Opinion
C066929
12-30-2016
THE PEOPLE, Plaintiff and Respondent, v. XENG SAETERN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 06F01200) OPINION AFTER REMAND
In a succession of cases beginning with Graham v. Florida (2010) 560 U.S. 48 (Graham), followed by Miller v. Alabama (2012) 567 U.S. ___ (Miller), and concluding with People v. Caballero (2012) 55 Cal.4th 262 (Caballero), the United States and California Supreme Courts explored the constitutional limits of government's power to punish children tried as adults. Responding to these decisions, the California Legislature enacted Senate Bill No. 260 (2013-2014 Reg. Sess.), adding section 3051 to the Penal Code, which provides minors sentenced to a determinate term of years or a life term an opportunity to prove their rehabilitation and secure release on parole after serving a prescribed term of confinement.
Undesignated statutory references are to the Penal Code.
In the original appeal brought by Xeng Saetern, who is serving a 100-year-to-life sentence for a murder he committed at age 14, we considered the principles articulated in Graham, Miller, Caballero, and their progeny, and the provisions of section 3051, and concluded that in light of section 3051 any sentencing error was harmless.
Defendant filed a petition for review with the California Supreme Court. The court granted the petition and held the matter. On August 17, 2016, the court transferred this matter to us with directions to vacate our prior decision and reconsider the cause in light of People v. Franklin (2016) 63 Cal.4th 261 (Franklin). Based on Franklin, we conclude defendant's constitutional challenge to his 100-year-to-life sentence is moot, but the matter must be remanded to the superior court to determine whether defendant had a sufficient opportunity to make a record of the youth-related mitigating factors that reflect his diminished culpability as a juvenile and will be available for consideration at a youth offender parole hearing as provided in section 3051. If the court determines defendant, who was sentenced before Miller, supra, 567 U.S. ___ and before the California Legislature enacted sections 3051 and 4801, did not have the opportunity to make the type of record Franklin envisions, the court will allow him 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." (Franklin, supra, 63 Cal.4th at p. 284.)
FACTS
The facts surrounding the shooting are undisputed. Nai Saechao recruited his cousin, Khae Saephan, to kill Nai's wife, Si Saeturn. Neither Nai nor his lover, Mimi Le, was present at the time of the murder. On December 29, 2005, Khae, Lo Fou Saephanh, and the 14-year-old shooter, defendant Xeng Saetern, drove to Si's place of employment and waited until she got off work. The young marksman walked down to the victim's car and shot her in the head and abdomen at close range while the other two waited in their car. Si and her four-month-old fetus died at the scene. (Facts from our earlier opinion, People v. Le (Apr. 22, 2011, C057217) [nonpub. opn.].)
Since several individuals share the same or similar surnames, we shall refer to the parties and others by their first names for clarity and ease of reference. No disrespect is intended.
Xeng confessed to the shooting. He did not know why anyone wanted the lady killed.
Codefendant Khae testified in his own defense. Despite the fact that during several interrogations he repeatedly denied shooting the victim, at trial he claimed that he, not Xeng, was the shooter. He purportedly told Xeng to admit he had shot the victim because Xeng was a juvenile and therefore would get less time. Khae told the jury he threatened to shoot Xeng and his parents if he did not "take the rap." Xeng complied.
The jury rejected the defense. The trial court sentenced Xeng to two terms of 25 years to life for each of the two murder convictions (§ 187, subd. (a)) and consecutive terms of 25 years to life for each of the two firearm enhancements (§ 12022.53, subd. (d)), for a total of 100 years to life in state prison. The court stayed execution of the 25-year-to-life sentence imposed for conspiracy to commit murder. (§ 654.)
DISCUSSION
I. BACKGROUND
In Graham, the United States Supreme Court held that the Eighth Amendment to the Constitution prohibits the imposition of a sentence of life without parole (LWOP) on a juvenile for any crime other than homicide. (Graham, supra, 560 U.S. 48 .) Thereafter, in Miller, heard and decided with a related case from Arkansas, Jackson v. Hobbs, the Supreme Court held that states cannot impose "mandatory life-without-parole sentences for juveniles" (Miller, supra, 567 U.S. at p. ___ ) but permitted the imposition of LWOP on juveniles convicted of murder following an "individualized sentencing" (id. at p. ___ ) that takes into account "how children are different" (id. at p. ___ ). More specifically, "The high court noted that such mandatory sentences preclude consideration of juveniles' chronological age and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surround them-no matter how brutal or dysfunctional. ([Miller, supra, 567 U.S. at p. ___ .) Thus, in Miller the high court did 'not foreclose a sentencer's ability' to determine whether it was dealing with homicide cases and the ' "rare juvenile offender whose crime reflects irreparable corruption." ' (Id. at p. ___ [, quoting Roper [v. Simmons (2005)] 543 U.S. [551,] 573 [. . . 161 L.Ed.2d 1]; see Graham, supra, 560 U.S. at [pp. 67-68] .)" (Caballero, supra, 55 Cal.4th at p. 268, fn. 4.)
Miller invalidates LWOP sentences where such a penalty is mandatory and imposed without respect to consideration of the background or age of the offender. Conversely, a sentence of LWOP resulting from "individualized sentencing" is permissible. And what is "individualized sentencing?" The clearest description is set forth in the Miller court's own summary of its holding: "To recap: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features--among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him--and from which he cannot usually extricate himself--no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth--for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. [Citations.] And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it." (Miller, supra, 567 U.S. at p. ___ .)
Our Supreme Court in Caballero described the Miller holding thusly: "The [Miller] court requires sentencers in homicide cases 'to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.' (Miller, supra, 567 U.S. at p. ___ .)" (Caballero, supra, 55 Cal.4th at p. 268, fn. 4, italics added.)
However, Caballero was not a homicide case. It involved a 110-year-to-life sentence imposed on a 16-year-old defendant convicted of attempted murder and the categorical bar on LWOP imposed by Graham in nonhomicide cases. Miller was cited for the proposition that the Graham bar applies to "all nonhomicide cases involving juvenile offenders, including the term-of-years sentence that amounts to the functional equivalent of a life without parole sentence . . . ." (Caballero, supra, 55 Cal.4th at p. 268, italics added.) The court concluded that "Graham's analysis does not focus on the precise sentence meted out. Instead, as noted above, it holds that a state must provide a juvenile offender 'with some realistic opportunity to obtain release' from prison during his or her expected lifetime. (Graham, supra, 560 U.S. at p. [82] [176 L.Ed.2d at p. 850].)" (Caballero, at p. 268.) The court encouraged legislative action: "We urge the Legislature to enact legislation establishing a parole eligibility mechanism that provides a defendant serving a de facto life sentence without possibility of parole for nonhomicide crimes that he or she committed as a juvenile with the opportunity to obtain release on a showing of rehabilitation and maturity." (Caballero, at p. 269, fn. 5.)
The court in Caballero indicated that " 'life expectancy' means the normal life expectancy of a healthy person of defendant's age and gender living in the United States." (Caballero, supra, 55 Cal.4th at p. 267, fn. 3.)
While this appeal was pending, the Legislature heeded the advice of the Supreme Court and enacted Senate Bill No. 260 (2013-2014 Reg. Sess.). The measure finds "that, as stated by the United States Supreme Court in Miller[, supra, 567 U.S. ___] 183 L.Ed.2d 407, 'only a relatively small proportion of adolescents' who engage in illegal activity 'develop entrenched patterns of problem behavior,' and that 'developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds,' including 'parts of the brain involved in behavior control.' The Legislature recognizes that youthfulness both lessens a juvenile's moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society. The purpose of this act is to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity, in accordance with the decision of the California Supreme Court in [Caballero] and the decisions of the United States Supreme Court in [Graham] and [Miller]." (Sen. Bill No. 260 (2013-2014 Reg. Sess.) ch. 312, § 1, pp. 2-3, italics added.)
At our request, the parties submitted supplemental briefs regarding the application of the measure to the present appeal.
Earlier, the Legislature enacted amendments to section 1170 that became effective January 1, 2013. (Stats. 2013, ch. 508, § 5.) Subject to exceptions not relevant here, section 1170, subdivision (d)(2) retroactively permits a defendant who was sentenced to LWOP for a crime committed as a juvenile to petition the court for recall and resentencing after serving at least 15 years of that sentence. Defendant was not sentenced to LWOP, and therefore section 1170, subdivision (d)(2) does not apply by its terms to his sentence.
Senate Bill No. 260 (2013-2014 Reg. Sess.), codified as section 3051, provides an opportunity for a juvenile offender to be released on parole irrespective of the sentence imposed by the trial court by requiring the Board of Parole Hearings to conduct "youth offender parole hearings" (Sen. Bill No. 260 (2013-2014 Reg. Sess.) ch. 312, § 4, p. 7) to consider the release of juvenile offenders sentenced to prison for specified crimes. It provides for a youth offender parole hearing during the 15th year of incarceration for a prisoner serving a determinate sentence (§ 3051, subd. (b)(1)), a hearing during the 20th year of incarceration for a prisoner serving a life term less than 25 years to life (§ 3051, subd. (b)(2)), and a hearing during the 25th year of incarceration for a prisoner serving a life term of 25 years to life (§ 3051, subd. (b)(3)). Section 3051, subdivision (d) requires the Board of Parole Hearings to "conduct a youth offender parole hearing to consider release." Section 3051, subdivision (f)(1) requires that any psychological evaluations and risk assessment instruments be administered by a licensed psychologist employed by the board and that the evaluations and instruments "take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual."
The measure exempts from its provisions inmates who were sentenced pursuant to the three strikes law (§§ 667, subds. (b)-(i), 1170.12), the Chelsea King Child Predator Prevention Act of 2010 (formerly and more commonly known as Jessica's Law) (§ 667.61), or "to life in prison without the possibility of parole" (§ 3051, subd. (h)). --------
So, to summarize:
1. A sentence of LWOP cannot be imposed on a juvenile defendant for a nonhomicide offense.
2. A mandatory sentence of LWOP cannot be imposed on a juvenile defendant for any offense.
3. A discretionary LWOP sentence can be imposed on a juvenile defendant for a homicide offense provided the sentencing takes into account the factors described in the Miller case that make children different for sentencing purposes.
4. In California, the bar on limitations on juvenile LWOP sentences applies to sentences for a term of years that is the functional equivalent of an LWOP sentence; a juvenile defendant must be provided with a realistic opportunity to obtain release during the juvenile's expected lifetime.
5. Under section 3051, juveniles who qualify are afforded a periodic opportunity for release on parole regardless of the sentence imposed.
II. XENG'S SENTENCE AND THE EFFECT OF SECTION 3051
A. The sentence is not a mandatory LWOP sentence.
Xeng argues that his sentence violates Miller because at least 75 of the 100 years the court imposed are mandatory. He calculates his sentence as follows: the court had the option to impose consecutive or concurrent sentences for each of the two counts of murder. Pursuant to section 12022.53, former subdivision (d), however, each of the enhancements must be served consecutively: "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
There is no question that the court must order an enhancement pursuant to section 12022.53, former subdivision (d) to run consecutively to the underlying count. But we disagree with Xeng that the entire sentence (the count plus the enhancement) cannot run concurrently to other counts, including the enhancements applicable to those counts. In People v. Oates (2004) 32 Cal.4th 1048, 1060, the Supreme Court observed: "[A]s the People note, a trial court can mitigate concerns about sentencing inequities by imposing concurrent, rather than consecutive, sentences where multiple subdivision (d) enhancements are found true." Thereafter, the court upheld concurrent sentencing in the factually analogous case, People v. Smith (2005) 37 Cal.4th 733 (Smith).
In Smith, the defendant was convicted of the attempted murder of a mother and her baby, having fired one shot into the car in which they were traveling. (Smith, supra, 37 Cal.4th at p. 736.) Because the bullet missed the mother and child, the enhancement for discharging a firearm set forth in section 12022.53, subdivision (c) was found true. (Smith, at p. 738.) Subdivision (c), like former subdivision (d) of section 12022.53, states that the enhancement must run consecutively. The trial court imposed the middle term of seven years for the attempted murder of the mother, with a consecutive 20-year term for the firearm enhancement, to be served concurrently with an identical 27-year combined term for the attempted murder of the baby and the accompanying firearm enhancement. (Smith, at p. 738.) Both the Court of Appeal and the Supreme Court affirmed the sentence. (Id. at p. 736.)
According to the Supreme Court, therefore, Xeng's maximum mandatory sentence was 50, not 75, years. Xeng's threshold proposition that he was subject to a mandatory sentence of 75 years, which constitutes cruel and unusual punishment under a Miller/Caballero analysis, is not supportable.
B. Xeng's eligibility for parole consideration under section 3051 and its consequences.
Xeng asserts that he does not fall within the ambit of section 3051 because he was sentenced to a life term with a minimum greater than 25 years. Not so. Defendant is eligible even though his aggregate term is 100 years to life in prison because, pursuant to section 3051, subdivision (b)(3), any of his four 25-year-to-life sentences can serve as the "controlling offense" and the new parole eligibility scheme is based on the sentence for the controlling offense. Thus, he will be eligible for a youth offender parole hearing once he serves one of his 25-year-to-life sentences.
Defendant and the Attorney General agree his constitutional challenge to the sentence is now moot. In Franklin, the Supreme Court held the Legislature's enactment of section 3150, which provides juvenile offenders with an opportunity for parole at least by their 25th year of incarceration, renders moot an assertion that a lengthy sentence is the functional equivalent of life without the possibility of parole, in violation of Miller, supra, 567 U.S. ___ . (People v. Cornejo (2016) 3 Cal.App.5th 36, 66, rehg. den. & opn. mod.(Oct. 3, 2016, No. C072053) ___ Cal.App.4th ___ .) The new legislation explicitly supersedes the mandated sentences of persons who were under the age of 23 at the time of their offense in order to bring juvenile sentencing into conformity with Miller and its progeny. (Franklin, supra, 63 Cal.4th at p. 277.) "The statute simply and clearly makes the current sentencing scheme constitutional by providing each juvenile offender, universally and on a specified schedule, with the meaningful opportunity for release within their lifetime that the Eighth Amendment demands." (People v. Scott (2016) 3 Cal.App.5th 1265, 1283, opn. mod. (Nov. 1, 2016, No. E060028) ___ Cal.App.4th ___.) As a consequence, section 3051 abolished de facto life sentences.
Nevertheless, the Supreme Court in Franklin remanded the matter to the trial court for the limited purpose of determining whether or not the juvenile offender "was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) The court recognized that sections 3150 and 4801 "contemplate that information regarding the juvenile offender's characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the [Parole] Board's consideration. For example, section 3051, subdivision (f)(2) provides that '[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime . . . may submit statements for review by the board.' Assembling such statements 'about the individual before the crime' is typically a task more easily done at or near the time of the juvenile's offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away." (Id. at pp. 283-284.)
It was unclear in Franklin whether the juvenile offender had sufficient opportunity "to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) The court instructed that if the trial court determined Franklin had been denied the opportunity to establish a record, "then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. Franklin 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 at the time of the offense so that the 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 was a child in the eyes of the law' [Citation.]" (Ibid.)
As in Franklin, defendant was sentenced before the United States Supreme Court's decision in Miller, supra, 567 U.S. ___ recognizing the diminished culpability of most children. Defendant was only 14 years old at the time of the shooting. But at the time he was sentenced in 2010, the court did not have the benefit of the Supreme Court's insights in Miller, nor did the defendant have the benefit of the California Legislature's later-enacted legislation to insure that the youth-related factors identified in Miller would be taken into account at youth parole hearings mandated at either 15, 20, or 25 years after sentencing. While there was some evidence of parental abuse and defendant's receptivity to rehabilitation, neither the parties nor the trial court could have foreseen the dramatic changes in the law involving the sentencing of juvenile offenders that would necessitate the making of a complete record of what would become Miller's youth-related factors.
III. THE IMPLICATIONS OF PEOPLE V. DILLON
Relying on the extraordinary facts of People v. Dillon (1983) 34 Cal.3d 441 (Dillon), defendant makes the radical request that we order the trial court to ignore the statutory sentencing scheme if necessary to comport with Miller. But Miller is much more humble in its aspirations than defendant appreciates, and he strays far from both the holding and the spirit of Miller in suggesting we encourage a trial court to ignore the Legislature's sentencing regimen in the name of individualized sentencing. His argument need not detain us long.
As a fundamental attribute of the separation of powers, it is the legislative, and not the judicial, branch that is imbued with the responsibility to design a comprehensive sentencing scheme for those offenders who break the social contract and violate our criminal laws. (People v. Carmony (2005) 127 Cal.App.4th 1066, 1086.) We can find nothing in Miller at odds with this fundamental principle. Indeed, Miller itself eschewed the more aggressive opportunity it had to declare that all mandatory LWOP sentences for homicides committed by juveniles are categorically unconstitutional under the Eighth Amendment. The court concluded: "We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. . . . Because that holding is sufficient to decide these cases, we do not consider Jackson's and Miller's alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger." (Miller, supra, 567 U.S. at p. ___ , italics added & citation omitted.)
Nor does an outlier like Dillon justify wholesale dismantling of a statutory sentencing scheme under the guise of the Eighth Amendment. We recognize that the California Supreme Court took the unusual step of reducing a juvenile's first degree murder conviction to second degree murder based on a unique combination of facts which the court felt clearly demonstrated diminished culpability with the vagaries of the felony-murder rule. But none of those anomalies are present here. Simply put, the circumstances of the murders defendant committed are not clouded by any of the factors that reduced Dillon's culpability. If, as Miller advises, defendant's culpability should be diminished because of his age and attendant misfortunes, it is only in the context that a Legislature cannot mandate he spend his natural life in prison without the opportunity to demonstrate that he no longer poses a threat to society. Because California does not mandate life terms without the possibility of parole and section 3051 provides defendant with a meaningful opportunity to obtain parole, defendant was not harmed by any claimed constitutional violation.
DISPOSITION
Following Franklin's directive, as we must, we remand the matter to the trial court to determine whether, in fact, defendant was afforded a sufficient opportunity to make a record, and if not, to allow him 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." (Franklin, supra, 63 Cal.4th at p. 284.) The Attorney General does not object to a remand for this limited purpose.
RAYE, P. J. We concur: NICHOLSON, J. DUARTE, J.