. Burleson contends that the trial court erred by making incorrect rulings regarding the admission of evidence, by failing to give certain pinpoint jury instructions, by excusing a juror during closing arguments, and by imposing certain fines and fees without determining his ability to pay them. He also contends that we must remand the case for a new sentencing hearing, pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin), to allow the court to consider mitigating information, that the court abused its discretion by imposing a 25-year firearm enhancement, and that his one-year sentence enhancement for a prior felony conviction must be stricken because of a subsequent change in the law. We agree with Burleson as to the one-year sentence enhancement, but we otherwise affirm.
Unless otherwise specified, subsequent statutory references are to the Penal Code.
Burleson also argues that even if each individual alleged error did not prejudice him, the cumulative effect of the errors prejudiced him. We reject this claim as well.
FACTUAL AND PROCEDURAL SUMMARY
On the evening of July 10, 2016, Burleson, who was a pimp, dropped off Saquewa Carter to work as a prostitute on the streets of Pomona. The victim, Ferrell, hired Carter to perform oral sex on him for $400 in his car.
Carter testified that, after about 10 minutes, Ferrell was unable to obtain an erection, and Carter texted Burleson to see if he was nearby, because she was planning to get out of the car. Ferrell asked Carter if he could pay her $50 more not to use a condom. Carter was offended by the request and refused, and Ferrell's tone and demeanor changed. Carter called Burleson using her cell phone to see if he was nearby. Cell phone records showed that Burleson texted Carter just after 2:30 a.m. to ask if she was okay and why her "date" was taking so long.
Burleson pulled up in his car shortly after Carter called him, and Carter and Ferrell, who had his pants down, both got out of Ferrell's car. Ferrell complained to Burleson that he had paid Carter but had not been able to finish. Burleson told Ferrell that he had taken too long, and that he would need to pay more for more time.
Ferrell agreed to pay at least $200 more. Carter got into Burleson's car, and they drove to a nearby alley next to a carport, with Ferrell following in his own car. Ferrell told Carter to get into his car, but Carter responded that he should pay her first. According to Carter, Burleson got out of his car, and he and Ferrell rushed each other and ended up on the ground fighting. Carter heard two gunshots, so she got into Ferrell's car, which was the closest car at hand, and drove away in it. Carter could not see who fired the gun.
Police later found a pool of blood in the carport where this altercation occurred. Burleson suffered a wound to his finger that might have been caused by a gunshot.
A witness, Marcus Pope, who lived nearby, testified that his girlfriend woke him up at about 3:00 a.m. that morning, telling him that something was going on outside. He looked out his window and saw Burleson's car driving down the street and crashing into several parked cars. The car came to a stop, and the driver, Ferrell, yelled, "I want my things back. Tell your girl to give me my things." Pope saw Burleson come around a corner and approach the car while brandishing a gun. The car door opened, and Burleson said, "Let me talk to you real quick." According to Pope, Burleson seemed "pretty calm" when he spoke. Burleson reached inside the car. Pope stepped back from the window, then heard two gunshots. Burleson threw Ferrell out of the car and drove away.
Pope ran toward Ferrell, who was nude from the waist down and bleeding from his head. Ferrell told Pope, "call my people for me." Pope called Ferrell's brother, then returned home. Pomona Police Officers arrived on the scene shortly thereafter. An officer saw Ferrell lying in the street and asked who shot him. Ferrell did not respond. The officer asked Ferrell where his pants were. Ferrell responded that he had $2,000 in his pants.
After she drove away in Ferrell's car, Carter called Burleson several times. He answered about five minutes later, and met up with Carter nearby. Burleson was covered in blood. Carter took everything out of Burleson's car, which was too damaged to drive. They abandoned Burleson's car in Pomona, then drove to a motel in San Bernardino in Ferrell's car. Surveillance footage showed Burleson and Carter arriving at the motel's parking lot at around 4:08 a.m.
Later that morning, Ontario police officers found Burleson's car parked at an apartment complex, with visible damage, including a bullet hole in the windshield, and blood on the outside. When they searched the vehicle, they discovered a credit card with Burleson's name on it, and a health insurance card in Carter's name.
One week later, on July 19, 2016, detectives arrested Burleson and interviewed him. He claimed he had parked next to Ferrell on the street, and that Ferrell had pulled a gun on him and told him to get out of his car. Burleson said he punched Ferrell, and that the gun went off as they were wrestling over it. Ferrell then got into Burleson's car, drove away, crashed the car, and came back. He demanded that Burleson give him his gun back. Ferrell was doing something with his hand that Burleson could not see, so Burleson shot him once. Ferrell kept trying to hit Burleson with his car.
Ferrell died on July 21, 2016, 10 days after the shooting. An autopsy showed that he died of a gunshot wound to the left side of his face, which damaged his spinal cord and caused him to be paralyzed. He also had a laceration to the back of his head and abrasions to his arms and right leg.
A jury convicted Burleson of one count of second degree murder (§ 187, subd. (a)) and found that he had personally and intentionally discharged a firearm in the murder (§ 12022.53, subd. (d)). The jury also convicted him of one count of possession of a firearm by a felon. (§ 29800, subd. (a).) The trial court sentenced him to 15 years to life for murder, plus an additional 25 years to life for the firearm enhancement, plus the high term of three years for possession of a firearm, plus one year under section 667.5, subd. (b) because he had previously been convicted of a crime for which he served a prison term.
DISCUSSION
A. Evidentiary Objections
Burleson contends that the trial court erred in three respects with its evidentiary rulings. First, he argues that the trial court abused its discretion by admitting a police officer's testimony of what Ferrell said after the shooting under the dying declaration exception to the hearsay rule. Next, he contends that the trial court erred by refusing to admit evidence that Ferrell was a gang member. Finally, he argues that the trial court erred by admitting as evidence crime scene photographs of Ferrell.
We review the trial court's rulings on the admissibility of evidence for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.) To meet this standard, it is not enough to show that the trial court could have reasonably reached a different conclusion. (People v. Miralrio (2008) 167 Cal.App.4th 448, 459.) Instead, " ' "[t]he appropriate [appellate] test for abuse of discretion is whether the trial court exceeded the bounds of reason." ' " (People v. Torres (2020) 47 Cal.App.5th 984, 989.) In most instances, we review errors regarding the admission of evidence under the Watson standard. (See People v. Wang (2020) 46 Cal.App.5th 1055, 1080.) Under this standard, a court will not reverse the defendant's conviction unless it "is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.) In the rare instance where an evidentiary error is so severe that it "amount[s] to a complete preclusion of a defense" (People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4), the more exacting standard of Chapman v. California (1967) 386 U.S. 18 applies. Under that standard, an error requires reversal unless the court can "declare a belief that it was harmless beyond a reasonable doubt." (Id. at p. 24.) The errors Burleson alleges in this case do not rise to this level, and we analyze them under the Watson standard.
People v. Watson (1956) 46 Cal.2d 818 (Watson).
We consider each of Burleson's contentions in turn, and in each instance, we conclude that he is not entitled to relief.
1. Dying declaration
Burleson contends that the trial court erred by admitting statements Ferrell made to the police following the shooting because, he claims, the hearsay exception for dying declarations did not apply. We disagree.
Evidence Code section 1242 provides that "[e]vidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death." " ' "This sense of impending death may be shown in any satisfactory mode, by the express language of the declarant, or be inspired from his evident danger, or the opinions of medical or other attendants stated to him, or from his conduct, or other circumstances in the case, all of which are resorted to in order to ascertain the state of the declarant's mind." ' " (People v. Monterroso (2004) 34 Cal.4th 743, 763.)
As he lay in the street paralyzed and bleeding from a gunshot wound fired at his face from close range, Ferrell answered questions from a police officer who had arrived at the scene. He told the officer that he did not know who shot him, did not know where his pants were, and that he had $2,000 in the pocket of his pants. The trial court allowed the prosecution to question the officer about these statements over Burleson's objection.
Burleson contends that the dying declaration exception did not apply to Ferrell's statements to police because there was no evidence that Ferrell believed he was in immediate danger of death. Burleson notes that there is no evidence that Ferrell told the police officer or anyone else who attended to him that he believed his death was imminent. Indeed, Ferrell did not die of his injury until 10 days later. Burleson argues that Ferrell may have been under the influence of drugs at the time, which might have made him less aware of the severity of his injury. Furthermore, Ferrell told Pope, the eyewitness to the shooting, not to call the police, which Burleson contends indicates that Ferrell did not believe he was in danger of dying.
Burleson contrasts the facts of his case with others where courts held that the dying declaration exception was proper. Thus, in People v. Gatson (1998) 60 Cal.App.4th 1020, 1022, the victim told her family members she believed she was dying. In People v. Monterroso, supra, 34 Cal.4th at p. 763, an officer testified that the victim appeared to be in great pain and fearful of death at the time he spoke. In People v. Mayo (2006) 140 Cal.App.4th 535, 553, the victim had been shot 11 times, unlike Ferrell, who had been shot only once.
These comparisons are unavailing because none of the factors identified in these cases are necessary for the application of the dying declaration exception. Ferrell spoke to the police officer shortly after suffering a grievous and ultimately fatal gunshot wound. A court could reasonably conclude that he did not show that he was suffering or afraid because he wanted to appear tough, and that he did not want Pope to call the police because he was a gang member and had just engaged in a sex act with a prostitute, then driven someone else's car and crashed with several other parked cars. The trial court did not abuse its discretion by finding that Ferrell was conscious of his imminently impending death when he made the statements.
Burleson also contends that the trial court erred by admitting Ferrell's statements because they were irrelevant and untrustworthy. Burleson forfeited this argument by failing to object on this basis before the trial court. His attorney's failure to do so did not constitute ineffective assistance of counsel because there is no reasonable probability that he would have obtained a better result if his attorney had objected. (See Strickland v. Washington (1984) 466 U.S. 668, 687-696 (Strickland).) If there was error, it was harmless. Ferrell did not incriminate Burleson with his statement; indeed, he claimed not to know who shot him. Ferrell told the officer that he had $2,000 in his missing pants. Burleson argues that the jury might have inferred from this statement that Burleson killed Ferrell in order to rob him, but the prosecution did not argue this theory, nor did the other evidence in the case support it.
2. Ferrell's gang membership
Prior to trial, Burleson filed a motion to introduce evidence that Ferrell was a member of the 456 Island Blood gang. Burleson argued that Ferrell's gang membership was relevant because "gang members involve themselves in certain crimes involving firearms," and because the question of who initially possessed the firearm that Burleson used to shoot Ferrell was relevant to Burleson's defense that he acted in self-defense. The prosecutor responded that if evidence of Ferrell's gang membership was admissible, the same would be true of evidence that Burleson himself was a gang member.
The trial court excluded the evidence under Evidence Code section 352, which provides that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The court reasoned that the admission of evidence on Ferrell's gang membership would be "time consuming" and "tend to confuse the jury."
Burleson contends that this was error. He argues that evidence of Ferrell's gang membership was relevant to his defense of self-defense, in that it would tend to show that Ferrell was the aggressor and the original possessor of the gun. Even if we agreed with such relevance, it does not show that the trial court abused its discretion by declining to admit the evidence. The evidence indicated that the shooting was the result of a dispute over a prostitution transaction, and that neither Ferrell nor Burleson's gang affiliation had anything to do with it. The admission of evidence regarding the parties' gang memberships was likely to take up time in the trial and mislead the jury regarding the relevant issues. If Ferrell's gang membership was relevant to prove his violent character, then Burleson's own gang membership was apt to do likewise for him, making it unlikely that the evidence would have helped Burleson prove that he acted in self-defense. The trial court acted within its discretion by excluding the gang evidence.
3. Crime scene photographs
Burleson objected to the introduction of three crime scene photographs depicting Ferrell after he was shot. The prosecutor argued that the photos were relevant to show the jury how Ferrell was lying in the middle of the street naked from the waist down, and to identify Ferrell as the victim. The trial court admitted two of the photos for the purpose of identifying Ferrell as the victim, and to corroborate Pope's testimony of how he saw Ferrell lying in the street after the shooting. The court excluded the third photo from evidence "because it was redundant and probably displayed more blood than the other two."
Burleson contends that this was error because the photos were irrelevant and unduly prejudicial. He notes that Ferrell's identity was not in dispute, and there was testimony from two witnesses that he was naked from the waist down after the shooting. He also points out that the photos showed Ferrell after Burleson threw him out of the car, and did not show how he was positioned during the shooting.
The court did not abuse its discretion by admitting the two photos into evidence. "[P]rosecutors . . . are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims' bodies to determine if the evidence supports the prosecution's theory of the case." (People v. Gurule (2002) 28 Cal.4th 557, 624.) Even if photo evidence is cumulative and "not strongly probative of any disputed fact" (id., at p. 625), their admission does not violate Evidence Code section 352 unless they are "inordinately gruesome." (People v. Gurule, supra, at p. 625.) In this case, the trial court avoided any such possibility by excluding the most "gory" photo from evidence.
B. Instructional Issues
The trial court instructed the jury on both perfect and imperfect self-defense. As part of its instruction on imperfect self-defense, following the pattern instruction CALCRIM No. 571, the trial court told the jury, "If you find that Lloyd Ferrell, Jr. threatened or harmed the defendant or others in the past, you may consider that information in evaluating the defendant's beliefs." Both the prosecutor and Burleson's trial attorney agreed that this instruction was appropriate because there was evidence that Burleson and Ferrell fought in the carport prior to the shooting.
Similar optional language is present in the pattern instruction for perfect self-defense: "If you find that [the victim] threatened or harmed the defendant . . . in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable." (CALCRIM No. 505.) The attorneys did not discuss the propriety of this language, however, and the trial court did not include it when instructing the jury on perfect self-defense.
Burleson contends that the trial court erred by failing to include this language. He also contends that the court erred by failing to include additional language from CALCRIM No. 505 that "[s]omeone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person."
We are not persuaded. First, Burleson forfeited the claim by failing to request the instructions. Where, as here, the trial court's instructions were " 'correct in law and responsive to the evidence,' " a party may not claim on appeal that the instruction " 'was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " (People v. Landry (2016) 2 Cal.5th 52, 100; People v. Garvin (2003) 110 Cal.App.4th 484, 488-489 [no sua sponte duty to instruct on prior assaults].) Burleson did not request the specific instructions for self-defense, and their omission did not result in an error of law or an omission of an element of a crime. (Cf. People v. Tillotson (2007) 157 Cal.App.4th 517, 538 [no forfeiture where the instruction omitted an element of the crime].)
Burleson argues that his attorney rendered ineffective assistance by failing to request the instruction and by failing to discuss the instruction in his closing argument to the jury. We disagree. The evidence showed a single, nearly continuous encounter between Burleson and Ferrell. They first fought in the carport, then encountered one another very shortly afterward in the street, where Burleson shot Ferrell. There was no evidence that Burleson and Ferrell had met before the night of the shooting, and it would not have been helpful to instruct the jury about whether Ferrell had harmed or threatened Burleson "in the past."
Cases dealing with instructions regarding past encounters between the victim and perpetrator confirm that they are meant to refer to prior existing relationships, not events immediately before the killing. In People v. Moore (1954) 43 Cal.2d 517, the Supreme Court held that the trial court erred by refusing to give a similar instruction in a case where the defendant killed her husband who had beaten, assaulted, and threatened her long before the day of the murder. (Id. at pp. 527-529.) In People v. Pena (1984) 151 Cal.App.3d 462, the victim had threatened the defendant multiple times before the day of the shooting. (Id. at pp. 470-472.) In People v. Bush (1978) 84 Cal.App.3d 294, the victim, who was the defendant's husband, attacked the defendant numerous times, most recently four weeks before the defendant shot him. (See id. at pp. 299-301.) We are aware of no case holding that this instruction is necessary where the victim and defendant met almost immediately before the killing.
C. Ineffective Assistance of Counsel
Burleson contends that his trial attorney rendered ineffective assistance in several respects. We deal with most of these claims in other sections of this opinion, but we address one instance separately here. Burleson argues that his attorney rendered ineffective assistance by failing to request that the court redact certain inflammatory statements from his interview with police. We disagree.
During his interview with police, an officer said, "Now you said you're on parole right now but you didn't know you were on parole." Burleson acknowledged he was on some form of parole or probation. Later in the interview, an officer asked Burleson if he was "pimpin' . . . out" Carter. Burleson denied that he was doing so, but acknowledged that he had "go[ne] to jail for pimpin'" based on what he claimed was a false accusation.
Burleson's claim of ineffective assistance of counsel fails because, even if we assume that these statements should have been redacted, they were too trivial to have prejudiced him. There was ample evidence that Burleson was a pimp, most notably the testimony of Carter, who worked as a prostitute for Burleson. His admission that he once served jail time for it could not have meaningfully altered the jury's impression of him. Similarly, his admission that he was on a form of parole or probation could not have prejudiced him because the parties stipulated that Burleson had a previous felony conviction. This stipulation was included in the jury instructions on possession of a firearm by a felon. Thus. his admission that he was on parole or probation could not have changed the jury's perception of him.
D. Excusing a Juror During Closing Arguments
On the final morning of the trial, just before closing arguments, the clerk informed the court that one of the jurors (Juror No. 12) was unable to find childcare and would need to leave by 2:30 p.m. At noon, with Burleson's trial attorney in the middle of his closing argument, the court called a recess until 1:30 p.m. and interviewed the juror. Juror No. 12 told the court that she would have to leave by 3:00.
The court decided to excuse Juror No. 12, explaining that "[a]s you can see, I'm not sure when we're gonna finish, and I think it will intrude into the time you need to take care of your [child]care issues, so [it would] probably be the best thing for us to excuse you and let you take care of your childcare issues. Even if we finish by 2:00, 2:30, there wouldn't be much time for you to deliberate and we'd have to send everybody else home and have to waste the rest of their afternoon."
Burleson objected, arguing that the court could accommodate the juror's absence by adjourning early that afternoon, noting that the trial was ahead of schedule, and that he would prefer for the juror to remain. The court nevertheless elected to excuse Juror No. 12 and to replace her with an alternate because it was difficult to predict how long the remaining arguments would last, and "I don't want to bring everybody back tomorrow and waste the rest of the afternoon."
Burleson contends that this was reversible error. He argues that there was no statutory authority for replacing the juror, and that the trial court's decision to do so deprived him of his Sixth Amendment right to trial by jury. We need not decide whether the trial court abused its discretion by replacing the juror because any error was harmless.
Under section 1089, the trial court may discharge a juror and replace that juror with an alternate "[i]f at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty." If the court discharges a juror without statutory authority to do so, reversal is not required unless the defendant can demonstrate that he was prejudiced. (People v. Thomas (1990) 218 Cal.App.3d 1477, 1486 (Thomas); People v. Delamora (1996) 48 Cal.App.4th 1850, 1856 (Delamora); People v. Armstrong (2016) 1 Cal.5th 432, 454 (Armstrong).)
We review the trial court's decision to discharge a juror under a heightened version of the abuse of discretion standard known as the demonstrable reality standard. (Armstrong, supra, 1 Cal.5th at p. 450.) "Under the demonstrable reality standard, a reviewing court's task is more 'than simply determining whether any substantial evidence in the record supports the trial court's decision.' [Citation.] '. . . It requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [good cause for removing the juror is] established. It is important to make clear that a reviewing court does not reweigh the evidence under either test. Under the demonstrable reality standard, however, the reviewing court must be confident that the trial court's conclusion is manifestly supported by evidence on which the court actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just the evidence itself, but also the record of reasons the court provides.' [Citation.]" (Id. at pp. 450-451.)
In this case, the trial court's stated justification for excluding Juror No. 12 was that the juror would need to leave by 3:00, potentially cutting short the deliberations for that day and inconveniencing the other jurors. Burleson argues that the trial court could have dismissed the jury early that day and allowed the jurors to resume deliberations the following day, and that this would not have inconvenienced the court unduly because the trial up to that point was running ahead of schedule.
We need not decide whether the court abused its discretion by removing Juror No. 12 in these circumstances because Burleson has not shown he was prejudiced. Although "[t]he right to a fair trial by an impartial jury is one of the fundamental constitutional rights of a criminal defendant[ ] [citations] . . . , a defendant's right to a fair and impartial jury does not entitle him to a jury composed of any particular individuals." (Thomas, supra, 218 Cal.App.3d at p. 1486.) For this reason, "where an alternate juror, approved by defendant in voir dire, is allowed to deliberate on the jury panel, the defendant bears a heavy burden to demonstrate that he was somehow harmed thereby." (People v. Hall (1979) 95 Cal.App.3d 299, 307.)
Thus, before finding prejudicial error, courts have required evidence that a juror's replacement altered the course of deliberations. This most often occurs in situations where the jury convicts the defendant shortly after the trial court has removed a juror who expressed dissenting views. (See, e.g., Delamora, supra, 48 Cal.App.4th at p. 1856; People v. Cleveland (2001) 25 Cal.4th 466, 473; Armstrong, supra, 1 Cal.5th at pp. 449-450.)
In this case, by contrast, Burleson cites no evidence to indicate that the removal of Juror No. 12 disadvantaged him. The trial court excused the juror before the jury had begun deliberations, and nothing in the record suggests that the jury would have decided the case differently if Juror No. 12 had remained on the panel.
E. Ability to Pay Fines and Fees
At the sentencing hearing, the trial court imposed a $60 court facilities fee (Gov. Code, § 70373), an $80 court operations assessment (§ 1465.8, subd. (a)(1)), and a $300 restitution fine (§ 1202.4). Burleson contends under People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168-1172 that the trial court violated his due process rights by imposing the fines and fees without considering whether he would be able to pay them.
We disagree. As we explained in detail in People v. Caceres (2019) 39 Cal.App.5th 917, 926-929, the imposition of fees and restitution fines does not ordinarily implicate due process or require trial courts in all cases to determine a defendant's ability to pay before imposing them. Nothing about Burleson's case suggests that it involves the "extreme facts" (see id. at p. 923) in which due process claims might be involved. Burleson also contends that the fines violated his protection from excessive fines under the Eighth Amendment to the United States Constitution and article I, section 7 of the California Constitution, but we do not understand how $460 in fines could be disproportional to his conduct in committing the murder, nor how it would be an excessive burden to pay this relatively modest amount from money he earns during his long sentence. Because Burleson's claim fails on the merits, we need not decide whether he forfeited it by failing to object to the imposition of the fines and fees.
F. Consideration of Franklin Documents at Sentencing
Because Burleson was 24 years old at the time he shot Ferrell, he is entitled to a youth offender parole hearing in his 25th year of incarceration, despite his aggregate minimum sentence of 44 years to life. (See § 3051, subd. (b)(3).) He was also entitled 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, 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 at the time of the offense so that the [Parole] Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors (§ 4801, subd. (c)) in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he [or she] was a child in the eyes of the law.' " (Franklin, supra, 63 Cal.4th at p. 284.)
In this case, the trial court sentenced Burleson before his attorney had submitted his mitigating documents in the record pursuant to Franklin. He contends that this was error, and that the Franklin hearing must be held prior to sentencing. He also contends that his attorney rendered ineffective assistance of counsel by failing to ensure that the sentencing hearing did not take place prior to the Franklin hearing.
The court in People v. Sepulveda (2020) 47 Cal.App.5th 291 rejected the same argument Burleson makes now, under reasoning we find persuasive. The court explained that the defendant'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." (People v. Sepulveda, supra, 47 Cal.App.5th at p. 300.)
Because a Franklin hearing is not designed to establish mitigating factors at sentencing, the trial court did not err by sentencing Burleson prior to the preparation of Franklin materials. Burleson also contends that his trial attorney rendered ineffective assistance of counsel by failing to ensure that Franklin documents were available to provide mitigating evidence at his sentencing hearing. This argument fails because Burleson has presented no evidence that any such mitigating evidence exists. Thus, he cannot show a reasonable probability that he would have obtained a better result at trial if his attorney had presented such materials. (See Strickland, supra, 466 U.S. at pp. 694-695; People v. Williams (1988) 44 Cal.3d 883, 937 ["the petitioner must carry his burden of proving prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel"].)
In his reply brief, Burleson contends that the record does not show whether a Franklin hearing has taken place and requests that we order the trial court to hold such a hearing upon remand. (See People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896-897.) At the sentencing hearing, Burleson's attorney informed the court that he was not yet finished gathering documents for a Franklin hearing. The court ordered trial counsel to notify the district attorney when he had prepared the relevant documents, and the court would then schedule a Franklin hearing. On this record, we cannot determine whether or not counsel failed in his duty regarding the Franklin hearing. Nothing, however, in our decision today prevents Burleson from filing a petition for habeas corpus if he can establish the existence of mitigating evidence that his attorney failed to produce for sentencing or at a Franklin hearing. Indeed, claims of ineffective assistance of counsel "are often more appropriately litigated in a habeas corpus proceeding" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267), where it is possible to examine why an attorney acted or failed to act as he did.
G. Discretion to Impose the Firearm Enhancement
In addition to finding Burleson guilty of murder, the jury found true allegations that he personally used a firearm in the commission of the murder (§ 12022.53, subd. (b)), that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and that he personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). Under section 12022.53, subdivision (h), recently enacted as part of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, pp. 5104-5106) (Senate Bill No. 620), the trial court had the authority to strike any or all of these enhancements in the interest of justice. The trial court declined to do so, stating that it "has considered whether or not to strike the enhancement. The court, based on the seriousness of the crime and the reasons I stated for imposing the high term, declines to strike the firearms enhancement." Thus, the court imposed an enhancement of 25 years to life under section 12022.53, subdivision (d), and stayed sentence on the remaining enhancements. (See § 12022.53, subd. (f).)
Burleson contends that this was an abuse of discretion. He claims that the trial court erred by stating that he was on probation or parole at the time of the offense, that the court exaggerated his prior criminal history, and he argues that there was nothing about this crime that would make it more cruel, vicious, or callous than any other second degree murder. He claims further that the court erred by failing to take into account the length of his 15-years-to-life sentence for murder, as well as his age, background and character. Finally, he argues that striking the enhancement would have been consistent with the principles of Senate Bill No. 620, in which the Legislature expressed concern for the length of sentences as a matter of justice, as well as for their effect in costing the state money to incarcerate prisoners.
We are not persuaded. As we explained in People v. Pearson (2019) 38 Cal.App.5th 112 (Pearson), "[t]he factors that the trial court must consider when determining whether to strike a firearm enhancement under section 12022.53, subdivision (h) are the same factors the trial court must consider when handing down a sentence in the first instance." (Pearson, supra, at p. 117.) Furthermore, " '[u]nless the record affirmatively reflects otherwise,' the trial court is deemed to have considered the factors enumerated in the California Rules of Court." (Ibid., quoting Cal. Rules of Court, rule 4.409.) The record in this case does not affirmatively demonstrate that the court failed to take into consideration the specific factors Burleson now argues. Although reasonable people might disagree as to whether to impose the 25-years-to-life enhancement under section 12022.53, subdivision (d), this is not sufficient to warrant reversing the trial court. Burleson has failed " ' " 'to clearly show that the sentencing decision was . . . arbitrary.' " ' " (Pearson, supra, at p. 116.) Thus, he has failed to show that the trial court abused its discretion.
H. Prior Prison Term Enhancement
The trial court imposed a one-year enhancement under section 667.5, subdivision (b) because Burleson had served a prison term and had not remained free of custody for at least five years. Shortly after the September 2019 sentencing hearing, the Legislature enacted Senate Bill No. 136 (Stats. 2019, ch. 590, § 1, p. 5235), which became effective January 1, 2020 and which restricted section 667.5, subdivision (b), so that it applies only to prior convictions for sexually violent offenses.
Burleson contends that he is entitled to benefit from the change in the law because he does not have a prior conviction for a sexually violent offense, and because his conviction was not yet final at the time the new law became effective. The Attorney General agrees, as do we.
Senate Bill No. 136 applies retroactively to defendants whose convictions were not final at the time the law became effective. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342; People v. Winn (2020) 44 Cal.App.5th 859, 872-873 (Winn).) As the court explained in Winn, "[g]enerally, a statute applies prospectively unless otherwise stated in the language of the statute, or when retroactive application is clearly indicated by legislative intent. (People v. Brown (2012) 54 Cal.4th 314, 319-320 . . . .) However, '[w]hen the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date.' (Id. at p. 323 . . . , citing In re Estrada (1965) 63 Cal.2d 740 . . . .) By eliminating the one-year enhancement for prior prison terms that were not imposed for sexually violent offenses, the newly amended section reduces the punishment for such offenses." (Winn, supra, 44 Cal.App.5th at p. 872.) The Legislature did not indicate otherwise, so we infer that Senate Bill No. 136 applies retroactively. (See Winn, supra, at p. 872.)
Because the trial court imposed the maximum sentence in this case, there is no need for the trial court to hold a new sentencing hearing. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.) Instead, "we will strike the enhancement[ ], modify the judgment, and affirm the judgment as modified." (See Winn, supra, 44 Cal.App.5th at p. 873.)
DISPOSITION
The one-year enhancement under section 667.5 is stricken. The judgment, as modified, is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.