People v. Morales, 2018 Cal. App. Unpub. LEXIS 562 (CA Ct. App. 2018)
Court of Appeal of California, First Appellate District, Division Four
January 24, 2018, Opinion Filed
2018 Cal. App. Unpub. LEXIS 562 | 2018 WL 524778
THE PEOPLE, Plaintiff and Respondent, v. DAVID MORALES, Defendant and Appellant.
Judges: RUVOLO, P. J.; RIVERA, J., [*] STREETER, J. concurred.
Opinion by: RUVOLO, P. J.
Appellant was driving while intoxicated when he fired a pistol at three men walking on the grounds of the Valencia Gardens housing project in San Francisco (Valencia Gardens). Then, while attempting to flee from the police, appellant struck another car causing it to hit a pedestrian. The pedestrian and a passenger in the car died and the other driver was seriously injured. These events resulted in appellant’s convictions for multiple offenses, including felony assault, driving under the influence causing injury, and manslaughter. The jury also found true multiple sentence enhancement allegations, including that appellant caused injury and death to more than one victim. Appellant was sentenced to an aggregate prison term of more than 27 years.
Appellant first contends that the trial court committed prejudicial error by denying his request for a self-defense jury instruction with respect to charges arising out of the shooting at Valencia Gardens. Second, appellant contends that his aggregate sentence violates the statutory bar against double punishment because some consecutive terms should have been stayed under Penal Code section 654.  Third, appellant, who was 19 when he committed these offenses, seeks a remand to make a record of evidence that will be relevant at a future youth offender parole hearing. (§ 3051, subd. (b)(1).) Finally, appellant contends he is entitled to the benefit of a Penal Code amendment that went into effect while this appeal was pending, which confers discretion on trial courts to strike or dismiss sentence enhancements for personal use of a firearm during commission of a felony. (See § 12022.5, subd. (c).)
We conclude that appellant was not entitled to a self-defense jury instruction and therefore affirm the judgment. However, a consecutive eight-month sentence enhancement for causing injury to multiple victims should have been stayed under section 654. Therefore, we will remand this case so the trial court can correct this sentencing error. At that time, the court should also determine whether appellant was afforded an opportunity to make a record of evidence pertinent to a future youth offender parole hearing, and whether to strike or dismiss appellant’s personal gun use sentence enhancements.
II. STATEMENT OF FACTS
A. The Prosecution Case
On January 1, 2013, at around 7:45 a.m., James Smith witnessed a shooting from the window of his ground floor apartment at Valencia Gardens. Smith saw a black car pull up near three men who were walking on Rosa Parks Lane, which runs through the project. The driver extended his arm out the window and pointed in the direction of the men. Then Smith heard a single gunshot. The men ran for cover behind parked cars until the car moved down the street. These events happened so fast that Smith doubted there was time for conversation, but if words were exchanged he would not have been able to hear them.
Smith testified that after the car moved down the street, the men came out of hiding and began yelling and gesturing at the car and may have thrown “pebbles” or something at the vehicle. Then the driver stopped his car and pointed the gun at the men again, at which point “they retreated back behind the parked cars.” After the driver started driving again, Smith left his window to call 911. When he returned to the window with phone in hand, he saw the black car coming back up Rosa Parks Lane. Two of the men had gone into a unit and Smith surmised the third had retreated down Maxwell Court because the driver aimed his gun down that street before driving away. Smith gave police a description and license plate number of the car.
San Francisco Police Officer Kevin Stancombe was dispatched to the scene. Arriving on his motorcycle, Stancombe searched the area and spotted appellant driving the black car that Smith had described in his report. Responding to Stancombe’s request for backup, Officer Antonio Claudio and his partner arrived at the intersection of Mission and 21st Street in a marked patrol car. Appellant was stopped at the traffic light and Claudio pulled in behind him and activated his red and blue lights. As Claudio and his partner were getting out of the patrol car, appellant “sped off and made a left turn onto 21st Street.” By that point, another back-up unit had arrived and both patrol cars gave chase. Appellant ran a red light at the intersection of 21st and South Van Ness and slammed into a white Toyota Tercel that was traveling north. The collision caused the Toyota to strike a pedestrian.
When appellant’s car came to a stop, officers at the scene directed him to exit the vehicle with his hands up. Appellant did not comply. He ducked down and appeared to be looking for something, forcing officers to approach and remove him from the vehicle. A .40-caliber semiautomatic firearm was found in the driver’s side foot well of appellant’s car. Appellant was transported to the hospital, where his blood was drawn at 8:36 a.m. A forensic toxicology analysis showed that appellant had a blood-alcohol concentration of 0.12 percent. The driver of the Toyota that appellant crashed into suffered serious injuries and spent 30 days in the hospital. The man’s aunt, who was in the back seat of the Toyota, died as result of her injuries. The pedestrian who was hit by the Toyota also died.
D’Paris Williams, one of the three men appellant confronted at Valencia Gardens, testified at appellant’s trial. Williams had suffered a head injury in an unrelated incident, which made it difficult for him to remember much about the altercation with appellant. He did remember that he was with two other men at the complex when “somebody just came by and just shot at us.” After refreshing his memory with a statement he previously made to the police, Williams recalled that a man in a black car came up to them and said “Where you from?” Williams said Valencia Gardens and then he ducked because a shot was fired.
At trial, the jury watched video of surveillance footage from cameras near the location of the shooting that was recorded between 7:30 a.m. and 8:30 a.m. on January 1, 2013. Two DVD discs admitted into evidence as People’s Exhibit 6 and Exhibit 15 show three men walking through the complex who do not appear to be armed. They also show appellant’s car driving down the street more than once. There is no clear depiction of the shooting itself, but the cameras capture the men running for cover behind parked cars and coming out only after appellant’s car has retreated down the street.
The prosecution also presented expert evidence regarding criminal street gangs through the testimony of San Francisco Police Sergeant Michael Browne, a member of the department’s gang task force. Browne testified that he had a few personal interactions with appellant and was also familiar with his history, which indicated that appellant joined the Norteno street gang when he was 14 years old. Browne testified about appellant’s prior convictions and other incidents which led Browne to conclude that appellant was an active gang member when he confronted the three men at Valencia Gardens. Browne also offered the opinion that it was likely that appellant’s crimes at the housing project were committed for the benefit of the Norteno gang. According to Browne, a common tactic associated with gang crimes is for the gang member to ask potential victims where they are from. A response other than the gang member’s affiliation “would be a confrontational response at the minimum” and could lead to an assault or shooting.
B. The Defense Case
Appellant testified that prior to the events of January 1, 2013, he was relatively happy. He had a job, his girlfriend was pregnant with his first child, and he was preparing to apply to college. He had made mistakes in his youth and committed crimes, but he was in the process of changing his life. He was also making an effort to extricate himself from the Norteno gang.
Appellant gave the jury a detailed account of his actions on New Year’s Day 2013. He spent the early morning hours at a party at his cousin’s home, where he drank alcohol and also used cocaine. At some point, his girlfriend began to feel sick, so he drove her to his house and then headed back to the party. He stopped for gas, and then he “must not have been paying attention” because he “ended up over by 15th Street.” As he was driving by Valencia Gardens, appellant heard a loud noise and thought somebody had shot a gun at his car, which had happened to him on a prior occasion. Appellant “kind of ducked down,” then looked back and saw a group of guys on the corner. When he realized that somebody had thrown something at his car, appellant became “really angry.” As he explained to the jury: “I just remember I was real angry, and I just got that bullet hole fixed and I had another one. My mom was—you know, she was screaming at me a lot because these damages to the car. I just remember thinking I had another thing to take care of and I don’t have a lot of money and just wanted to find somebody—to find somebody to pay for the damages. I just remember driving around, looking for the group of guys. I figured they lived in that apartment complex because they were by that corner.”
Appellant testified that he did not know if the Norteno gang had any problem with the residents of Valencia Gardens, and that his decision to go back and look for the men had nothing to do with his gang affiliation. He loved his car, had just gotten it fixed, and he was “pissed” and “real angry” because he could not think of any reason that anybody would throw anything at his car. After reentering Valencia Gardens, appellant pulled up near the group of guys he had seen on the corner, and then the following events occurred: “And I just remember I was yelling at them as I was pulling up. And they were yelling back, and it was all real fast. I just remember I pulled up in the area, and they made like some fast movements. I don’t know; I just I remember feeling scared, thinking I was in danger. And I just remember going for my gun to protect myself, and I just—I grabbed the gun real fast.” Then, appellant “heard” the gunshot from his own gun and was “startled” and “shocked” because he thought he had the safety on. He knew the gun was loaded and could have fired several more shots, but he had not planned to shoot it to begin with, so he just drove away. Under cross-examination appellant admitted he pulled the trigger but he reiterated that things happened very fast and he thought the safety was on.
Appellant testified that after he drove away, he remembered that he still needed to find out who the people were so he could get somebody to pay for his damages because he did not have much money. So he drove back around but could not find anybody, so at that point, he left the area and drove to a Safeway parking lot. He was still angry and needed to calm himself down and go home to his girlfriend before he got himself into any trouble. Appellant was on 21st Street and Mission when he saw the police lights and started to panic because he was on probation and had a gun. Thinking about the things he would be “basically throwing in the gutter,” (school, work, his pregnant girlfriend) appellant just drove away. He could not remember much about the crash, except that it happened “real fast.”
At trial, the defense also elicited testimony from San Francisco Police Officer Jeffrey Ross. Ross testified that the three men involved in the altercation with appellant at Valencia Gardens all gave statements to the police. Each man was transported to the station by a different officer and, as they were entering the building, one of the men made the following statement to nobody in particular: “I should not have thrown a rock at that car.” The defense also presented testimony from a firearm expert who analyzed the gun recovered from appellant’s car. The witness testified that he was able to pull the trigger and have the hammer drop even when the safety was on, which should not have happened if the gun was functioning properly.
C. Appellant’s Convictions and Sentence
In April 2015, a jury convicted appellant of the following offenses: three counts of assault with a semiautomatic weapon (§ 245, subd. (b); counts 1, 2, 3); negligent discharge of a firearm (§ 246.3; count 4); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 5); evading an officer with willful disregard for the safety or persons or property (Veh. Code, § 2800.2, subd. (a); count 6); evading an officer causing serious bodily injury (Veh. Code, § 2800.3, subd. (a); count 7); driving under the influence causing injury (Veh. Code, § 23153, subd. (b); count 8); and two counts of manslaughter while intoxicated (§ 191.5, subd. (a); counts 11, 12). 
The jury also found true sentence enhancement allegations that appellant intentionally discharged a firearm during the commission of a felony (§ 12022.5, subd. (a); counts 1, 2, 3); personally inflicted great bodily injury during commission of the charged offenses (§ 12022.7, subd. (a); counts 8, 11, 12); and caused bodily injury and death to more than one victim (Veh. Code, § 23558; count 8). However, the jury returned not true verdicts with respect to enhancement allegations that appellant’s offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b); counts 1, 2, 3, 4).
The sentencing hearing was delayed for several months while appellant pursued and ultimately obtained writ relief with respect to a prior felony conviction for participation in a criminal street gang in violation of section 186.22, subdivision (a). On May 5, 2016, appellant was sentenced to a total term of 27 years 8 months in state prison. The components of this sentence are set forth in our discussion of appellant’s claim of sentencing error.
A. Appellant’s Request for a Self-Defense Jury Instruction
Appellant contends that his convictions for felony assault with a semiautomatic weapon (counts 1-3) and negligent discharge of a firearm (count 4) must be reversed because the trial court erred by refusing to instruct the jury regarding self-defense.
“‘It is well settled that a defendant has a right to have the trial court . . . give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of the defendant [citation]—unless the defense is inconsistent with the defendant’s theory of the case [citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether “there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .” [Citations.]’ [Citations.]” (People v. Mentch (2008) 45 Cal.4th 274, 288, 85 Cal. Rptr. 3d 480, 195 P.3d 1061; see also People v. Salas (2006) 37 Cal.4th 967, 982-983, 38 Cal. Rptr. 3d 624, 127 P.3d 40 (Salas).)
At trial, the defense requested that the trial court instruct the jury with CALCRIM No. 3470, which states in pertinent part:
“The defendant acted in lawful [self-defense] if: [¶] 1. The defendant reasonably believed that [he] was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was [imminent danger of bodily injury to himself]. Defendant’s belief must have been reasonable and [he] must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful [self-defense]. [¶] When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful [self-defense]. If the People have not met this burden, you must find the defendant not guilty . . . .”
The defense argued that a self-defense instruction was supported by evidence that appellant was afraid for his safety when he brandished his gun because he was outnumbered by three men who made sudden movements and may even have shot at him. According to this defense theory, appellant intentionally brandished but did not intentionally fire his gun. Rather it accidentally discharged because the safety did not function as is should have. The prosecutor opposed a self-defense instruction, arguing that there could be a question about whether the gun accidentally discharged, but there was no evidence that appellant was acting in self-defense when he assaulted the men at Valencia Gardens.
The trial court agreed to instruct the jury regarding the defense theory that appellant accidentally discharged his gun, but found that the evidence did not support his claim of self-defense. The court reasoned as follows: “The person who would have been in [the] best position to know why he reasonably believed he was in immediate danger or imminent danger of being assaulted would have been [appellant] himself. But he didn’t testify there was a weapon. He didn’t testify that he saw a gun. In fact, all he testified was that he saw movement. Therefore it was in my view not reasonably necessary to defend against that danger by pulling out a gun. [¶] His testimony was that he was in a car—a car that he acknowledged could go 60 miles an hour and did moments later. And that certainly would have been the force one would have used to escape any imminent danger, as required by the elements of 3470.”
The trial court did not err by refusing to give CALCRIM No. 3470 because the record does not contain evidence sufficient for a reasonable jury to find in favor of appellant with respect to his theory of self-defense. (See Salas, supra, 37 Cal.4th at p. 982.) Rather, the trial evidence affirmatively shows that he did not act in self-defense when he assaulted the three men at Valencia Gardens. Appellant, who was driving a car, decided when to come and go, while the men, who were all on foot, were forced to hide behind cars for their own safety. Appellant himself conceded that he tracked down the men because he was furious that they had thrown something at his car, and that he pointed a loaded handgun at them. Appellant claimed he thought the safety was on, but admitted that he pulled the trigger. He also claimed there was a lot of yelling and commotion, but he did not testify that the men had a weapon or that they actually threatened him in any way.
Appellant contends that a self-defense instruction was supported by substantial evidence that the three men were the “initial aggressors” because they threw a rock which caused appellant to believe that he was being fired upon. The problem with this argument is that appellant testified that when he heard or felt something hit his car, and thought somebody may have shot at him, he reacted with anger not fear. Precisely because appellant was mad rather than afraid, he turned around and found the three men and brandished his loaded gun at them. Thus, by his own admission, appellant was not acting in self-defense when he tracked down the three men and assaulted them with his gun.
Appellant argues that evidence one of the men acted in a “threatening manner” was sufficient to raise a question as to whether appellant’s use of a firearm was a reasonable response to the threat. At trial, appellant’s defense counsel characterized the hand movements of one man as threatening, but appellant himself did not use that term. He testified that after he made the decision to return to Valencia Gardens for a second time, he was already yelling at the three men as he drove up next to them. They yelled back and also made “some fast movements.” Appellant did not testify that anybody threatened him, but simply claimed that “I don’t know; I just I remember feeling scared, thinking I was in danger.”
“‘To justify an act of self-defense . . . the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]’ [Citation.]” (People v. Minifie (1996) 13 Cal.4th 1055, 1064, 56 Cal. Rptr. 2d 133, 920 P.2d 1337, italics omitted.) Furthermore, “[t]he threat of bodily injury must be imminent [citation], and ‘. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]’ [Citations.]” (Id. at pp. 1064-1065.) Here, assuming appellant genuinely believed he was in danger at some point, undisputed evidence regarding the circumstances under which appellant drew and fired his gun preclude a finding that his belief was reasonable. That same evidence conclusively shows that appellant did not face an imminent threat of bodily injury because he was armed and in a moving vehicle while the unarmed men were on foot. Finally, by the same token, appellant’s decision to draw a loaded weapon was by its very nature an excessive response to any fear that appellant experienced as a result of some unspecified movements by the three men. In short, the trial court did not err by refusing to give CALCRIM No. 3470 because the trial evidence did not support it.
B. Appellant’s Sentence
Appellant contends this case must be remanded for resentencing because the trial court violated section 654 by punishing him twice for some of the conduct resulting in his convictions.  “Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.] [¶] Section 654 does not, however, preclude multiple punishment when the defendant’s violent act injures different victims. [Citations.]” (People v. Deloza (1998) 18 Cal.4th 585, 591-592, 76 Cal. Rptr. 2d 255, 957 P.2d 945.)
At the May 2016 sentencing hearing, the trial court explained the components of appellant’s aggregate sentence of 27 years 8 months in state prison. The court stated that appellant’s manslaughter convictions were his most serious offenses, but found that it was legally required to designate one of the assaults (count 1) as the principal term, which it calculated as 9 years plus 4 years for the sentence enhancement, for a total of 13 years. The court imposed consecutive aggregate terms of 3 years 4 months for the other two assaults (counts 2, 3).
For negligent discharge of a firearm (count 4), the court sentenced appellant to a 2-year term, which was stayed under section 654 based on the court’s finding that it was the same conduct punished in counts 1 through 3.
The court imposed a concurrent midterm sentence of 2 years for appellant’s conviction for being a felon in possession of a firearm (count 5).
The court then found that appellant’s convictions for evading a police officer in willful disregard for the safety of persons or property (count 6) and evading a police officer causing serious bodily injury (count 7) were based on the same conduct. Therefore, it imposed a 2-year term for count 6, which was stayed under section 654, and a consecutive term of 1 year 8 months for the count 7 conviction.
For driving while under the influence causing injury (count 8), the court imposed an aggregate consecutive sentence of 2 years 4 months, which included 8 months for the offense, 1 year for a great bodily injury enhancement, and 8 months for a multiple victim enhancement.
Finally, the court imposed consecutive 2-year terms for each of the manslaughter convictions (counts 11, 12), but it stayed sentences with respect to great bodily injury enhancement allegations that had been found true by the jury with respect to each of these offenses.
Appellant first contends that the trial court violated section 654 by imposing a consecutive term for appellant’s count 7 conviction for evading an officer causing injury. According to appellant, this offense and the offenses of driving under the influence (DUI) causing injury (count 8) and vehicular manslaughter (counts 11, 12) were part of an indivisible course of conduct because they all involved a single criminal objective—to evade the police. Thus, appellant concludes, imposing a consecutive term under count 7 constituted an impermissible double punishment because appellant was also sentenced to consecutive terms for the DUI and two manslaughter convictions.
“A course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment. [Citation.] ‘If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.] If, on the other hand, ‘[the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.] Section 654 turns on the objective in violating both provisions, not the Legislature’s purpose in enacting them. [Citation.]” (People v. Martin (2005) 133 Cal.App.4th 776, 781, 35 Cal. Rptr. 3d 105.) “The question of whether a defendant held multiple criminal objectives presents a question of fact, and an appellate court reviews the trial court’s finding on this issue under the substantial evidence test. [Citations.]” (People v. Arndt (1999) 76 Cal.App.4th 387, 397, 90 Cal. Rptr. 2d 415.)
In the present case, the record contains substantial evidence that appellant pursued two criminal objectives after committing his crimes at Valencia Gardens. First, he made the decision to drive a car while he was intoxicated. This conduct proximately caused injury to one victim (count 8) and death to two victims (counts 11, 12). Second, while appellant was driving intoxicated, he developed an additional objective to evade the police. This objective was separate from, and not merely incidental to, appellant’s commission of the DUI, and also constituted an independent violation of the law punishing evasion of a police officer causing injury. Thus, the trial court did not violate section 654 by imposing a consecutive sentence for the count 7 conviction.
In a separate argument, appellant contends that his count 8 sentence for DUI causing injury violates section 654 because his aggregate term for committing that offense includes an 8-month enhancement for causing injury to more than one person (Veh. Code, § 23558). Appellant argues that this enhancement should have been stayed because appellant was subject to separate punishment for causing injury to each of the crash victims by virtue of his sentences for the substantive offenses of DUI causing injury (count 8) and the two manslaughters (counts 11 & 12). (Citing People v. McFarland (1989) 47 Cal.3d 798, 805, fn. 8, 254 Cal. Rptr. 331, 765 P.2d 493.) The People concede that this additional sentence enhancement should have been stayed under section 654. Accordingly, we will remand this case so the court can reconsider the proper sentence for the count 8 conviction.
C. Appellant’s Status as a Youthful Offender
Appellant contends that he is also entitled to a remand for a hearing affording him the opportunity to make a record of the kinds of information that will be relevant when he becomes eligible for a youth offender parole hearing pursuant to section 3051.
1. The Statutory Procedure
“A youth offender parole hearing is a hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or younger . . . at the time of his or her controlling offense.” (§ 3051, subd. (a).) Because appellant was 19 when he committed these offenses and received a lengthy determinate sentence, he will likely be entitled to a youth offender parole hearing after he has served 15 years of his sentence. (§ 3051, subd. (b)(1).) 
Evidence that may be considered at that review hearing is outlined in section 3051, subdivision (f), which states in part: “(1) In assessing growth and maturity, psychological evaluations and risk assessment instruments, if used by the board, shall be administered by licensed psychologists employed by the board and shall take into consideration the diminished culpability of youth as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual. [¶] (2) Family members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime or his or her growth and maturity since the time of the crime may submit statements for review by the board.”
Appellant contends this case must be remanded because the trial court did not afford him the opportunity to present evidence about his current circumstances that may be relevant and admissible at his future youth offender parole hearing. The People dispute this contention, pointing out that appellant’s trial counsel filed a sentencing memorandum accompanied by extensive documentary evidence about appellant’s personal circumstances that was admitted without limitation at the sentencing hearing. However, in appellant’s view, the defense evidence submitted at that hearing addressed only current sentencing factors as opposed to the issues that will be relevant in 15 years’ time when his parole is conducted. Claiming that he is entitled to a remand so he can make a record of evidence made relevant by section 3051, appellant cites People v. Franklin (2016) 63 Cal.4th 261, 282-284, 202 Cal. Rptr. 3d 496, 370 P.3d 1053 (Franklin).
The Franklin defendant was 16 when he shot and killed another teenager. (Franklin, supra, 63 Cal.4th at p. 268.) He was convicted by a jury of first degree murder with a gun use enhancement, and his sentence of two consecutive 25-year-to-life terms was statutorily mandated at the time it was imposed. (Id. at pp. 268 & 272.) He challenged the constitutionality of this sentence, arguing it was the equivalent of a sentence of life without parole (LWOP) for a juvenile offender, which violates the Eighth Amendment’s bar against cruel and unusual punishment. (Id. at p. 272.) The Supreme Court held that this constitutional challenge was mooted by section 3051 and related provisions, which were enacted after the Franklin defendant was sentenced. (Id. at p. 286.)
The Franklin court reasoned that section 3051 “changed the manner in which the juvenile offender’s original sentence operates by capping the number of years that he or she may be imprisoned before becoming eligible for release on parole. The Legislature has effected this change by operation of law, with no additional resentencing procedure required. [Citation.]” (Franklin, supra, 63 Cal.4th at pp. 278-279.) Thus, the court found that a juvenile sentence that might otherwise constitute the equivalent of an LWOP does not violate the constitution for that reason alone because section 3051 and related statutes ensure that this category of offenders will have a meaningful opportunity for release after no more than 25 years. (Id. at p. 277.)
The Franklin court also concluded that, although the defendant’s claim was moot, the matter had to be remanded because it was not clear whether the defendant had been afforded a sufficient opportunity in the trial court “to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at p. 284.) The court provided the following description of the nature of the inquiry upon remand: “If the trial court determines that [defendant] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [Defendant] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.” (Id. at p. 284.)
In the present case, the People contend that appellant is not entitled to a remand for a “Franklin hearing” because—unlike the Franklin defendant—appellant was sentenced after section 3051 was enacted, and thus appellant did have the opportunity to present evidence regarding his youth related circumstances at the sentencing hearing. Section 3051 went into effect on January 1, 2014. (See Franklin, supra, 63 Cal.4th at p. 276.) Originally, section 3051 was limited to prisoners who were under 18 at the time of their offenses, but it was extended to include prisoners under the age of 23 in January 2015, more than a year before appellant was sentenced in this case.
Appellant takes the position that, although section 3051 was enacted before he was sentenced, it simply was not clear that he had a right to make a contemporaneous record of section 3051 evidence at his sentence hearing until Franklin was decided a few weeks after his sentencing hearing was completed. To support this argument, appellant cites People v. Jones (2017) 7 Cal.App.5th 787, 213 Cal. Rptr. 3d 167 (Jones).
In Jones, supra, 7 Cal.App.5th 787, the defendant appealed convictions for murder and attempted murder committed when he was 16 years old. One issue on appeal was whether his aggregate sentence of 80 years to life in prison constituted cruel and unusual punishment. (Id. at p. 792.) The Jones court found that this constitutional challenge was moot under Franklin, supra, 63 Cal.4th 261, but remanded the case so the trial court could determine whether the defendant was “entitled to a hearing to present evidence relevant to his future youthful offender parole hearing.” (Jones, at p. 815.) In ordering a remand, the Jones court acknowledged that the defendant was sentenced after the enactment of section 3051, but observed that defense counsel made only a passing reference to the youthful offender parole process at the sentencing hearing, and did not “attempt to place on the record any type of mitigating evidence that could be relevant at Jones’s eventual youth offender parole hearing.” (Id. at p. 819.) The court also expressed concerned that neither party had “addressed the type of evidentiary record showing that would be required for [the defendant’s] youth offender parole hearing” because the Franklin court had opined that “such a record is better made close in time to the offense ‘rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away.’ [Citation.]” (Ibid.)
The Jones court rejected the People’s argument that a remand was unnecessary because the defendant had the opportunity to present evidence relevant to his status as a youthful offender even if he did not avail himself of that opportunity, reasoning as follows: “Prior to Franklin, however, there was no clear indication that a juvenile’s sentencing hearing would be the primary mechanism for creating the record of information required for a youth offender parole hearing 25 years in the future. Franklin made clear that the sentencing hearing has newfound import in providing the juvenile with an opportunity to place on the record the kinds of information that ‘will be relevant to the [parole board] as it fulfills its statutory obligations [*30] under sections 3051 and 4801.’ [Citation.]” (Jones, supra, 7 Cal.App.5th at p. 819.)
We agree with the Jones court’s assessment of the impact of Franklin. But we also recognize that Franklin and Jones challenged juvenile sentences on the ground that they were the functional equivalent of LWOPs. (Franklin, supra, 63 Cal.4th at p. 276; Jones, supra, 7 Cal.App.5th at p. 815.) In that context, constitutional considerations require extra assurance that the defendant has had a full and meaningful opportunity to create a record under section 3051. Here, by contrast, appellant has never questioned the constitutionality of his sentence. Thus, while appellant will have a statutory right to a youth offender parole hearing after serving 15 years of his sentence, that hearing is not constitutionally mandated. Neither party cites authority entitling an appellant to a remand for a Franklin hearing under the circumstances presented here.
Furthermore, in contrast to Jones, the record of appellant’s sentencing hearing does contain significant evidence regarding his personal characteristics, over 35 pages of exhibits that include letters of support from family and community organizations, program certificates, and a personalized letter from appellant’s social worker. Appellant insists that this evidence was submitted in order to address discretionary sentencing issues rather than his status as a youth offender who would qualify for a section 3051 hearing. However, appellant does not contend that he had other evidence that he was prevented from submitting or that he decided not to present because he was unaware of his right to do so.
Nevertheless, we conclude that, while a Franklin hearing is not constitutionally mandated in this case, Franklin explained the importance and scope of a section 3051 hearing applicable to all youthful offenders sentenced to long terms. That decision was not handed down until after appellant’s sentencing hearing. We have already concluded that a remand is appropriate to correct a sentencing error. Once the case is remanded for resentencing, the trial court also should conduct an inquiry under Franklin to determine whether the parties have been afforded a sufficient opportunity to make a record of evidence that will be relevant to appellant’s future youth offender parole hearing. If a sufficient opportunity was not afforded, the court should exercise its discretion to decide what additional evidence may be put into the record by both parties to comport with Franklin.
D. Appellant’s Sentence Enhancement for Personal Gun Use
As noted earlier, the consecutive terms for appellant’s three assault convictions included enhancements for personal use of a firearm during the commission of a felony, which were imposed pursuant to section 12022.5, subdivision (a). When the trial court sentenced appellant in 2016, it did not have discretion to dismiss or strike the personal gun use enhancement allegations or findings. (Former § 12022.5, subd. (c).) However, effective January 1, 2018, amended section 12022.5, subdivision (c) states: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.”
The parties agree that amended section 12022.5, subdivision (c) applies retroactively to appellant because: (1) the amendment went into effect while this appeal was pending (In re Estrada (1965) 63 Cal.2d 740, 48 Cal. Rptr. 172, 408 P.2d 948), and (2) the amendment reduces the punishment for a particular crime by giving trial courts discretion to impose a lower term (People v. Francis (1969) 71 Cal.2d 66, 75-78, 75 Cal. Rptr. 199, 450 P.2d 591). Nevertheless, the People contend that a remand is unnecessary because “although the new law is retroactive, it is apparent that the trial court would not dismiss or strike the firearm enhancements” in this case. We decline to speculate about this matter since a remand is appropriate on other grounds. Thus the trial court may determine whether to strike or dismiss the gun use enhancements.
The judgment is affirmed and this case is remanded with directions to (1) correct the sentencing error discussed herein, and (2) determine whether appellant was afforded a meaningful opportunity to make a record of evidence relevant to his future youth offender parole hearing, and if not, to hold a hearing allowing both parties to present additional evidence for this purpose. On remand, the trial court will also have the opportunity to exercise its discretion under section 12022.5, subdivision (c).
RUVOLO, P. J.
RIVERA, J. [*]
*. Retired Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1. Unless otherwise stated, subsequent references to an undesignated statute are to the Penal Code.
2. Appellant’s count 4 conviction was a lesser included offense of the count 4 charge of discharge of a firearm at an inhabited dwelling (§ 264).
Appellant was also charged with two counts of murder (§ 187, subd. (a); counts 9,10), but a mistrial was declared as to those two counts after the jury was unable to reach a unanimous verdict.
3. Section 654, subdivision (a), states in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
4. Section 3051, subdivision (b)(1) states: “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 determinate sentence shall be eligible for release on parole at a youth offender parole hearing by the board during his or her 15th year of incarceration, unless previously released pursuant to other statutory provisions.”
*. Retired Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.