Opinion
C080979
10-25-2019
THE PEOPLE, Plaintiff and Respondent, v. TYRIE ALLEN THOLMER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F07076)
Less than one month before his 18th birthday, defendant Tyrie Allen Tholmer shot Dominique Baker three times in the back and once in the leg, killing him. Baker, who was confined to a wheelchair because of cerebral palsy, was attempting to transfer himself out of his wheelchair into a relative's car when defendant shot him. The attack appeared to be unprovoked and there was no evidence that defendant and Baker knew each other. However, Baker's cousin Daymon Wood knew of defendant and was in the car when defendant shot at Baker. Wood returned fire. Defendant was shot in the leg. Defendant, a member of the Meadowview Bloods criminal street gang, unsuccessfully tried to convince the jury that he shot Baker in self-defense and that the murder was not gang related.
Defendant was tried as an adult and found guilty of first degree murder and of possession of a firearm by a felon. The trial court sentenced defendant to a term of 75 years to life plus a determinate term of 16 years.
Defendant argues the trial court erred in denying his new trial motion based on ineffective assistance of trial counsel. He asserts that his trial counsel should have retained a ballistics expert to show that defendant could not have shot himself in the leg, that the bullet in his leg could not have come from either his or Wood's gun, and that there must have been a third gun used by Wood or someone else at Wood's house. Defendant claims such evidence would have bolstered his self-defense claim. We shall conclude that trial counsel's performance was not deficient, and in any event, defendant was not prejudiced by the omission.
Defendant argues the trial court erred when it admitted his statements to police that were taken in violation of his right to self-incrimination. We conclude there was no violation of defendant's rights.
We conclude there was sufficient evidence to support the 10-year sentence enhancement imposed upon the finding that the crime was committed for the benefit of a gang and that defendant had the specific intent to promote the gang's criminal activity when he committed the offense. However, because defendant's sentence carries a life term, the 10-year enhancement term must be stricken, and defendant's minimum parole eligibility must be modified.
We find no evidence in the record to support defendant's claim that the trial court was unaware of its discretion to impose a sentence on him that was less than life without parole. We also reject his argument that he was denied equal protection because, as a juvenile sentenced under the three strikes law he is not eligible for a parole hearing after serving 25 years.
We agree with defendant that his case should be remanded to the trial court to consider whether to strike the 25-year-to-life enhancement imposed for intentionally and personally discharging a firearm causing death. Since defendant was sentenced, the Legislature has granted courts the discretion to strike the enhancement, and the changes are retroactively applicable to defendant's case.
Finally, because defendant was a juvenile at the time of the crime and the prosecution filed charges against him directly in adult court, the case must be conditionally reversed and remanded to juvenile court for a transfer hearing. Voter-enacted Proposition 57 brings all minors within the jurisdiction of the juvenile court, and it is retroactive to all juveniles whose judgments were not final when Proposition 57 was enacted in 2016.
FACTUAL AND PROCEDURAL BACKGROUND
The murder victim was 22-year-old Dominique Baker, who was born with cerebral palsy and was confined to a wheelchair. Baker lived with his aunt, Rebecca Cervantes. Also living with Cervantes were her son, Daymon Wood, her daughter, Derrisha Cheatham, Cheatham's two-year-old daughter, and Cheatham's boyfriend, Joel Blake.
On the night of the murder, Blake, Wood, and the victim were in front of Cervantes's house preparing to go to a shooting range. Baker had already wheeled himself down to the car, a Mitsubishi, which was parked on the street in front of the house. He was attempting to get into the back door of the car on the driver's side. Blake had just moved another car from the driveway into the garage. Wood had Blake's .40-caliber handgun inside a gun case. The gun was not loaded, but there was a loaded magazine in the gun case, containing 10 rounds. There was no round in the chamber. Wood had opened the driver's door of the Mitsubishi, and put the gun case on the passenger seat. He was in the car with the door open and his foot outside the car when the shooting started. He had just turned around to speak to Baker, when he saw defendant about 10 feet from the driver's door. Defendant did not say anything before he started shooting.
Wood ducked down, then reached for the gun in the case, loaded it, and began firing at defendant, who was running away. He fired all the rounds that were in the magazine. Eleven .40-caliber cartridge casings were later found at the scene, and all were fired from Blake's handgun. Since the magazine for the .40-caliber handgun held only 10 bullets, 11 cartridge casings could have come from that gun only if the gun had been loaded. Wood could see defendant's dreadlocks bouncing as he ran away. There was another person running away with him. Baker said he had been hit. He was on the ground. Blake came to the car and Blake and Wood loaded Baker into the car. Wood drove Baker and Cervantes to the hospital.
Blake testified he got into a car and drove around the area. He was scared and in shock. He had never been shot at or seen someone shot, and he had been close to Baker. He could not remember how long he was out before coming home, then going to the police station.
Cervantes was in the hospital's emergency room when she saw a man entering in a wheelchair with towels around his legs. When he saw her his eyes got big. She pointed her finger at him and said, "You the one. You the one who shot my nephew." He said something to his friend and they turned around and tried to get away. Cervantes told security. She recognized defendant because she had seen him around the neighborhood.
Lamont Anthony lived near the Cervantes home. He was retired from the Department of Corrections, owned several guns, and was familiar with handguns. He stated he heard a total of 14 or 15 gunshots. He heard two guns being fired on the night of the murder. The first series of shots were from a smaller caliber gun. A nine-millimeter gun, which is a smaller caliber than a .40-caliber gun, was eventually found in defendant's possession. Anthony thought he heard a .38-caliber gun. Neither of the two guns recovered was a .38-caliber gun.
Robert Lee was the person with defendant when defendant shot Baker. Lee was visiting defendant's house the evening of the murder, arriving in the late afternoon. He claimed that he was not a "gang banger," that he had never heard of the Meadowview Bloods, and that he had never heard of the Oak Park Bloods. He claimed he had never thrown gang signs, even when the prosecutor confronted him with pictures showing him making a sign for the Meadowview Bloods. He claimed instead that it was a family sign that his family in Oakland liked to use when taking pictures. On the evening of the murder, defendant asked him to walk with defendant to the store. It was dark outside. They were walking down 65th Avenue when they saw some people. Lee claimed the people shot at them first. Defendant pulled a gun out from somewhere and shot back. They both turned and ran. When they got down the street, Lee called to defendant to see if he was okay. Defendant responded that he had been shot.
Lee's testimony at trial was contradicted by his earlier statement when interviewed by police. After initially denying knowledge of the shooting, Lee eventually told police that defendant fired at the group of individuals, then they fired back as defendant and Lee were running away. Lee said no words were spoken before defendant started shooting. Lee thought defendant had shot two or three times.
In a telephone call to his mother from jail, defendant read a portion of Lee's statement to police, and commented that it was "out of pocket," meaning it was not good. In another phone call to his brother, defendant said, "Nigga got me fucked up," speaking of Lee. In another conversation with an unidentified male, defendant stated that Lee had given a statement to the police, and that he wanted everyone to know.
A damaged .38-caliber bullet was recovered from defendant's leg. The bullet was in such a damaged condition that it was unsuitable for comparison purposes. The criminalist testified that a .38-caliber bullet has the same diameter as a nine-millimeter bullet, thus it would be possible to fire a .38-caliber bullet from a nine-millimeter handgun.
Baker's autopsy revealed that he had been shot three times in the lower back and once in the upper inside portion of his leg. There were two corresponding bullet holes in Baker's wheelchair, indicating that he was lifting himself off of the wheelchair seat when he was shot.
Other evidence connected defendant to the shooting. There was a bloody trail from the shooting scene to a house two doors down from defendant's, then continuing on in defendant's driveway. Three samples were collected from the trail, and all three matched defendant's DNA. Defendant was in a Kia that was stopped by police as he was trying to leave the hospital. Inside a purse on the rear floorboard of the car was a nine-millimeter Ruger handgun. Defendant's thumbprint was on the handgun magazine. The four nine-millimeter casings found at the scene of the murder were fired by the Ruger handgun found in the Kia.
Detective Thomas Higgins interviewed defendant the day after the shooting. Defendant's first story was that he had been walking by himself down 68th Avenue when he saw a black car pull up, the people inside said something, they rolled the window down, a gun came out, and he started running. He realized he had been shot when his leg started getting heavy. He did not want to go to the hospital because he does not like doctors. Later, when told a gun had been found in his mother's car, he claimed at the detective's suggestion that he accidentally shot himself. He claimed to have thrown the gun in a garbage can after he shot himself, but could not explain how it then ended up in his mother's car.
After interviewing defendant, the detective put defendant's brother, Alphonse, into the interview room and monitored the conversation. Alphonse told defendant, "Tell em they started shooting at you and you started shooting back." Defendant replied, "Like they started shooting at me?" Defendant then said, "I told them I ain't—I wasn't even there. I just told them I shot myself." Alphonse informed defendant, "there were cop cars out there . . . they followed the blood from over there all the way to the house. . . . Your blood." Later defendant said, "I wonder if they found gunpowder on my hands? How long does gunpowder stay on your hand?" Alphonse answered, "Til you wash it or you piss on your shit or put your hands in pickle juice." Defendant said, "I know I used gloves, mm-mm." Still later, defendant said, "I'm gonna have to, I'm gonna just fight that motherfucker for self-defense." Alphonse responded, "Well, you have to. That nigga was trying to act hard in front of all his family. . . yeah, yeah, act hard for all his family, he would, ah, he'd started shooting when he was walking out." Defendant responded, "Okay." Alphonse continued, "And you turned around and nigga shooting back, you know. . . . You hit him in his front or back?" Defendant said, "In the back. But I don't know if they could tell where it enters. Hole in the back, on God, stupid ass nigger. But that don't mean nothing just 'cause it's in the back, on God—I'm like I seen hella people . . . so I just started shooting at them, I wasn't trying to hit nobody, I was just trying to scare the[m] so I can get away."
As defendant and Alphonse share a surname, we refer to Alphonse by his first name.
The jury convicted defendant of first degree murder and possession of a firearm by a person who has been convicted of a felony. The jury found true allegations that defendant intentionally and personally discharged a firearm causing death, and committed the crime for the benefit of a criminal street gang. The trial court found true the allegation that defendant had a prior serious felony conviction (assault with a firearm). Defendant's sentence of 75 years to life plus a determinate term of 16 years was calculated as follows: Defendant's 25-year-to-life sentence for first degree murder was doubled because of a prior strike to 50 years to life (Pen. Code, § 667, subds. (b)-(i)); defendant received a 25-year-to-life sentence enhancement for personally and intentionally discharging a firearm and causing death (§ 12022.53, subd. (d)); defendant's three-year term for possession of a firearm by a felon was doubled to six years because of the prior strike; and defendant received a 10-year gang enhancement pursuant to section 186.22, subdivision (b)(1)(C).
Undesignated statutory references are to the Penal Code.
DISCUSSION
I
New Trial Motion
Defendant argues the trial court erred in refusing to grant his motion for new trial, which he made on the ground of ineffective assistance of counsel. Defendant's new trial motion related to his theory of self-defense. He argued defense counsel should have presented an expert witness or properly questioned the prosecution's expert witness regarding whether defendant could have shot himself with his own nine-millimeter gun. He also argued trial counsel failed to investigate the possibility that Blake or someone else could have disposed of a .38-caliber handgun used to shoot defendant in the leg.
We review the trial court's factual findings on a motion for new trial for substantial evidence. (People v. Taylor (1984) 162 Cal.App.3d 720, 724.) We exercise our independent judgment as to whether trial counsel failed to perform with reasonable competence and whether it is reasonably probable that a determination more favorable to defendant would have resulted had trial counsel performed competently. (Id. at p. 725.)
The new trial motion argued that trial counsel failed to adequately investigate the possibility that the gun that shot defendant was a .38- or .357-caliber revolver, and that someone, probably Blake, disposed of the gun after the shooting. Defendant claimed a firearms expert would have disputed the assertion that defendant's gun was capable of shooting the type of bullet that was found in defendant's leg. Defendant submitted the declaration of a firearms expert, who stated that it was impossible to fire a .38-caliber bullet from a nine-millimeter handgun. Defendant also argued his trial counsel should have canvassed the neighborhood to locate any witnesses who could testify they saw Blake leave immediately after the incident, or that they did not see Blake walking around any of the local parks.
Defendant also argued in his new trial motion that his trial counsel did not investigate defendant's cell phone records, which would have shown that he was on his phone with his girlfriend at the time of the shooting. He claimed this would have demonstrated he did not act with premeditation, but he does not raise this argument again in this appeal.
Defendant argued his trial counsel's performance prejudiced him, because the evidence would have shown that Blake fled the scene to dispose of a .38 revolver that was used to "shoot the defendant first." He argued Blake's flight and concealment demonstrated a consciousness of guilt.
The prosecution responded that trial counsel's performance was not deficient because: (1) even if there had been a third gun, such evidence would not answer the crucial self-defense issue of who was the aggressor; and (2) there was no need to investigate Blake's disappearance because it was apparent from the evidence that he was away from the residence long enough to have disposed of a third gun.
The prosecution submitted the declaration of defendant's trial counsel in support of its opposition to the new trial motion. Trial counsel stated that he did not interview the victim's neighbors for tactical reasons, because it was clear from the police report that Blake left the scene within a few minutes of the shooting. Trial counsel stated he could and did argue that because Blake had lied about fleeing the scene, he had ample opportunity to dispose of a third gun, and was not a credible witness. Trial counsel stated that for tactical reasons it would have been unreasonable and unproductive to send the investigator to parks surrounding the victim's residence to search for witnesses who did not see Blake. At trial, defense counsel elicited testimony from Lee that the victim's side shot first.
The trial court found that trial counsel had a rational trial strategy and explanation for each argument the defense raised as a basis for the motion for new trial, and that the representation did not fall below an objective standard of reasonableness. The trial court further found that defendant had not met his burden of showing prejudice. "Frankly, from what I have seen of the evidence what undermines the defense in the case is the defendant's own words during the interview with Detective Higgins and his conversation with his brother. . . . [¶] So what we have is a statement, and it wasn't just a lie as it's been phrased here. There were multiple lies in that interview. The statement where [defendant] changed his version of the events was introduced by the People, and it challenged any possible defenses in the case. [¶] And just based upon my consideration of the law and the arguments here and the evidence presented at trial I find that the defense has not met its burden and the motion for new trial is denied."
A. Trial Counsel's Performance Was Not Deficient
To succeed in his claim that he received ineffective assistance of counsel, defendant must first show that trial counsel's performance was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 687 .) This requires a showing that trial "counsel's representation fell below an objective standard of reasonableness." (Id. at p. 688.) There is a strong presumption that counsel's performance was within the wide range of reasonable assistance, and counsel's performance is not deficient unless the errors were "so fundamental that counsel was not functioning as the counsel guaranteed by the Sixth Amendment." (Harrington v. Richter (2011) 562 U.S. 86, 88 .) " ' "Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." [Citation.]' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 954.)
Trial counsel made a tactical decision not to hire a ballistics expert to testify that defendant's gun could not have shot the bullet that struck his leg. Counsel explained he believed it was clear from the caliber of the bullet removed from defendant's leg and from Blake's flight from the scene that a third gun was involved, and believed it was unnecessary to call a firearms expert because the People's expert was prepared to testify consistent with the theory that there were more than two guns. Trial counsel further recognized that a ballistics expert could not determine who fired first. The issue relating to defendant's self-defense strategy was dependent on who fired the first shot, and defense counsel successfully elicited testimony from Lee that the victim's side shot first.
We agree with the trial court's determination that trial counsel was not deficient for failing to call its own ballistics expert. The only information such an expert could have given would have been that defendant did not shoot himself in the leg, which would have meant that one side or the other had a third gun. Defense counsel argued this theory at trial, and even if defense counsel had conclusively proven that there was a third gun, it would not have advanced the self-defense claim, which was dependent on proof of which side started shooting first.
We also agree with the trial court's determination that trial counsel was not deficient for making the tactical decision not to interview the victim's neighbors regarding Blake's whereabouts. It was apparent from the facts elicited that Blake was absent from the residence long enough to dispose of a possible third firearm, and this theory was adequately argued to the jury. The decisions by defendant's trial counsel were objectively reasonable.
B. Defendant Was Not Prejudiced
Even if trial counsel's representation was not "within the wide range of reasonable professional assistance," we will not set aside the judgment if the error had no effect on the judgment. (Strickland v. Washington, supra, 466 U.S. at pp. 689, 691.) To satisfy this element, the defendant has the burden to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome." (In re Ross (1995) 10 Cal.4th 184, 201; People v. Pope (1979) 23 Cal.3d. 412, 425, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)
There was no reasonable probability that the result would have been more favorable to defendant had his trial counsel taken the actions he now claims were necessary.
The trial court was correct that the most damning evidence against defendant's claim of self-defense was the evidence of his own statements. He lied repeatedly about how he had been shot. His brother suggested that he tell the police he shot in self-defense, to which he responded, "Like they started shooting at me?" In addition to defendant's statements, defendant's friend Lee told police after the shooting that defendant fired first, and was shot as he ran away.
Also, the prosecutor argued it was not logical that Wood or Blake would have tried to shoot defendant in front of their own home, with their family members in harm's way. Moreover, defendant's bullets hit Baker in a relatively tight grouping of shots fired into Baker's back and one in his leg. Defendant's nine-millimeter gun fired four bullets, leaving four shell casings. All of defendant's bullets hit Baker. At the time the bullets struck him, Baker was lifting himself out of his wheelchair with both hands. Obviously, defendant could not have been defending himself from an initial gunshot from Baker, the only person defendant shot, because both of Baker's hands were in use lifting Baker from his wheelchair. It is not reasonably probable that defendant would have been defending himself by returning fire, but shooting only Baker, who was the only person who could not possibly have been shooting at defendant.
It is also not reasonably probable that the discovery of a third gun would have changed the outcome, since even if a third gun had been discovered, it would not have been evidence of who initiated the shooting, and defendant's claim of self-defense depended on the other side shooting first. Defendant has not shown prejudice, and the new trial motion was properly denied.
II
Defendant's Statements to Detective Higgins Were Admissible
Defendant contends the trial court erred in admitting his statements to police that were obtained in violation of his Fifth Amendment right against self-incrimination. Defendant moved to suppress the statements below.
A. Facts Relating to Defendant's Suppression Motion
Detective Thomas Higgins contacted defendant at 11:37 p.m. following the shooting. Defendant was lying in a hospital bed in the emergency room. Defendant was coherent and alert. Detective Higgins read defendant his Miranda rights, and defendant stated he understood his rights. Defendant said, "I got the right to remain silent." Detective Higgins responded that he did have that right and asked if that was what defendant wanted to do. Defendant responded, "Yeah," and Detective Higgins left the room.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
The next morning, at 6:38 a.m., Detective Higgins interviewed defendant at the police detective division. The jury saw a video of the interview. Detective Higgins read defendant his rights, then asked defendant what had happened. Defendant replied that he had been walking down the street after just having "got some weed" when he saw a small black box car on 68th Avenue and 15th Street pull up. Someone inside said something, rolled down the window, and stuck out a gun. At that point defendant started running. He fell down when his leg started feeling heavy. Defendant said he was by himself. He called his brother, who came and helped him to his house. Everyone wanted him to go to the hospital, but he did not want to go because he does not like doctors. He went to the hospital anyway, and when they got there his mom was yelling at him and he was arguing about not wanting to go. Finally, his brother acquiesced and put him back in the car. They started pulling away from the hospital when the police pulled them over and took him to the hospital.
Detective Higgins told defendant they had found a gun with his fingerprints on it in the car that brought him to the hospital, and that it was missing some bullets. Detective Higgins asked if perhaps defendant had shot himself accidentally. Defendant agreed he had shot himself. He said he had the gun on his hip, the safety was off, the gun had a hair trigger, and "it just went off." Defendant said after he shot himself he threw the gun in a garbage can on 68th Avenue. He said he did not know how it ended up back in the car. Detective Higgins told defendant his brother had already told them he got the gun and put it in the car. At that point, defendant's brother came into the interview room and the conversation between defendant and his brother was recorded. Detective Higgins did not ask defendant any more questions.
B. Michigan v. Mosley
Defendant claims this issue is governed by Michigan v. Mosley (1975) 423 U.S. 96 (Michigan). In fact, Michigan is the "sole determinant of admissibility where a defendant is reinterrogated after invoking the Miranda right to remain silent." (People v. DeLeon (1994) 22 Cal.App.4th 1265, 1270.) In that case, Mosley was given a Miranda warning by a detective in connection with two robberies. (Michigan, at p. 97.) Mosley said he did not want to answer any questions about the robberies and the interrogation terminated. (Ibid.) At no time did Mosley request an attorney. (Ibid.) More than two hours later, Mosley was questioned by another police officer at another location about an unrelated murder, and was given a Miranda warning again. (Id. at p. 104.) Mosley made a statement during the interrogation that implicated him in the homicide. (Id. at p. 98.) Mosley was subsequently charged with murder and moved to suppress his statement, claiming it was impermissible for the second detective to question him after he told the first detective he did not want to answer any questions about the robberies. (Id. at pp. 98-99.)
The Supreme Court held that the admissibility of the statements obtained after a person has decided to remain silent depends on "whether his 'right to cut off questioning' was 'scrupulously honored.' " (Michigan, supra, 423 U.S. at p. 104.) In determining that Mosley's right to cut off questioning was fully respected, the court considered that when Mosley invoked his right to silence, the interrogator immediately ceased questioning and did not try to resume questioning or persuade Mosley to reconsider. (Ibid.) There was an interval of more than two hours, and the resumption of questioning was by another officer at another location about an unrelated crime. (Ibid.) Mosley was given a second full and complete Miranda warning. (Ibid.) The court noted that the police had not either refused to discontinue the interrogation or persisted in repeated efforts to wear down Mosley's resistance and make him change his mind. (Id. at pp. 105-106.)
C. Standard of Review
"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under [Miranda], we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence." (People v. Wash (1993) 6 Cal.4th 215, 235.) "We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained." (People v. Cunningham (2001) 25 Cal.4th 926, 992.)
D. Defendant's Right to Remain Silent Was Scrupulously Honored
Defendant argues the police did not scrupulously honor the decision to cut off questioning that he asserted at the hospital. He claims that although a significant period of time elapsed between interrogations, he had been in a hospital bed in an emergency room for treatment of a gunshot wound during that time. He also argues the trial court disregarded his age (one month shy of 18). He argues these two things would have negated the seven-hour pause between questionings.
The trial court recognized that defendant was a juvenile at the time, but found he was "not unsophisticated." This finding was supported by substantial evidence. Defendant was convicted of assault with a firearm in 2010, was sentenced to the California Youth Authority, and was on parole from that offense at the time of the shooting. The trial court also found defendant had numerous contacts with law enforcement. This finding was also supported. In addition to the above conviction, defendant had two misdemeanor adjudications as a minor. The trial court found defendant was clearly aware of his right to remain silent, and that by invoking his right the questioning would stop. This was also borne out by the record.
We agree with the trial court that defendant's right to remain silent was scrupulously honored. Defendant was given two Miranda warnings, which he said he understood. When defendant said he wanted to remain silent, the questioning immediately ceased. The first time the detective attempted to question defendant, he invoked the right to remain silent before any questions could be asked. Thus, when the second round of questioning commenced, defendant had not yet answered any questions. The second round of questioning was after a significant period of time had elapsed. The questioning took place at two separate locations. We agree with the trial court that "it was not unreasonable, coercive, or in violation of the defendant's constitutional rights for the detective to ascertain whether the defendant would have a differing decision on speaking with law enforcement when in a medical setting with a focus on treatment versus a custodial setting with more of a focus on the basis for the detention." Of primary importance, this was not a case in which the police either refused to discontinue the interrogation or persisted in repeated efforts to wear down defendant's resistance and make him change his mind. (Michigan, supra, 423 U.S. at pp. 105-106.) Defendant's right to remain silent was scrupulously honored, and his statements were properly admitted. Because we have determined the statements were properly admitted, we will not address defendant's argument that their introduction prejudiced him.
III
Substantial Evidence of Gang Enhancement
An enhancement to count one (murder) of the second amended complaint alleged defendant "committed the above offense for the benefit or, at the direction of, or in association with, a criminal street gang, to wit, MEADOWVIEW BLOODS, with the specific intent to promote, further, or assist in criminal conduct by gang members, pursuant to Penal Code Section 186.22(b)(1)." The jury found the enhancement true, and defendant received an additional 10-year sentence as a result. Defendant argues insufficient evidence was presented either that the felony was gang related or that he had the requisite specific intent. We disagree, but conclude defendant should not have been given a 10-year sentence enhancement pursuant to section 186.22, subdivision (b)(1)(C), but should have instead had a limitation placed upon his parole eligibility.
Section 186.22, subdivision (b)(1) provides in pertinent part: "[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] . . . [¶] (C) If the felony is a violent felony . . . the person shall be punished by an additional term of 10 years."
A. Facts Related to the Gang Enhancement
Kaitlynn Bowman, a friend of defendant's, first testified that she was not sure defendant was a Meadowview Bloods gang member, but admitted she had seen him throw up gang signs. After being shown pictures of defendant throwing the Meadowview Bloods sign, Bowman admitted he was a Meadowview Bloods gang member.
Detective Hanspeter Merten interviewed Wood following the shooting. Wood, in addition to identifying defendant in a photographic lineup, identified a photo of defendant's girlfriend. Wood did not know the name of the girlfriend, Kailiya Ruiz-Jones, but knew her name started with a K. Wood stated he had texted Ruiz-Jones in the past. He said that two or three months prior to the shooting he was in a car with his girlfriend when he saw defendant and Ruiz-Jones walking down the street. As Wood passed defendant and his girlfriend there were looks exchanged, and when Wood looked in the rear view mirror, defendant made the Gunz Down gang sign. Gunz Down is a derogatory sign that is used against the Gunz Up gang. Wood said that every time he saw defendant, defendant would "mean mug" him. Wood stated that he was an outsider that did not hang around with people from South Sacramento. Wood said that his only prior connection with defendant was when he saw him walking down the street with Ruiz-Jones. Defense counsel argued at trial that all of the evidence indicated the fight was over defendant's girlfriend.
Detective Kyle Jasperson reviewed defendant's Facebook account. It contained photographs of defendant. One photo was titled, "Snowed in on a late nite lerkin' on all suckus." "Suckus" is a derogatory term used to refer to the rivals of a gang. "Lurking" refers to looking for a rival gang member or waiting for one to come by. Another showed defendant throwing a Gunz Down sign, titled "Gunz Down 100 round bitch." "Hundred round" refers to a hundred round clip. Another showed defendant throwing the Gunz Down sign with one hand and the Meadowview Bloods sign with the other. That photo was titled, "Lerkin' on a late nite tryin' to catch a sucka slippin'. " That phrase means to catch someone from a rival gang off guard. The Meadowview Bloods are the rivals of the Gunz Up gang. Two photos showed defendant throwing gang signs. In one defendant was throwing the Meadowview Bloods sign. In another he was throwing a Gunz Down sign with one hand and holding a gun in the other. It appeared to be the same gun used to kill Baker. Ruiz-Jones was also in the photo, and it had been labeled "Bonnie and Clyde." Ruiz-Jones's Facebook account contained a photo of defendant in jail after he had been arrested. Defendant was throwing a Gunz Down sign.
Several officers testified that they had prior contacts with defendant. Officer Sameer Sood testified that in March 2010 he went to a residential address in South Sacramento to conduct a search. The person living at that address was a validated G-Mobb gang member. While Officer Sood and his colleagues were there, three more people arrived at the residence, including defendant. One of the three people (not defendant) was a validated G-Mobb gang member.
In March 2012 while working on the gang enforcement team, Officer Sood observed defendant walking on Florin Road throwing a Gunz Down sign to a passing vehicle. Officer Sood and his partner stopped and talked to defendant, who told them that he was a Meadowview Blood.
In July 2010, Detective John Montoya came into contact with defendant while working on a gang suppression unit. Defendant was wearing a red shirt and had a red bandanna, the color worn by the Bloods. Defendant's bedroom was searched and a photo of him and another person was discovered. In the photo, defendant was throwing the sign for the Meadowview Bloods. Defendant told Detective Montoya he had been a Meadowview Blood since the age of 10.
Officer Chad Eggen was on patrol in December 2011 when he encountered defendant. Defendant was uncooperative and belligerent, and told Eggen he did not "give a fuck about jail" and "he was a Meadowview Blood." Defendant made several references to his gang affiliation throughout his contact with the police.
Officer Luke Moseley was on patrol in April 2012 when he noticed a white convertible driving slowly with approximately eight people riding on the hood and trunk. Almost all of the individuals had on red clothing. Two of the individuals were validated Meadowview Bloods gang members, including defendant. The next night Officer Moseley was on patrol when he noticed a car parked alongside a park with a number of people around it. Inside the car was a gun, and one of the individuals standing around the car had 26 live hollow-point .22-caliber rounds that matched the gun. A few days later Officer Moseley was on patrol and encountered defendant and another man who was a validated gang member.
Detective Joseph Ellis of the Sacramento Police Department Gang Suppression Unit testified as an expert in African-American gangs in South Sacramento. He testified that the biggest rivals of the Meadowview Bloods are the Oak Park Bloods and Gunz Up. He testified that gang members will often commit crimes with each other. They do it for backup in case something goes wrong, and because there is a no snitching code among gang members. Also they are a witness to publicize to other gang members what was done. He opined that defendant was a Meadowview Bloods gang member.
In Sacramento's African-American gangs, the members live to gain respect. Respect is everything to them. Respect comes from the things they do and the way that they are feared. If you are not respected, no one will do anything you say. Respect is earned through fear and intimidation. It is earned by committing crimes. The biggest feather in a gang member's cap is to kill someone. On the other hand, if a member is perceived as being weak, he can be ostracized from the gang.
Detective Ellis interviewed Wood, who said that defendant had been coming by Wood's house and banging on him. This meant he was throwing up the Meadowview Bloods sign and calling out "69," referring to the avenue that runs through the middle of Meadowview, and is a number associated with the Meadowview Bloods. Wood described himself as an outsider living in Meadowview Bloods territory. When Wood began to communicate with defendant's girlfriend by way of texts, it would have been seen as a sign of disrespect to defendant, especially with Wood knowing that defendant was a Meadowview Blood. Defendant would have to do something in retaliation for the disrespect. Disrespect towards one gang member would reflect badly on the entire gang. Retaliation would be necessary because the gang must present a united, strong front.
B. Standard of Review
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Lindberg (2008) 45 Cal.4th 1, 27.) "The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
C. Sufficient Evidence Murder Was Gang Related
The first prong of the gang enhancement statute requires proof that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) This requirement makes clear that the offense is subject to enhanced punishment only if the crime is gang related. (People v. Gardeley (1996) 14 Cal.4th 605, 622, disapproved on another point in People v. Sanchez (2016) 63 Cal.4th 665.)
There was sufficient evidence that defendant was a gang member. Defendant's friend admitted he was a Meadowview Bloods gang member, and defendant told Officers Sood and Eggen and Detective Montoya he was a Meadowview Bloods gang member. Defendant's argument that there was insufficient evidence the crime was committed for the benefit of the gang is based on the circumstance that defendant wore no red clothing, displayed no gang signs, and spoke no gang slogans when he committed the crime. Furthermore, the victims were not gang members.
However, gang expert Detective Ellis testified that gang members are primarily interested in gaining respect within their gang and instilling fear in rival gangs. The more crimes a member commits, the more respect he earns. The crime that earns the most respect is to kill someone. On the other hand, a weak gang member makes the entire gang look weak. Thus, a member who is disrespected is expected to retaliate or risk being ostracized from the gang.
There was evidence that prior to the killing defendant had been going by Wood's home and "mean mugging" him and throwing up the Meadowview Bloods sign. This may have been in response to Wood communicating with defendant's girlfriend, or in response to Wood being an outsider living in Meadowview Bloods territory. The expert opined that if an outsider moved into Meadowview Bloods territory and began communicating with a gang member's girlfriend, that would be a sign of disrespect. The gang member would have to do something to retaliate, or be seen as weak.
The above evidence was sufficient evidence from which the jury could have inferred that the murder was committed for the benefit of a gang.
D. Sufficient Evidence of Specific Intent
Section 186.22, subdivision (b)(1) requires a showing of the "specific intent to promote, further, or assist in any criminal conduct by gang members," but does not require an intent to promote the gang's criminal activity beyond the charged crime. (People v. Romero (2006) 140 Cal.App.4th 15, 19.) Based upon the expert's testimony that committing a murder benefits the gang by garnering respect for the gang, instilling fear in rival gangs, and intimidating the community, the jury could have reasonably inferred that defendant committed the murder with the specific intent to promote or further criminal conduct by gang members.
E. Enhancement Must Be Stricken
Despite our conclusion that sufficient evidence supported the finding pursuant to section 186.22, subdivision (b)(1), the sentence must be modified to reflect a minimum parole eligibility, rather than an additional 10-year term.
Section 186.22, subdivision (b)(1)(C) provides for an additional term of 10 years where a defendant is convicted of a violent felony that was committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist criminal conduct by gang members. However, subdivision (b)(5) states that "any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served." The Supreme Court has held that if the parole limitation provision of subdivision (b)(5) is applicable, the 10-year enhancement may not be imposed. (People v. Lopez (2005) 34 Cal.4th 1002, 1007.)
We will therefore order that the 10-year enhancement imposed pursuant to section 186.22, subdivision (b)(1)(C) be stricken, and a minimum parole eligibility of 30 years imposed.
The minimum parole eligibility of 15 years pursuant to section 186.22, subdivision (b)(1)(C) is doubled to 30 years due to defendant's prior strike conviction. (People v. Fiu (2008) 165 Cal.App.4th 360, 390.)
IV
CALCRIM No. 362
Defendant argues CALCRIM No. 362 creates an impermissible permissive presumption of guilt. The instruction stated: "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
Defendant argues the predecessor to CALCRIM No. 362, CALJIC No. 2.03, withstood constitutional challenge because it limited the permissive inference that might be drawn from the evidence to the defendant's consciousness of guilt of some wrongdoing, not consciousness of guilt of the specific crimes charged. CALJIC 2.03 stated: "If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crime for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide." Defendant argues the new jury instruction does not reflect the distinction between consciousness of guilt of some wrongdoing as opposed to consciousness of guilt of the charged crime, conflating psychological/moral guilt with legal guilt, thus violating his rights to due process, a fair trial, and equal protection.
Defendant relies on People v. Crandell (1988) 46 Cal.3d 833 (Crandell), abrogated on another point by People v. Crayton (2002) 28 Cal.4th 346, 364-365. In Crandell, the defendant argued that the jury might interpret the word " 'guilt' " in the phrase " 'consciousness of guilt' " in CALJIC No. 2.03 to refer to legal guilt, i.e., "the ultimate determination of the truth or falsity of the criminal charges." (Crandell, at p. 871.) The Supreme Court disagreed, concluding that any "fear that the jury might have confused the psychological and legal meanings of 'guilt' is unwarranted," and that reasonable jurors "would understand 'consciousness of guilt' to mean 'consciousness of some wrongdoing' rather than 'consciousness of having committed the specific offense charged.' " (Ibid.)
We find no error in the instruction. The defendant's "consciousness of guilt," language used in CALJIC No. 2.03 and approved in Crandell is not materially different from the defendant's being "aware of his guilt of the crime" pursuant to CALCRIM No. 362. Both instructions describe a defendant's psychological guilt arising from a false or misleading statement relating to the charged crime rather than a confession of legal guilt. The Supreme Court apparently agrees. People v. Howard (2008) 42 Cal.4th 1000, 1021, stated, "defendant contends that consciousness of guilt instructions like CALJIC No. 2.52 (and see [CALCRIM No. 362]) invite the jury to draw irrational and impermissible inferences with regard to a defendant's state of mind at the time the offense was committed. We have repeatedly rejected this argument (see, e.g., [People v.] Jackson [(1996)] 13 Cal.4th [1164,] 1222-1224), and do so here."
Additionally, like CALJIC No. 2.03, CALCRIM No. 362 warns that any "evidence that the defendant made such a statement cannot prove guilt by itself." This ensures that the jury does not treat the defendant's false or misleading statement as a confession of the crime. (See Crandell, supra, 46 Cal.3d at p. 870.) Accordingly, CALCRIM No. 362 did not violate defendant's rights to due process, a fair trial, and equal protection by conflating psychological guilt with legal guilt.
Having found no error, we reject defendant's claim of cumulative error.
V
De Facto LWOP Sentence
Defendant was one month shy of his 18th birthday when he shot and killed Baker. The trial court sentenced defendant to an indeterminate term of 75 years to life plus a determinant term of 16 years. The Supreme Court has held that the Eighth Amendment proscription against cruel and unusual punishment forbids a mandatory sentence of life without the possibility of parole (LWOP) for juvenile offenders. (Miller v. Alabama (2012) 567 U.S. 460, 479 (Miller).) A sentence that amounts to the functional equivalent of a LWOP sentence is treated the same as a LWOP sentence for constitutional purposes. (People v. Caballero (2012) 55 Cal.4th 262, 267-268.)
Defendant made a motion prior to sentencing to preclude a LWOP or de facto life sentence pursuant to Miller, supra, 567 U.S. 460, Graham v. Florida (2010) 560 U.S. 48 (holding the Eighth Amendment prohibits LWOP for juvenile nonhomicide defendants), and People v. Gutierrez (2014) 58 Cal.4th 1354 (holding that sentences for juveniles 16 and older who commit special-circumstance murder must be selected with no presumption in favor of LWOP).
In ruling on the motion and before handing down its sentence, the trial court considered factors set forth in Miller. First the court considered defendant's chronological age, noting he reached his 18th birthday 27 days after the murder. The court found that although defendant was less mature than someone older, he was more mature than many other juvenile offenders. The court noted that defendant went to the victim's home while armed and committed first degree, premeditated, deliberate, and willful murder. Thus, the court found there was nothing impetuous or rash about defendant's conduct.
Second, the court considered evidence regarding defendant's family and home environment. The court recognized that defendant's parents divorced when he was a toddler, and that he was raised primarily by his mother. The court also noted that defendant had nevertheless maintained contact with his father. The court also noted that one of defendant's older brothers had been killed because of his involvement in a burglary and concluded that the brother had not been a positive influence on defendant. After the court made this statement, defendant responded, "You sound stupid as fuck." The court also recognized that defendant attended high school while incarcerated, and that he was arrested less than three months after being paroled from that facility. He served 60 days for his parole violation and committed the murder less than four months after being released. Defendant has never been employed, but has been supported by his mother. The court found that overall his home environment was not a compelling mitigating factor impacting his decision to commit the crime.
The third factor is the evidence regarding "the circumstances of the homicide offense, including the extent of [the juvenile defendant's] participation in the conduct and the way familial and peer pressures may have affected him." (Miller, supra, 567 U.S. at p. 477.) Here, the trial court noted that the jury found defendant guilty of first degree murder, and found true the allegation that he had personally used a firearm and that the murder was committed for the benefit of a criminal street gang. The court noted that defendant had a previous conflict with the victim's cousin, and that defendant had gone to the victim's residence and opened fire on an unarmed paraplegic, striking him multiple times. The court stated that the victim was shot in a center mass pattern, causing defendant to nod his head. When the trial court noted this for the record, defendant responded, "Fuck you." The court noted that defendant was the sole perpetrator of the crime, and that peer pressure, namely gang pressures, motivated the crime.
The fourth factor is the possibility that defendant "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." (Miller, supra, 567 U.S. at p. 477.) The trial court concluded there was nothing in connection with defendant's age that would have caused or resulted in greater charges being filed than if he were an adult. The court stated that given the facts of the case, anyone regardless of age would have been charged with the same offense and enhancement allegations.
Fifth, the trial court considered the possibility of rehabilitation. (Miller, supra, 567 U.S. at p. 478.) The trial court noted defendant's gang membership, his prior juvenile record, his unlawful gun possession, and his complete absence of remorse. The court stated it did not view defendant's conduct as demonstrating immaturity or impetuosity, but rather as an indicator of irreparable corruption. Being caught and punished in the past for criminal conduct did not deter him, but resulted in him becoming even more violent. During the time defendant was in custody pending trial, he had 17 disciplinary writeups. The trial court found "a complete absence in the record before me that [defendant] has either the desire or the capacity to transform himself to a law-abiding life style." Having weighed the factors, the trial court found a de facto life sentence was neither inappropriate nor unconstitutional.
Defendant argues that although the trial court ostensibly considered the Miller factors, it "failed to recognize and apply the core teachings of Roper, Graham, and Miller about youth in making its sentencing choice[,]" and therefore "was unaware of its discretionary power and failed to exercise informed discretion."
Roper v. Simmons (2005) 543 U.S. 551 held that the execution of persons who were minors at the time they committed their crime is a violation of the Eighth and Fourteenth Amendments.
Graham v. Florida, supra, 560 U.S. 48 held that a juvenile who did not commit homicide cannot be sentenced to LWOP.
We find no indication on this record that the trial court failed to recognize the Supreme Court's holdings in Roper, Graham, and Miller, or that it was unaware of its discretionary power to impose a lesser sentence than de facto LWOP. Rather, the trial court thoroughly considered the relevant factors from Miller before exercising its sentencing discretion. Before hearing argument on defendant's motion, the trial court stated that it "must, under the Miller case, make an individualized determination of whether a life sentence or some lesser sentence is appropriate. And case law has recognized that children are constitutionally different from . . . adults for purposes of sentencing." After weighing the Miller factors, the trial court recognized that a de facto life sentence would be inappropriate in some cases, but that the de facto life sentence here was neither inappropriate nor unconstitutional. These comments demonstrate that the trial court was well aware of its discretion.
Defendant argues without authority that the issue of whether the sentencing court fully understood and properly exercised its discretion is a question of law subject to de novo review. As we have determined from the record that the trial court was aware of its discretion to impose less than a de facto LWOP sentence, the only question is whether the trial court abused its discretion. Defendant has not met its burden of clearly showing that the trial court's exercise of its sentencing discretion was irrational or arbitrary. " ' "[T]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
We do not perceive that the trial court's sentencing discretion was exercised in an irrational or arbitrary manner, and we will not remand for resentencing on this ground.
VI
Section 3051's Exclusion of Recidivists Does Not Violate Equal Protection
Defendant argues for the first time on appeal that section 3051, subdivision (h), which provides that youthful offenders sentenced under the three strikes law are ineligible to receive a youth offender parole hearing during their 25th year of incarceration, violates equal protection. He argues that recidivist and non-recidivist offenders are similarly situated with respect to the purpose of section 3051, which is to create an opportunity for release of youthful offenders when they have shown rehabilitation and maturity. Defendant argues there is "no plausible rational basis" for the different treatment of juvenile offenders sentenced under the three strikes law and those not sentenced under three strikes law.
Section 3051, subdivision (b)(3) provides: "A person who was convicted of a controlling offense that was committed when the person was 25 years of age or younger and for which the sentence is a life term of 25 years to life shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." However, subdivision (h) states in pertinent part: "This section shall not apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or Section 667.61
To succeed on his equal protection claim, defendant " 'first must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.]" (People v. Wilkinson (2004) 33 Cal.4th 821, 836.) Respondent argues defendant has failed to show that a recidivist offender previously convicted of a serious or violent felony is similarly situated to a first-time juvenile offender. Respondent argues that assuming the two groups are similarly situated, the correct test on review is not strict scrutiny, but the rational basis test because the statutory disparity does not implicate a suspect class or fundamental right.
We assume for the purpose of our review that the two groups are similarly situated. We agree with respondent that strict scrutiny (which requires a showing that the classification is closely related to a compelling state interest, is necessary to achieve the state's goal, and is narrowly drawn to achieve that goal by the least restrictive means possible) is not the standard to be applied. (People v. Cole (2007) 152 Cal.App.4th 230, 238.) There is no suspect class here that would require strict scrutiny. People v. Olivas (1976) 17 Cal.3d 236, 250-251 held that personal liberty is a fundamental interest. However, People v. Wilkinson, supra, 33 Cal.4th at page 837 explained that the language in Olivas "could be interpreted to require application of the strict scrutiny standard whenever one challenges upon equal protection grounds a penal statute or statutes that authorize different sentences for comparable crimes, because such statutes always implicate the right to 'personal liberty' of the affected individuals." Wilkinson concluded that the holding in Olivas was narrow, and does not require courts to subject all criminal classifications to strict scrutiny. (Id. at pp. 837-838.) Rather, the rational basis test is applicable. (Id. at p. 838.) It is the proper standard where no suspect class or fundamental right is implicated. (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)
" '[W]hen conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature seems to have made.' [Citation.] 'A classification is not arbitrary or irrational simply because there is an "imperfect fit between means and ends," ' [citations], or 'because it may be "to some extent both underinclusive and overinclusive." ' [Citations.]" (Johnson v. Department of Justice, supra, 60 Cal.4th at p. 887.) "At bottom, the Legislature is afforded considerable latitude in defining and setting the consequences of criminal offenses." (Ibid.)
Notwithstanding defendant's claim that there is no plausible rational basis for the differing treatment, "[t]he well-recognized purpose of the three strikes law is to provide increased punishment for current offenders who have previously committed violent or serious crimes and have therefore not been rehabilitated or deterred from further criminal activity as a result of their prior imprisonment." (People v. Leng (1999) 71 Cal.App.4th 1, 14.) The Legislature obviously was concerned with recidivism when it made three strikes offenders ineligible for a youth offender parole hearing. The threat of recidivism provides a rational basis for the Legislature's decision to exclude strike offenders from section 3051. Thus, defendant has not demonstrated that section 3051 runs afoul of the equal protection clause.
VII
Remand to Strike Firearm Enhancement
The trial court imposed a 25-year-to-life sentence enhancement pursuant to section 12022.53, subdivision (d) for the personal and intentional discharge of a firearm that proximately caused the death of the victim. At the time of sentencing, the trial court had no discretion to strike the enhancement, because subdivision (h) of section 12022.53 stated, "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (Stats. 2010, ch. 711, § 5.) Subdivision (h) has since been amended to allow the trial court to strike or dismiss an enhancement in the interest of justice.
Defendant has filed a supplemental brief arguing that the statutory change is retroactive, and that the matter should be remanded to allow the trial court the opportunity to exercise its discretion to strike the enhancement. The People agree that the statutory amendment is retroactive, but argue the record demonstrates that the trial court would not have struck the enhancement, even if it had the discretion to do so. The People argue that the trial court's comments at sentencing, as well as its decision to impose a consecutive, rather than a concurrent term for count two, demonstrate it would not have exercised its discretion to strike the enhancement.
These comments were the following: (1) noting that defendant was the sole perpetrator; (2) noting defendant's "complete absence of remorse"; and (3) stating that defendant's conduct and history demonstrated "irreparable corruption."
A remand is required for a trial court to exercise its sentencing discretion "when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) "However, '[i]f the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.' " (People v. Gamble (2008) 164 Cal.App.4th 891, 901.)
Here, the trial court did not clearly indicate that it would not have stricken the firearm enhancement if it had the discretion to do so. Under this circumstance it is appropriate to remand to the trial court to exercise its discretion. (People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428.)
VIII
Remand for Transfer Hearing in Juvenile Court
Defendant filed a supplemental brief to address the effect of Proposition 57 (Welf. & Inst. Code, § 707), which was enacted during the pendency of the appeal, to his case. One of the effects of Proposition 57 was to eliminate a prosecutor's ability to directly file charges against a minor in adult court. All criminal charges against a minor must now be filed in juvenile court. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).) Lara held that Proposition 57 is retroactive, and that it "applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Id. at p. 304.) Thus, Proposition 57 applies retroactively to defendant.
We will employ the procedure suggested by the parties, and conditionally reverse the conviction and sentence. We will order the juvenile court to conduct a juvenile transfer hearing, in which the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court, then moved to transfer defendant's cause to a court of criminal jurisdiction. If the juvenile court determines after the transfer hearing that it would have transferred defendant to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then defendant's convictions and sentence shall be reinstated. (Welf. & Inst. Code, § 707.1, subd. (a).) If the juvenile court finds it would not have transferred defendant to a court of criminal jurisdiction, it shall treat defendant's convictions as juvenile adjudications and impose an appropriate disposition within its discretion.
DISPOSITION
The judgment of the criminal court is conditionally reversed. The cause is remanded to the juvenile court with directions to conduct a transfer hearing as discussed herein, no later than 90 days from the filing of the remittitur. If, at the transfer hearing, the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction, the judgment shall be reinstated as of that date, with the following modifications: (1) the cause shall be remanded to the trial court for the court to exercise its discretion to strike the 25-year-to-life sentence enhancement pursuant to section 12022.53, subdivision (d); and (2) the 10-year enhancement imposed on count one pursuant to section 186.22, subdivision (b)(1)(C) is ordered stricken and a minimum parole eligibility of 30 years shall be imposed on that count. The abstract of judgment shall be modified to reflect a determinate term sentence of six years, with a minimum parole eligibility of 30 years, and the modified abstract shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
If, at the transfer hearing, the juvenile court determines that it would not have transferred defendant to a court of criminal jurisdiction, then defendant's criminal convictions and enhancements will be deemed to be juvenile adjudications as of that date. The juvenile court is then to conduct a dispositional hearing within its usual time frame.
/s/_________
BLEASE, Acting P. J. I concur: /s/_________
MAURO, J. Hull, J. Concurring and Dissenting
I concur in parts I through VI and VIII of the majority opinion; I respectfully dissent as to part VII.
In part VII, the majority concludes this court should remand the matter to the trial court so it may consider whether to exercise its discretion to strike the 25-year-to-life enhancement imposed for intentionally and personally discharging a firearm causing death. I do not think this matter needs to be remanded for that determination.
As the majority recognizes " '[i]f the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.' [Citation.]" (People v. Gamble (2008) 164 Cal.App.4th 891, 901.)
In light of the trial court's detailed recitation for its reasons why it was not going to exercise its discretion to preclude a life without parole or de facto life sentence for this defendant, I am confident the trial court, for many of the same reasons, will not exercise its newly-legislated discretion to strike the 25 year-to-life enhancement, notably given the trial court's views that defendant's record indicated "irreparable corruption" and its findings that there is "a complete absence in the record . . . that [defendant] has either the desire or the capacity to transform himself to a law-abiding life style."
I am not of the opinion that, in order to avoid remand on this issue, the trial court was required to have expressly said that even if it had discretion to strike the enhancement, it would not have done so or that it intended to impose the maximum sentence allowed under the law.
In partial support of its remand order, the majority cites People v. McDaniels (2018) 22 Cal.App.5th 420, but in McDaniels, the court noted that the trial court imposed a midterm sentence for being a felon in possession of a firearm and ordered that term to run concurrent with a term for murder, thus raising the possibility there that the trial court would further exercise some leniency on remand. I see nothing that gives rise to that possibility here.
Finally, I note that a remand for resentencing on discretionary enhancements brings with it costs in the form of further court time, further attorney time and, unless the defendant waives his presence, the costs attendant to bringing him to the court for a hearing and returning him to prison thereafter. While in many cases these costs are necessary to an exercise of a trial court's discretion, such is not the case where, as here, the record plainly demonstrates the remand is an idle act.
/s/_________
HULL, J.