Opinion
C084200
08-27-2018
THE PEOPLE, Plaintiff and Respondent, v. TEVIN TAYLOR, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STK-CR-FECOD-2014-0006076)
A planned purse snatch turned into a double murder case when two people (Ritchie Rasmee and Sokhunthear Hin) were killed in a vehicle collision as the robbers fled the scene, a classic application of the felony-murder rule. The driver-robber (Brittney Xaviera Tamayo) pleaded guilty to two counts of voluntary manslaughter in exchange for her testimony against defendant Tevin Taylor, the robber who snatched Maria B.'s purse. The jury found defendant guilty of two counts of murder and one count of robbery. (Pen. Code, §§ 187, subd. (a), 211.) The trial court sentenced defendant to prison for a total unstayed term of 50 years to life. Defendant timely filed this appeal.
On appeal defendant contends: (1) trial counsel provided ineffective assistance of counsel by conceding guilt on the robbery count; (2) the trial court should have instructed on second degree murder; (3) the court should not have imposed consecutive murder sentences; and (4) a sentencing remand is required because of defendant's age at the time of the crimes. The Attorney General concedes the last claim, and we agree with the parties that defendant is entitled to a limited sentencing remand based on new legislation. As we explain, the remainder of defendant's claims lack merit.
FACTS
On April 24, 2014, defendant robbed Maria B. by forcibly snatching her purse in a parking lot and, with his girlfriend-accomplice as getaway driver, fled the scene at high speed in a white SUV. During their flight, they ran a red light and broadsided a car, killing its occupants.
Maria B. testified that at approximately 7:00 p.m. she had been shopping at a market in Stockton with her children. As she was loading groceries into her minivan, someone took her purse from her shopping cart. She grabbed it back, and during the struggle she fell and hurt her knee and wrist. She saw a red car following the SUV in which her assailant fled. She heard sirens and drove to a nearby intersection, where she saw the SUV had been in a crash. Her purse was inside the SUV. Photographs of her injuries were presented at trial.
A bystander was driving in the parking lot and saw the purse snatch; he saw the victim grab her purse back. There was a struggle, she fell and was dragged because the purse snatcher was in a moving vehicle, then she released her purse. He followed the SUV with his red car. He saw the driver of the SUV run a red light and broadside another car. Two people got out of the SUV and walked away. Another witness also saw two people leave from the SUV (the male exited from the backseat on the passenger side) and he photographed them. The victims died almost immediately. The collision was at or near a residential area.
Tamayo testified she had been defendant's girlfriend for several years. They regularly smoked marijuana but defendant had no job and needed money. On this occasion she drove up and down the rows of the parking lot as defendant sat in the back of the SUV, scouting for a purse-snatch victim. When she slowed down at his direction after seeing the potential victim, he jumped out and then returned, and as she drove off she heard a scream. Defendant yelled at her to "go" several times. Defendant pointed out a red car that was following them. After she broadsided the car occupied by the victims, she and defendant left the area. She called her mother, returned to the accident scene, and spoke to the police. She first said someone forced her to drive at gunpoint. At the station she eventually told the truth. About a month before, she and defendant did something similar (defendant snatching a purse) at the same market. She pleaded guilty to two counts of voluntary manslaughter in this case and received a sentence of 22 years in prison in exchange for her truthful trial testimony.
On September 15, 2014, a CHP officer stopped the car defendant was driving and arrested him; defendant gave a false name, fled, and was then captured. Defendant, when questioned the next day by another officer, claimed he had been arrested in a "DUI manslaughter" case but had merely been the passenger. Defendant told the officer that they were chased, ran a red light, crashed into another car, and he and his girlfriend ran away. He admitted that while in the parking lot he grabbed a purse and "the lady fell over" but claimed he did not touch her. He admitted a car chased them as they drove away "and we crashed." He admitted snatching a purse about a month before with Tamayo driving in the same parking lot.
At trial defendant testified he had stolen a purse from that parking lot about a month before the charged incident. The couple meant to do the same thing again. He did not touch Maria B. and there was no struggle; he took her purse from a shopping cart but she screamed and fell as the contents of her purse spilled out. He did not yell at Tamayo and he did not tell her they were being followed; she told him a car was following them and then she sped up. He saw her drive through a red light before the collision; he was thrown back by the airbag and crawled out a back window. He told her to leave and they left. He learned she had been arrested, so when he was pulled over by the CHP he lied and then fled. He and Tamayo were chronic marijuana users, but he had no job and they needed money. About 10 years before trial, when he was 15, he got into trouble for a residential burglary.
DISCUSSION
I
Ineffective Assistance of Counsel
Defendant first contends trial counsel was ineffective because he conceded defendant committed a robbery, and felony-murder liability hinged on whether a robbery took place. The record does not support the claim.
A. Background
During jury selection and in opening statements trial counsel conceded defendant committed robbery but not that he was guilty of murder. During an instructional conference held after all evidence had been heard, counsel stated he had not previously known how defendant would testify, but if believed by the jury, defendant's testimony supported an instruction on the lesser included offense of grand theft of the purse. Although counsel noted other evidence did show force was used, he pointed out that defendant had testified there was no force. Further, if the jury found only grand theft rather than robbery, the murder charge would be untenable. Counsel had not prepared for this but, given defendant's testimony, it was now a viable alternate theory of liability.
We have held that a theft of a bag from a shopping cart is grand theft, because the owner is present and exercising control over the property. (See In re George B. (1991) 228 Cal.App.3d 1088, 1091-1093.) We do not discuss the possible effect of the later-enacted Proposition 47 (approved November 4, 2014) on defendant's claims, an issue he has not briefed.
The relevant factual difference is that while theft is the taking of property generally, robbery is the taking of property via force or fear. (See 2 Witkin, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 85, p. 119 ["Because robbery is basically an 'aggravated' or 'compound' larceny, the elements are those of larceny [citation] with the additional aggravating circumstances of force or fear"].) The relevant legal difference is that a death that occurs during the commission of a completed or attempted robbery (including the immediate flight therefrom) can be deemed a felony murder, but death during the commission of a theft cannot. (See Pen. Code, § 189 [listing felonies that may support felony murder]; 1 Witkin, supra, Crimes Against the Person, §§ 151, 189, pp. 954, 1003.)
The prosecutor argued defendant's testimony still showed force or fear, because he admitted the victim screamed and that he saw her fall to the ground. The trial court instructed the jury on both robbery and grand theft.
In opening statements and in closing argument the People based their case only on felony murder. Defense counsel argued to the jury that defendant should not be convicted based on Tamayo's actions. He conceded defendant was guilty of robbery but discouraged the jury from returning a murder verdict. "Who's responsible for the robbery? Who's responsible for the murders? And you have to draw this line. You have to decide is [defendant] responsible for [Tamayo's] driving conduct?" The People's view was both were equally responsible but defense counsel emphasized Tamayo was given a lenient sentence although her driving was the instrument of death. Counsel argued the facts did not fit the legal definition of felony murder in part because there was no coherent plan to commit the robbery; in any event the robbery had ended before the collision because the place of relative safety was the SUV itself.
The jury found defendant guilty of all charges before it.
B. Legal Standards
A criminal defendant is entitled to the effective assistance of counsel, whether appointed or retained. (See Cuyler v. Sullivan (1980) 446 U.S. 335, 344-345 [64 L.Ed.2d 333, 344]; People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) A claim of ineffective assistance of counsel has two elements: The defendant must show counsel's actions (or omissions) fell below professional norms, and also must show resulting prejudice. (See People v. Ledesma (1987) 43 Cal.3d 171, 217-218 (Ledesma).)
"In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny. [Citations.]" (Ledesma, supra, 43 Cal.3d at p. 216; see Strickland v. Washington (1984) 466 U.S. 668, 689 [80 L.Ed.2d 674, 694] [courts must "eliminate the distorting effects of hindsight," "reconstruct the circumstances," and "evaluate the conduct from counsel's perspective at the time"].)
On direct appeal, we consider only the record before us. " 'In some cases . . . the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.' [Citation.]" (Ledesma, supra, 43 Cal.3d at p. 218, italics added.) When a defendant attacks reasons for counsel's decisions not shown by the record, her or his remedy lies in habeas corpus, where the relevant facts can be found. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
C. Analysis
Appellate counsel asserts there was "no conceivable benefit" to defendant from trial counsel's decision to concede robbery and also asserts the robbery concession operated as a concession of guilt of the murders.
The last point is not well taken because defense counsel expressly refused to concede guilt as to the murders. Counsel tried to thread a needle by conceding defendant committed robbery but arguing that the robbery was over before the killings--and thus the felony-murder rule did not apply--and that in any event it was unfair for defendant to shoulder the sole liability for the murders where he did not cause the deaths. This was an uphill strategy, but we cannot say it was irrational given the strong prosecution evidence and the felony-murder rule.
As for conceivable benefit to conceding guilt on the robbery count, as the Attorney General points out, trial counsel could reasonably conclude the evidence of robbery--even if not conclusive--was too steep to overcome and therefore that contesting the robbery based on defendant's testimony and pretrial statements would alienate the jury in a case involving the deaths of two innocent people. In other words, counsel could conclude the best course would be to offer the jury a serious charge (robbery) as an alternative to the more serious charge of murder, rather than press the jury to accept defendant's testimony over significant contrary evidence. Although the jury had the grand theft instruction before it by the time it deliberated, defense counsel had already chosen the tactic and presented the case as only a robbery case--not murder--from opening statements forward. Counsel would have lost credibility by arguing an entirely different theory in closing, based only on his client's surprise testimony, which was contradicted by other evidence heard by the jury. Avoiding alienating a jury can be a rational tactic.
"Counsel may have concluded that honesty and candor with the jurors was necessary so as not to lose credibility with them." (People v. Gurule (2002) 28 Cal.4th 557, 597; see People v. Mayfield (1993) 5 Cal.4th 142, 177 ["candor may be the most effective tool available to counsel"]; Knowles v. Mirzayance (2009) 556 U.S. 111, 127 [173 L.Ed.2d 251, 264] ["Counsel . . . is not required to have a tactical reason--above and beyond a reasonable appraisal of the claim's dismal prospects for success--for recommending that a weak claim be dropped"]; cf. People v. Diggs (1986) 177 Cal.App.3d 958, 970 ["[defense counsel's] closing argument effectively withdrew a crucial defense and admitted his client's guilt without his client's consent. . . . [T]here is simply no plausible tactical explanation for [defense counsel's] bizarre argument"].)
Here, defense counsel gave the jurors a tenable way to express any doubts or sympathies they might have had by inviting them to convict defendant only of robbery and leaving Tamayo to face the consequences for directly killing the victims. This is so regardless of whether the jury, on these facts, was compelled by law to find that any robbery had not been completed, as defendant's briefing argues. (See, e.g., People v. Thongvilay (1998) 62 Cal.App.4th 71, 77-81 [fatal collision during immediate flight from burglary establishes felony murder].) Inviting the jury to draw favorable factual inferences when the law and the facts are adverse is not an uncommon strategy.
Nor do we accept appellate counsel's view that trial counsel must not have spoken to defendant to learn how he would testify, and thereby failed to properly investigate the case. The record is silent about attorney-client discussions.
Because the record shows a plausible and rational tactical basis for trial counsel's actions, we must reject the claim of ineffective counsel. If trial counsel acted from lack of preparation or ignorance of the law or facts, those matters are not reflected by the appellate record and defendant's remedy lies in habeas corpus.
The recent decision in McCoy v. Louisiana (2018) ___ U.S. ___ does not change our view. McCoy claimed he was not present at the charged killings, but over his objections, his trial attorney--trying to avoid the death penalty for McCoy-conceded that McCoy killed the victims. (Id. at pp. ___ [200 L.Ed.2d at pp. 827-829].) McCoy distinguished a prior case in which a defense attorney had proposed a similar tactic to a client and the client remained silent. (Id. at pp. ___, ___ [200 L.Ed.2d at pp. 827, 831-832]; see Florida v. Nixon (2004) 543 U.S. 175 .) McCoy held the defendant--not the attorney--controlled the decision whether to press a claim of factual innocence: "Autonomy to decide that the objective of the defense is to assert innocence" fell in the same category of client-controlled decisions as "whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal." (McCoy, supra, at p. ___ .)
Unlike in McCoy, defendant in this case conceded that he participated in a crime at the parking lot. His counsel merely conceded the crime was robbery rather than theft. Perhaps more importantly, unlike in McCoy, the record here does not show what counsel discussed with defendant and does not show that defendant objected to the tactical concession. Assuming the new rule announced in McCoy applies retrospectively--a point on which we express no opinion--and assuming defendant objected to the concession, defendant's remedy, if any, would lie in habeas corpus.
Accordingly, on this record we reject the claim that trial counsel's tactical decision to concede the robbery count either fell below professional standards or violated defendant's rights to control fundamental trial decisions. Thus we need not reach prejudice to hold that ineffective assistance of counsel is not shown on this record.
II
Second Degree Murder Instructions
At the preliminary hearing and at trial, the prosecution was based only on felony murder. The trial court instructed the jury only on felony murder. But defendant points to the information, which used boilerplate language referring to premeditation and deliberation. Defendant reasons the "accusatory pleading test for determining the applicability of lesser included offenses" applies and the jury should have been instructed on second degree murder. We agree the prosecutor's pleading opened the door to defendant's claim, but disagree that the trial court had a duty to instruct on second degree murder. Further, on this record we cannot say trial counsel provided ineffective counsel by not requesting such an instruction.
The amended complaint also alleged two counts of premeditated murder.
In People v. Banks (2014) 59 Cal.4th 1113, the information alleged premeditated murder although the prosecution's sole theory was felony murder. (Id. at p. 1157.) Our Supreme Court held that because there was evidence to support ordinary murder, instructions on lesser offenses to murder were required. (Id. at pp. 1160-1161.) In the recent case of People v. Gonzalez (2018) 5 Cal.5th 186 at pages 197-198, the court reached a similar conclusion.
Defendant outlines his claim as follows:
"In [defendant's] case, there was evidence to sustain a finding of implied malice and second degree murder based on evidence that [defendant] encouraged Tamayo to drive at a high rate of speed through city streets [and run a red light]. If instructed correctly with second degree murder as a lesser included offense, the jury could have found that [defendant] shared Tamayo's mental state of implied malice and aided and abetted her reckless driving by encouraging her to speed in a residential neighborhood with conscious disregard for human life."
Counsel posits that Tamayo's method of driving (speeding and running a red light in or near a residential area) followed by callous indifference to the consequences (leaving the scene despite injured victims) reflected a conscious disregard for human life that could support a second degree murder verdict. And as defendant points out, the prosecutor argued that defendant goaded Tamayo into driving fast. Therefore, defendant posits that he could be liable for second degree murder on a theory of aider liability.
There is a developed line of cases holding that similar kinds of reckless driving and indifference to the consequences can support a verdict of second degree murder. Many cases involve drunken driving derived from the "Watson" implied malice murder decision. (See People v. Watson (1981) 30 Cal.3d 290, 300 ["malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life"].) But Watson did not create a new crime, it explained how implied malice murder could apply in cases where a driver understands the potentially fatal consequences posed by the method of driving (there, drunk driving) and declined "to prescribe a formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach." (People v. Olivas (1985) 172 Cal.App.3d 984, 989.)
Thus, implied malice murder collision cases are not limited to intoxicated drivers who cause fatal collisions, but extends to other drivers who act with conscious disregard for human life. (See, e.g., People v. Canizalez (2011) 197 Cal.App.4th 832, 837-838, 842-844 [prior reckless driving, some drinking, then drag racing and leaving scene]; People v. Moore (2010) 187 Cal.App.4th 937, 939, 941 [speeding, unsafe passing, leaving scene]; People v. Fuller (1978) 86 Cal.App.3d 618, 628-629 [speeding to evade police].)
Given the broad reach of implied malice murder as illustrated by these cases, a hypothetical jury that rejected felony murder plausibly could have found that Tamayo, by speeding through city streets to avoid capture after a robbery and by leaving the scene (showing indifference for the victims), committed second degree murder. But whether her passenger defendant could be liable for second degree murder because he encouraged her to speed presents further questions.
There are two kinds of aider liability. " 'First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also "for any other offense that was a 'natural and probable consequence' of the crime aided and abetted." [Citation.]' This case involves the second form of aider and abettor culpability." (People v. Chiu (2014) 59 Cal.4th 155, 158 (Chiu), quoting People v. McCoy (2001) 25 Cal.4th 1111, 1117.)
We agree with the Attorney General that defendant could not prevail on the first kind of aider liability, direct aiding of a target offense of second degree murder, because logically he could not intend to aid an implied malice murder. (Cf. People v. Beeman (1984) 35 Cal.3d 547, 560 [a direct aider must act "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense"].) Only the second form of aider liability, triggering the natural and probable consequences doctrine, could apply.
An unintended or "nontarget" offense is a natural and probable consequence of the intended or "target" offense if a reasonable person in defendant's shoes would or should have known that the nontarget offense was a reasonably foreseeable consequence of the target offense; that causal question is answered by the jury. (See Chiu, supra, 59 Cal.4th at pp. 161-162.) " 'Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime.' [Citation.]" (Id. at p. 164, quoting People v. Canizalez, supra, 197 Cal.App.4th at p. 852.) "In the context of murder, the natural and probable consequences doctrine serves the legitimate public policy concern of deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing. A primary rationale for punishing such aiders and abettors--to deter them from aiding or encouraging the commission of offenses--is served by holding them culpable for the perpetrator's commission of the nontarget offense of second degree murder. [Citation.]" (Chiu, supra, at p. 165.)
For purposes of argument we will assume that given the circumstances as they were known to defendant, a jury could have found that a Watson murder was a natural and probable consequence of speeding away from a robbery through city streets.
But still the trial court had no duty to instruct on this theory of aider liability absent a request. (See People v. Prettyman (1996) 14 Cal.4th 248, 269 [duty sua sponte to instruct on target offenses "arises only when the prosecution has elected to rely on the 'natural and probable consequences' theory of accomplice liability and the trial court has determined that the evidence will support instructions on that theory"]; People v. Huynh (2002) 99 Cal.App.4th 662, 677-678 [although a trial court ordinarily must instruct sua sponte on lesser included offenses supported by the evidence, Prettyman held there is no duty sua sponte to instruct on target offenses unless request by the prosecutor].)
Defendant's briefing ignores Prettyman and argues that trial counsel provided ineffective assistance for not requesting instructions on second degree murder as the natural and probable consequence of the target crime of speeding on these facts. Defendant argues that "[i]t is inconceivable that counsel would have wanted [defendant] to face only the choice of a complete acquittal or first degree murder verdicts . . . given that two young people were killed in the tragic car crash, which made it extremely unlikely the jury would completely exculpate [defendant]."
We will assume for purposes of argument that a defense attorney can request such an instruction but do not decide whether such a duty arises only when the prosecutor seeks such instruction, as the Attorney General argues. (Cf. People v. Huynh, supra, 99 Cal.App.4th at p. 678 [declining to reach whether duty to instruct arises where defense counsel makes the request for instruction on target offenses].)
We reject this claim of lack of rational tactical reasons on essentially the same ground that we rejected the claim raised in part I, ante, regarding the robbery concession. The evident defense strategy was to convince the jury that Tamayo was solely liable for the killings, and to hold defendant liable for the robbery. As we have indicated, this was a facially rational path given the extremely strong evidence of robbery and the two killings that occurred during the immediate flight therefrom. Counsel could easily conclude that pursuing a strained and largely academic aider-liability theory would cause the jury to question everything else he argued. (Cf. People v. Gurule, supra, 28 Cal.4th at p. 597; People v. Mayfield, supra, 5 Cal.4th at p. 177.)
The record on appeal does not establish that trial counsel's failure to request aider instructions occurred in ignorance of the law or facts, rather than from rational tactical decisions. Accordingly, defendant's remedy, if any, is via habeas corpus. (See People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
III
Consecutive Sentencing
Defendant claims abuse of discretion in imposing consecutive sentences on the two murder counts. But the facts show an unexceptional application of the felony-murder rule, robbers killing while in active flight. (See People v. Young (1992) 11 Cal.App.4th 1299, 1305-1306; People v. Johnson (1992) 5 Cal.App.4th 552, 559-561; People v. Fuller, supra, 86 Cal.App.3d at pp. 628-629.) Defendant was convicted of two counts of murder; his sentence punished him separately for each.
The claim is not forfeited as the Attorney General contends. Trial counsel argued for a concurrent term, thereby preserving the claim for this appeal. --------
Defendant's briefing reargues factors that might have supported leniency, and stresses Tamayo's lighter sentence. But Penal Code section 669 "grants the trial court broad discretion to impose consecutive sentences when a person is convicted of two or more crimes." (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) To show a trial court abused its sentencing discretion requires showing that no rational jurist would have imposed that sentence, not just that another jurist might have acted differently. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) And one valid factor is enough to support a consecutive sentencing decision. (See People v. Osband (1996) 13 Cal.4th 622, 728-729.)
The trial court acknowledged that Tamayo had received a lighter sentence, but also pointed out that she had no criminal record, unlike defendant. The court noted that there was evidence of a second, uncharged, robbery. Defendant showed some remorse, but also had explained that the crime was committed because Tamayo needed money, which minimized his contrition. He goaded Tamayo to flee the scene and drive more quickly. And there were two murder victims.
None of the comments made by the trial court are unsupported by the record or legally infirm. In particular, the court's reference to the earlier robbery shows that this was not a spur-of-the-moment decision but the execution of a planned (albeit poorly) robbery. "It was obviously premeditated," and although "the robbery victim was not killed, the subsequent death of a bystander during appellant's reckless high-speed flight . . . involves an application of the felony-murder rule which is by no means bizarre or unforeseeable." (People v. Young, supra, 11 Cal.App.4th at p. 1309 [rejecting cruel punishment claim].) The court explained that Tamayo had no prior record, which is one rational basis for distinguishing the two different outcomes. The fact that defendant's prior record was as a juvenile is relevant, but not dispositive, as he suggests. And as defendant concedes, a different outcome for an accomplice does not dictate the proper sentence for a defendant. (See, e.g., People v. Foster (1988) 201 Cal.App.3d 20, 26-27.) More importantly, the fact there were two victims amply justifies consecutive sentences. (See People v. Calhoun (2007) 40 Cal.4th 398, 408 [in case involving two counts of gross vehicular manslaughter, "[t]here is no persuasive reason why the trial court should not be allowed to consider the fact of multiple victims as a basis for imposing either the upper term or a consecutive sentence, although it cannot do both"].)
No abuse of sentencing discretion is shown on this record.
IV
Sentencing Remand
The parties agree that defendant was 23 at the time he committed the instant murders and that he therefore is entitled to a remand for a hearing to make a factual record that can be used at a future youth offender parole suitability hearing pursuant to Penal Code section 3051. (See People v. Franklin (2016) 63 Cal.4th 261, 276-284.) Penal Code section 3051 was amended during the pendency of this appeal; effective January 1, 2018, it generally applies to defendants who were "25 years of age or younger" when they committed their crimes. (Stats. 2017, ch. 684, § 1.5.)
We agree with the parties that because defendant now falls within the statute's ambit he is entitled to a remand for a new sentencing hearing consistent with section 3051 and Franklin, because he did not necessarily have the incentive to muster and submit to the trial court all evidence that might be relevant to a future parole hearing. (See People v. Costella (2017) 11 Cal.App.5th 1, 8-10; People v. Jones (2017) 7 Cal.App.5th 787, 819-820; People v. Perez (2016) 3 Cal.App.5th 612, 619.)
DISPOSITION
The cause is remanded for a new sentencing hearing consistent with this opinion and the judgment is otherwise affirmed.
/s/_________
Duarte, Acting P. J. We concur: /s/_________
Hoch, J. /s/_________
Renner, J.