Filed 4/2/18 In re Torres CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----




In re JUAN ANTONIO DANIEL TORRES,
on Habeas Corpus.
C084187

(Super. Ct. Nos. STKCRFMISC20160002658, SF103743B)



Juan Antonio Daniel Torres petitions for writ of habeas corpus, challenging his sentence in a 2008 criminal conviction. He was convicted of one count of first degree murder with special circumstances, seven counts of premeditated attempted murder (four of which were reversed on appeal), three counts of shooting a firearm from a motor vehicle, one count of street terrorism, and related enhancements. (People v. Soto (Apr. 6, 2011, C060566) [nonpub.opn.].) He was 14 years old at the time of the offenses. Petitioner’s sentence includes determinate and indeterminate terms that amount to 135 years and eight months to life. He claims his sentence constitutes cruel and unusual punishment considering his age at the time of the crimes. He also makes related claims that he was denied his rights to due process of law and the effective assistance of counsel at sentencing based on the lack of evidence before the sentencing court and its failure to adequately consider petitioner’s background and related circumstances of his youth.
We conclude petitioner is not entitled to a resentencing hearing. He will be eligible for parole after serving 25 years of his sentence based on legislative amendments designed to ameliorate the constitutional concerns in the juvenile sentencing context. (See Pen. Code, §§ 3051, 4801, subd. (c) [unless otherwise stated, statutory section references that follow are to the Penal Code].) Under the circumstances, we conclude the Supreme Court’s reasoning in People v. Franklin (2016) 63 Cal.4th 261 (Franklin), is controlling and petitioner’s sentence, as modified, is constitutional. But we hold, based on the particular facts of this case, that Franklin compels the trial court to allow petitioner to make a record of “any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing.” (Id. at p. 284.) Petitioner is entitled to no further relief based on any of his claims.
FACTS AND PROCEEDINGS
1. The Underlying Crimes
The crimes stem from gang-motivated shootings in Stockton in 2007 involving petitioner, his half-brother Daniel Torres (Daniel), who is described as older than petitioner, and Jairo Soto. Soto was 19 years old. There was evidence of petitioner’s involvement with a neighborhood subset of the Sureños. The following summary of the facts is taken from the appellate court opinion.
The first shooting occurred in February 2007. Petitioner was driving, and Daniel was in the passenger seat. They passed a house and glared at people nearby eating ice cream, one of whom was associated with Norteños and was wearing Norteño colors. Petitioner then turned around and said: “What are you guys looking at?” Witnesses saw him pull out a rifle and fire one shot, which hit a victim between the shoulder blades, injuring his spinal cord and resulting in paralysis.
The other two shootings occurred in March. Petitioner was driving, Soto occupied the front passenger seat, and Daniel was in the back. Soto leaned out of the window, pointed a rifle, and fired one shot at a man who was in the driveway in front of his house talking with a friend. Apparently, the men had hairstyles associated at the time with the Norteños. Fortunately, nobody was hit by the shot. Petitioner and his confederates continued driving.
Later, they saw a couple of men who were walking. One was wearing Norteño colors and associated with gang members, and the second had Norteño-related tattoos and had once been a member of a Norteño subset. Someone in the car yelled, “Let’s get these.” Daniel handed the rifle to Soto, and Soto fired a shot at the two men. He missed. Petitioner and his confederates encountered the same victims a short time later and targeted them again. This time, petitioner fired the rifle from the driver’s side window before driving away. One victim was hit and died a short time later.
2. Sentencing and Appeal
By the time the probation report was prepared, petitioner was 16 years old. The report contained limited information about his background, with a brief description of his family, including his parents’ occupations. Petitioner described his childhood as “pretty cool,” indicating he got along with his family, and that there was no abuse, neglect or other issues. The report noted no psychometric data available regarding petitioner but briefly described his substance abuse.
The report says petitioner acknowledged he had used marijuana and methamphetamine beginning at age 14 and that he was using both substances on a fairly regular basis by the time of his arrest for these crimes. He reported smoking marijuana approximately three times a month and using methamphetamine approximately twice a week. Petitioner said he had started using drugs with others who were involved in the Sureños and commented as to gang involvement “that when his brother’s friends would come over, they would hang around the house and listen to music.”
The report noted that petitioner had been in the 9th grade and attending a local high school before his incarceration and he was continuing his education at the Juvenile Justice Center. Petitioner reported he needed 80 credits to graduate and receive his high school diploma. He had a poor conduct history during prior confinement, with some 98 incident reports noted for various issues, including disobedience, fighting, possession of contraband, and disturbing the unit. One serious incident was described from March of 2007, shortly after petitioner’s arrest following the shootings, in which he attacked another juvenile and incited a riot.
The probation officer observed petitioner did not have anything to say about the crimes. “He talked about how well he was doing at the hall, saying he would be getting his diploma. He admitted to getting into a few fights, but said that he has not been getting into trouble lately. He does not have a clue of the seriousness of the nature he got himself into. [Sic] He showed no remorse and basically had a blank expression on his face.” The probation officer indicated petitioner’s “ego got the best of him at such a young age to commit such a violent act.” The probation officer remarked: “To intentionally shoot at another person because he perceived the victims as a rival gang is beyond comprehension.”
Petitioner’s trial counsel requested funds for an expert evaluation of petitioner for sentencing, but the trial court denied the request. Counsel explained the defense wanted a “maturity and responsibility determination by a local psychologist for the Court’s benefit” that would consider “his level of functioning and maturity.” The court ruled an evaluation was not relevant to sentencing issues pertaining to the imposition of consecutive as opposed to concurrent sentences or “even” factors in mitigation.
Trial counsel submitted a written, seven-page statement in mitigation as well as a shorter motion requesting imposition of concurrent sentences. Counsel briefly discussed petitioner’s age and pertinent circumstances relating to the crime, including the potential influence of older peers. In the section labeled “mitigating factors,” counsel emphasized petitioner had been 14 years old and asserted: “Considering his age, he lacked the maturity and capacity to understand fully his actions and the consequence thereof.” Counsel observed petitioner was the youngest of the defendants in the case and suggested his friends were an influence because “[t]he youngest in a group of youths is generally the follower, not the leader.” Counsel cited similar information provided in the probation report concerning petitioner’s family and education. Counsel did not, in the statement in mitigation, otherwise describe any significant family or social issues in petitioner’s background. In one paragraph, counsel briefly reviewed general issues with minors and cited some general studies concerning development. Counsel concluded: “One need not review every study generated regarding mental capacity of juvenile offenders to understand that a fourteen-year-old minor does not think like an adult and therefore should not be held to the same standard.”
At sentencing, counsel echoed these sentiments, emphasizing the motivation for the crime and petitioner’s age and remarked, “These kids have no understanding of ultimate consequences, either for their own actions or for the result that is visited upon them for their actions.” The trial court disagreed, observing this was not “youthful folly based on the lack of maturity.” The court commented to petitioner’s family that “[s]omeone came into your home and poisoned your son with this gang influence” and rhetorically asked why family members did not stop it and why petitioner was “left to his own devices at this young age to be so poisoned.”
The decision to deny a psychological evaluation for purposes of sentencing was affirmed on appeal based on case law, including the decision in People v. Stuckey (2009) 175 Cal.App.4th 898, which held that a defendant is not normally entitled to the appointment of experts after trial in connection with a sentencing proceeding. In the direct appeal opinion, this court otherwise reversed some unrelated counts and corrected petitioner’s sentence. (People v. Soto, supra, C060566.) As recalculated, his sentence amounts to 135 years eight months to life in prison. Following resolution of petitioner’s direct appeal, he filed a petition for review in the Supreme Court, which that court denied.
3. Habeas Proceedings
In early 2016, petitioner filed a petition for writ of habeas corpus in the superior court raising the issues brought forth here. That petition and the subsequent petition to this court are supported, in part, by an evaluation obtained from Jesse De La Cruz. De La Cruz has a master’s degree in social work and a doctorate in educational leadership. De La Cruz explains that he interviewed petitioner, his family and some school staff, and he details relevant factors influencing petitioner’s childhood development and maturity.
Because of the confidential nature of the information in the report, which was filed under seal, we shall summarize it in broad terms to avoid disclosure of personally sensitive information. To the extent necessary, this court finds the limited disclosure in the following summary to be in the public interest. Respondent was provided with the sealed report at the time this court requested an informal response. The report remains under seal, without objection by respondent.
De La Cruz describes a much more dysfunctional home environment than had been described at the time of sentencing, and states that petitioner witnessed alcohol and domestic abuse. The report details petitioner’s relationship with his family and describes factors that influenced his development. Petitioner grew up in a poor area of Stockton with a significant gang problem, and he had problems that De La Cruz said began in middle school and that petitioner attributed to being labeled as a minority Sureño. De La Cruz observes petitioner was “dealt a hand [over] which he had very little control” and otherwise emphasizes he has the potential for rehabilitation.
The superior court issued an order to show cause, but ultimately denied relief. The court’s decision was based on its application of the state Supreme Court’s decision in Franklin, supra, 63 Cal.4th 261, which was announced shortly before the court issued its order to show cause. The court further found that petitioner had an adequate opportunity to make a record of relevant youth offender characteristics and circumstances at the time of the original sentencing and, consequently, no further hearing was required as described in Franklin.
Petitioner filed the current petition in this court in March 2017. This court requested an informal response from respondent, and petitioner filed a reply. We issued an order to show cause returnable in this court in September 2017, and the parties submitted the written return and traverse.
DISCUSSION
I
The Background of Relevant Law
Within the last several years, decisions by the United States Supreme Court and the California Supreme Court have held a sentencing scheme, as had existed in California, requiring juveniles to receive a mandatory sentence amounting to life without the possibility of parole or its functional equivalent, even in the context of homicide cases, implicates the constitutional ban on cruel and unusual punishment. (Miller v. Alabama (2012) 567 U.S. 460 [183 L.Ed.2d 407] (Miller); People v. Caballero (2012) 55 Cal.4th 262 (Caballero).) These decisions are consistent with the rationale that “such mandatory sentences preclude consideration of juveniles’ chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surround them—no matter how brutal or dysfunctional.” (Caballero, at p. 268, fn. 4.) “Although proper authorities may later determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future.” (Id. at p. 268.) This rule, the so-called “Miller” rule, is fully retroactive and, as such, applies to this case even though petitioner’s conviction was final when the new rule was announced. (Montgomery v. Louisiana (2016) 577 U.S. __ [193 L.Ed.2d 599] (Montgomery).)
In response to the Supreme Court decisions, section 3051 was enacted in 2013. It currently provides young offenders who received lengthy sentences, like petitioner, with earlier opportunities for parole and in that sense supersedes normal rules governing release. In the case of an offender, such as petitioner, who received any indeterminate sentence of 25 years to life, the offender “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.” (§ 3051, subd. (b)(3).) The statute permits early parole consideration even if multiple consecutive sentences are also imposed. (Franklin, supra, 63 Cal.4th at pp. 276-279.) “Section 3051 thus reflects the Legislature’s judgment that 25 years is the maximum amount of time that a juvenile offender may serve before becoming eligible for parole.” (Franklin, at p. 278.) The youth offender parole hearing “shall provide for a meaningful opportunity to obtain release.” (§ 3051, subd. (e).) If parole is not granted at the initial hearing, there are provisions for scheduling subsequent hearings. (§ 3051, subd. (g).)
In Franklin, supra, 63 Cal.4th 261, the California Supreme Court held that enactment of the statute rendered moot claims under Miller, supra, 567 U.S. 460 [183 L.Ed.2d 407], and Caballero, supra, 55 Cal.4th 262, that a juvenile’s mandatory sentence was unconstitutional as the functional equivalent of life without the possibility of parole. “The statute simply and clearly makes the current sentencing scheme constitutional by providing each juvenile offender, universally and on a specified schedule, with the meaningful opportunity for release within their lifetimes that the Eighth Amendment demands.” (People v. Scott (2016) 3 Cal.App.5th 1265, 1282.) “Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.” (Montgomery, supra, 577 U.S. at p. __ [193 L.Ed.2d at p. 622].)
Nevertheless, Franklin, supra, 63 Cal.4th at pages 268-269, 283-284, determined that a juvenile offender might still be entitled to make a record of evidence for later parole consideration. Accordingly, the court remanded the matter to the trial court for the limited purpose of determining whether or not the juvenile offender “was afforded an adequate opportunity to make a record of information that will be relevant to the Board as it fulfills its statutory obligations under sections 3051 and 4801.” (Id. at pp. 286-287.)
The state Supreme Court provided guidance as to the nature of the proceeding that would be necessary if the trial court determined defendant had not been afforded an opportunity to make the type of record the court found essential to later parole consideration. This, in turn, helps inform any decision as to whether such a proceeding is necessary in a particular case. We will refer to the proceeding described as a “Franklin hearing.” If a Franklin hearing is required, the 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 . . . .” (Franklin, supra, 63 Cal.4th at p. 284.) The prosecutor “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.” (Ibid.) Evidence may include testimony pursuant to section 1204 and rule 4.437 of the California Rules of Court, which govern statements in mitigation and aggravation. (Ibid.) “The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender’s characteristics and circumstances at the time of the offense so that the [Parole] Board, years later, may properly discharge its obligation to ‘give great weight to’ youth-related factors (§ 4801, subd. (c)) in determining whether the offender is ‘fit to rejoin society’ despite having committed a serious crime ‘while he was a child in the eyes of the law’ [Citation.]” (Ibid.)
II
The Petitioner is not Entitled to Resentencing
Petitioner raises three related claims: (1) his sentence violates the constitutional prescription against cruel and unusual punishment because it is equivalent to life without possibility of parole, (2) his due process rights were violated at the original sentencing by not affording him the opportunity to prepare mitigating evidence, including the expert evaluation for which he requested funding, and (3) his counsel was ineffective at sentencing in not presenting mitigating evidence. Petitioner argues that he is entitled to a new sentencing hearing. As a fallback argument, petitioner requests that this court remand for a Franklin hearing.
Franklin, supra, 63 Cal.4th 261, recognizes that the Legislature has effectively modified the sentence of juveniles, like petitioner, who received mandatory sentences that are equivalent to life without the possibility of parole. Franklin holds this statutory change renders moot a challenge to a defendant’s original sentence as cruel and unusual punishment pursuant to Miller, supra, 567 U.S. 460 [183 L.Ed.2d 407]. (Franklin, at p. 280.) And the Supreme Court afforded a further remedy designed to protect defendants, like petitioner, at the parole hearing. If the defendant did not have sufficient opportunity to make a record of relevant information at the time of sentencing, as petitioner alleges with respect to his due process and ineffective counsel claims, the defendant must be given that opportunity as soon as practicable by way of a Franklin hearing.
It is true that petitioner’s sentence has a discretionary component; most significantly, the trial court had discretion to impose consecutive or concurrent sentences for the various offenses. But even if the trial court had imposed concurrent sentences, the sentence imposed for only one of the counts would have required petitioner serve more than 25 years before parole eligibility; he would have had to serve 15 years to life plus a consecutive 25 years to life for a firearm enhancement. “[T]he rationale behind the court’s mootness holding in Franklin is that section 3051 ‘effectively reforms the parole eligibility date of a juvenile offender’s original sentence so that the longest possible term of incarceration before parole eligibility is 25 years.’ [Citation.] If that fact precludes a lengthy mandatory sentence from being considered the functional equivalent of LWOP, we perceive no reason the same would not be true with respect to the sentences imposed here, a portion of which was mandatory and the remainder discretionary.” (People v. Cornejo (2016) 3 Cal.App.5th 36, 68, quoting Franklin, supra, 63 Cal.4that p. 281.) Although not essential to our resolution of these issues, we also observe the trial court was disinclined to impose concurrent sentences in this case, a decision fully consistent with the sentencing rules at the time of defendant’s sentencing considering that the crimes involved multiple victims who were targeted in three distinct shooting incidents, two of which were weeks apart. (See Cal. Rules of Court, rule 4.425.)
We hold that the reform of petitioner’s sentence making him eligible for early parole, coupled with the allowance for a Franklin hearing to make the record that is lacking, moots out not only his constitutional claim of cruel and unusual punishment but his remaining claims as well. As we shall explain in the next section, petitioner is entitled to a Franklin hearing. The provision of a Franklin hearing both moots out and militates against sustaining, for lack of prejudice, petitioner’s due process and ineffective counsel claims. He will be afforded the opportunity to generate the type of record he believes should have been made in the first instance and will be eligible for parole based on the change in the law, notwithstanding his original sentence.
Petitioner also argues the statutory changes making him eligible for parole are inadequate because “there is no guarantee that this statute will still exist when Petitioner should be entitled under it to his first parole hearing” and, if the parole board later determines petitioner is not entitled to take advantage of its relief, petitioner’s “unconstitutional sentence remains uncorrected.” Petitioner also complains he “cannot simply wait 25 years to raise his constitutional challenges to the judgment and sentence imposed on him.” These arguments are inconsistent with the reasoning in Franklin, supra, 63 Cal.4th 261, and in any event, petitioner could seek relief based on any change in the law. The allowance for a Franklin hearing obviates each of petitioner’s concerns by creating a record that would serve to evaluate any constitutional claim in the event of a change in the law or procedure for the parole hearing.
III
Petitioner is Entitled to a Franklin Hearing
On habeas corpus review, the superior court concluded, as respondent urges here, that petitioner had a sufficient opportunity to make the type of record discussed in Franklin, supra, 63 Cal.4th 261. It is clear that defense counsel recognized youth as an issue and filed a short statement in mitigation. But focusing solely on the limited efforts by counsel at the time ignores the compelling evidence petitioner presents indicating those efforts were inadequate and indicate significant gaps in evidence, gaps that the Franklin hearing are designed to fill.
While counsel and the court were aware that petitioner’s youth was an issue, that awareness did not equate with a full understanding of the relevant factors that influenced petitioner’s development and, potentially, his involvement in these serious crimes at such a young age. Petitioner was sentenced before the decisions in Miller, supra, 567 U.S. 460 [183 L.Ed.2d 407], and Caballero, supra, 55 Cal.4th 262, and the statutory changes that formally recognized how the circumstances of youth could be relevant and significant in this context. This is a critical factor in our determination that petitioner did not have the type of opportunity to generate a record that was contemplated by the Franklin court. The sentencing court, the probation officer, and even defense counsel did not have the benefit of the guidance this authority later provided. Neither the probation report nor counsel’s statement in mitigation delve into petitioner’s family environment in any detail, other than providing basic information about who petitioner was living with and the employment status of his parents.
It is apparent from a comparison of the probation report with the detailed evaluation by Dr. De La Cruz that the information in the existing record is superficial, at best, and inadequate to guide any subsequent parole board in considering, as it must, relevant factors that bear on petitioner’s youth and maturity at the time. Petitioner’s description of his childhood to the probation officer as “pretty cool” and his failure to delve into troubling aspects of his prior background are themselves evidence of the inadequacy of the existing record. We need not and do not opine on the credibility or weight of De La Cruz’s report itself; the point here is simply that the report is itself evidence that petitioner lacked “sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at p. 284.)
Respondent observes that petitioner was thrice evaluated for his competency to stand trial and ultimately found competent. Respondent argues: “[Petitioner] has not demonstrated that the doctor’s reports that were completed for his three competency psychiatric evaluations would not be information relevant to his eventual youth offender parole hearing.” Respondent notes that only one evaluation was made a part of the record on appeal and was confidential, and respondent has not viewed it but suggests it would have addressed “many factors, such as [petitioner’s] maturity and mental capacity, that would be relevant to his youth offender parole hearing.”
Respondent has not sought permission from this court or opposing counsel to review these documents or to make all of them available as part of the record in this case. Under the circumstances, the return is inadequate. (See Board of Prison Terms v. Superior Court (Ngo) (2005) 130 Cal.App.4th 1212, 1234 [return must allege facts supporting lawfulness of detention and, when appropriate, provide documentation to enable court to determine which are truly disputed factual issues].) Further and in any event, the evaluations of petitioner in connection with his competence to stand trial do not substitute for the type of proceeding described in Franklin, supra, 63 Cal.4th 261. The purpose of a competency evaluation is not to provide evidence in mitigation in connection with petitioner’s youth. While such an evaluation might reasonably touch on petitioner’s maturity, the issues petitioner was facing at the time, including his family and social background, were collateral at best to determining whether petitioner had “ ‘ “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” ’ ” and “ ‘ “a rational as well as factual understanding of the proceedings against him.” ’ ” (Drope v. Missouri (1975) 420 U.S. 162, 172 [43 L.Ed.2d 103, 113].) Moreover, the competency evaluations were not presented for sentencing. We have nevertheless considered petitioner’s factual summary of the evaluations as well as the records under seal and on file in connection with petitioner’s direct appeal. None of the information suggests the existence of these evaluations supplants the need for a full Franklin hearing, which is not to say the competency evaluations might not reasonably be entered into evidence in a Franklin hearing.
Respondent also argues that the thorough evaluation by De La Cruz will be admissible at any subsequent youth offender parole hearing, obviating the need for a Franklin hearing. Respondent points to the statutory mandate requiring the Board to consider this type of information and the provisions of section 3051, subdivision (f), as noted above, which refers to statements by family and community being admissible.
Like petitioner, we are inclined to accept respondent’s concession that De La Cruz’s report would be admissible if offered at a parole hearing. But it is not an adequate substitute for the Franklin hearing petitioner demands. First, petitioner expresses concern that the report “is not part of the portion of the Petitioner’s trial record that will be preserved by the corrections department and automatically be made available to the parole board for review.” Considering also the broader purpose of the Franklin hearing, we would not want to limit either party from incorporating additional documents or testimony into the record at this (relatively) early juncture. In this respect, the Franklin hearing could help preclude disputes in the context of a later parole proceeding concerning petitioner’s background or credibility. For example, one concern that may arise is if the prosecution believes some aspect of the De La Cruz’s report is inaccurate, incomplete, or misleading. In describing the Franklin hearing, the Supreme Court referred to it as providing an opportunity for both parties to participate in generating the record. The Supreme Court pointed out that live testimony may be subject to cross-examination and that the prosecutor can likewise put evidence on the record bearing on relevant, youth-related factors. (Franklin, supra, 63 Cal.4th at p. 284.) While some time has elapsed since petitioner’s 2008 conviction, assembling a complete record at this time is not so difficult a task as it might be at or near petitioner’s eventual parole hearing, when “records may have been lost or destroyed, or family or community members may have relocated or passed away.” (Id. at pp. 283-284.)
DISPOSITION
The superior court is directed to conduct a Franklin hearing for petitioner in People v. Torres, San Joaquin County case No. SF103743B, in accordance with this opinion, and shall establish the procedures for conducting this proceeding. (See Franklin, supra, 63 Cal.4th at p. 284.) Petitioner, who is currently represented, is entitled to counsel during the proceeding and may seek appointment of counsel by the trial court if current counsel does not continue to represent him.





HULL , Acting P.J.



We concur:



ROBIE , J.



BUTZ , J.