Filed 11/30/18 P. v. Bhushan CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

On the afternoon of December 30, 2012, 15-year-old Jubrille Jordan was killed by a bullet to her head as she was standing on the sidewalk near 66th and Lion in the “69th Avenue Village” housing complex in Oakland, waiting with her sister, two friends, and a baby while another friend stopped to talk with two male friends. One of the young men, Wyone Bordley (known as “Mo-Mo”), was shot in the foot. Twenty spent casings were found at the scene of the shooting, fired from two different guns. Eight of the casings, found in a group on the sidewalk, were fired from a Smith and Wesson automatic weapon; the other 12, found in a separate group on the street, came from a Glock firearm.

Juvonna Jordan, Jubrille’s sister, testified that when the shooting began, she glanced back and saw a young Black man aiming a gun in their direction. He had “big lips” and was wearing a black hoodie and red sweatpants. She was not able to identify the shooter in the photo lineup the police showed her, which included a photograph of Jones. At Thompson’s trial, she testified that the shooter’s lips did not look like Thompson’s. [1]

Bordley was the intended target of the shooting. In July 2012, 15-year-old Hadari Askari had been shot to death in the Village. Marquesha Ruth, Askari’s cousin, explained that although no one had been charged with his murder, her family and friends had “information” that Bordley was the killer, and they wanted to see Bordley dead. There was an understanding that the young men would “take care of it.” These young men included Thompson, whom Ruth had known for at least 10 years; Bhushan, who was a cousin of Ruth’s son Terrence Thompkins; Jones, a close friend of Thompkins’s; and Sammie Standberry, Ruth’s brother.

On December 30, 2012, Ruth saw Bordley in the Village. She called Standberry and Bhushan and told them where she had seen Bordley, then drove to the apartment she shared with Standberry.[2] As they stood talking outside, Bhushan drove up with Thompson in the front passenger seat and Jones in the back. It was later determined that the car they were driving belonged to Bhushan’s father. Ruth and Standberry went to the passenger side of the car and had a brief conversation with them. Appellants said they were “getting ready to go over to the 6-9 Village and take care of Bordley,” which Ruth understood to mean they were going to kill Bordley. Specifically, Bhushan said, “Man, we about to go over there and get on this nigga . . .” and the others in the car nodded.

The group in the car drove away and about half an hour to an hour later, Ruth heard there had been a shooting in the Village in which an innocent girl was killed, and hoped they did not have anything to do with this. She was disappointed to hear that Bordley had been shot in the leg. The next morning, Ruth heard Thompson telling Standberry that he was mad because “when he got over there” Bhushan was scared and “froze up,” so Thompson “took matters into his own hands.” In a recorded phone call between Ruth, Bhushan and Thompkins, who was in jail at the time, Ruth told Thompkins, with reference to the shooting, that “[t]hey said he was looking at the nigga and froze up” and that “KiKi”[3] and Jones “got back his out and shit got ugly man.” Bhushan said he would write and tell Thompkins about it. A week or two later, Ruth heard Bhushan talking with Standberry, again saying that he did not “freeze up,” he “just felt that it wasn’t a good time.”

On December 31, 2012, San Francisco police officers who detained Standberry and Thompson for having an open container of alcohol in public, found a loaded Smith and Wesson in Thompson’s waistband. The bullet recovered from Jubrille Jordan’s body was determined to have been fired from this weapon. The eight shell casings found on the sidewalk at the scene of the shooting came from this weapon. A box of ammunition matching that found at the scene of the shooting was found in a search of Thompson’s home.

Bhushan was arrested on January 9, 2014. His bedroom was searched pursuant to a warrant and a loaded Glock nine-millimeter handgun was found in a backpack. The 12 casings found on the street at the scene of the shooting came from this weapon.

Video clips from cameras in the Village showed two men walking into the garage area of the complex at 3:27 p.m.: One, slightly taller, was wearing red pants, a black hoodie with a white shirt underneath and white shoes, and the other was wearing a gray hoodie, blue jeans and blue and white shoes. The two then approached a silver vehicle parked on 66th Avenue; a person in a white shirt got out of the driver seat and moved into the back seat, the person in the gray hoodie got into the driver’s seat and the person in red pants got into the front passenger seat; and the car pulled out and drove toward Lion. In another clip, a person wearing red pants and a black hoodie walked along the sidewalk with a person wearing a gray hoodie with a white shirt underneath and dark shoes; the two split up, the one in the gray hoodie moving into the street and the one in red pants remaining on the sidewalk, then each fired several rounds, and they ran away together. Another clip showed Bordley running at 3:31 p.m.

Shown the video footage of the men walking in the Village, but not of the actual shooting, Ruth thought the man in the black hoodie and red pants was Thompson, because he always wears a black hoodie, and thought the one in the gray hoodie was Bhushan, based on his walk and stature.

Bhushan was “about 5’11” and weighed 180 pounds”; Jones was “about 6’1” and close to 200 pounds” and Thompson was “about 5’7” and 150 to 160 pounds.”

Oakland Police Sergeant Bradley Baker, the lead investigator on the case, testified that on one of the later clips, the person in the gray hoodie appeared to be smaller in stature than when seen on earlier clips, and was wearing a white shirt that did not appear earlier, as well as different colored shoes. Baker believed that the shooter in the gray hoodie was not the same person as the one in a gray hoodie seen walking through the Village; instead, based on the white shirt under the hoodie, shoe color and shorter height, he thought the shooter was more consistent with the person seen in the video getting out of the driver’s seat and moving to the back seat. At Thompson’s trial, Baker testified that he did not believe Thompson was the person in red pants; he believed Thompson was the shooter in the gray hoodie, which Baker believed had been given to Thompson by the person initially seen in it.

Cell phone records indicated that all three appellants’ phones had been in the area of Thompson’s and Standberry’s homes earlier in the day, then went to an area near the Village, then back to the area of the mens’ homes.

On the evening of December 30, 2012, Thompson texted Bhushan, “Y’all seen the news? One nigga got hit and a bitch died. Born to be a real nigga.” Bhushan texted Jones, “You my son now nigga. Welcome to redrum.” Jones replied, “It’s official . . . which one.” Bhushan texted, “a bitch dude just got hit up watch the 10 news” and then “delete these messages too.” Baker explained that “redrum” was a reference to homicide—murder spelled backwards.

Jail phone calls recorded after Bhushan’s arrest in January 2014, appeared to refer to the gun found in his bedroom being tied to the shooting.[4] A letter from Jones found in a search of Thompkins’s jail cell, postmarked December 27, 2012, was signed with what Baker testified were references to gang shootings and homicide victims Terrence Thompkins and Hadari Askari.[5] Baker testified that a letter from Thompkins to Bhushan postmarked January 18, 2013, saying “you never told me what happened in the 9 with the little nigga,” was referring to the shooting of Jordan and Bordley, “the 9” a reference to the location.

A letter from Bhushan to Thompkins, sent in March 2013, explained Bhushan’s perspective on the shooting. Bhushan denied he ever “froze, went out or stood down” and said that when they “seen them with some bitches and little kids and babies” he “was like, we catch him another time,” but Thompson “was like fuck that. Give me that thang and your hoodie. So I did.” Bhushan continued that they “didn’t get the job done” and “[t]hat shit didn’t post to or even shouldn’t took place. It was already bad, but he forced and pushed the issue and look how shit turned out. But that’s what happened. I didn’t freeze up. Shit just wasn’t right.”

In a police interview in January 2014, Thompson said he was in the car with Bhushan and Jones but did not know what their intentions were in going to the Village. He said he did not get out of the car at the Village; he sat in the car “going through” his phone. He had no explanation for why he moved into the driver seat when the others were out of the car. When the others returned, Thompson drove, but he did not remember pulling over again.

Appellants were each charged with one count of murder (Pen. Code, § 187, subd. (a))[6] and one count of premeditated attempted murder (§§ 187, subd. (a), 664, subd. (a)). The amended information alleged that Bhushan was armed with a firearm (§ 12022, subd. (a)(1)) and that Jones and Thompson each personally and intentionally discharged a firearm, causing great bodily injury and death (§§ 12022.7, subd. (a), 12022.53, subd. (b)-(d), (g), 12022.5, subd. (a)).[7] Jones was additionally charged with one count of unlawful firearm activity (§ 29820, subd. (b)).[8] The amended information alleged a “first prior conviction” as to Jones, a 2012 conviction of second degree robbery (§ 211), as a result of which it was alleged that Jones must be sentenced pursuant to sections 1170.12, subdivision (c)(1), and 667, subdivision (e)(1).

Thompson’s case was severed prior to trial. He was found guilty of first degree murder and premeditated attempted murder, but the firearm use allegations were found not true. Bhushan was found guilty of first degree murder and premeditated attempted murder, and the firearm arming allegation was found true. Jones was found guilty of first degree murder, premeditated attempted murder and unlawful firearm activity, and the firearm use allegations were found true.

Thompson was sentenced to a prison term of 32 years to life, consisting of 25 years to life for the murder plus a consecutive middle term of seven years to life for the attempted murder. Bhushan received a sentence of 34 years to life: 25 years to life for the murder plus one year for the firearm enhancement, and a consecutive seven years to life for the attempted murder plus one year for the enhancement. Jones was sentenced to a total of 114 years to life: 25 years to life for the murder, doubled due to his prior strike, plus consecutive terms of 20 years for the section 12022.53, subdivision (c), enhancement and five years for the section 667, subdivision (a), enhancement; a consecutive seven years to life for the attempted murder, doubled due to the prior strike, plus 20 years for the section 12022.53, subdivision (c), enhancement, plus five years for the section 667, subdivision (a), enhancement; and a concurrent middle term of two years, doubled due to the prior strike, for the unlawful firearm activity.

DISCUSSION

I.

Appellants all argue the jury instructions allowed them to be convicted of first degree murder in violation of People v. Chiu (2014) 59 Cal.4th 155, 158 (Chiu), which held that an aider and abettor may not be found guilty of first degree murder on a theory of natural and probable consequences, and People v. Rivera (2015) 234 Cal.App.4th 1350 (Rivera), which applied Chiu’s reasoning to liability for first degree murder based on the natural and probable consequences of a conspiracy.

“There are two distinct forms of culpability for aiders and abettors.” (Chiu, supra, 59 Cal.4th at p. 158.) Under the first, “[a]n aider and abettor is one who acts ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ ” (Id. at p. 161, quoting People v. Beeman (1984) 35 Cal.3d 547, 560.) Under the second theory, “ ‘ “[a] person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime. ” ’ ” (Chiu, at p. 161, quoting People v. Medina (2009) 46 Cal.4th 913, 920.) “A nontarget offense is a ‘ “natural and probable consequence” ’ of the target offense if, judged objectively, the additional offense was reasonably foreseeable that is, if “ ‘ “a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.” ’ ” (Chiu, at pp. 161-162.)

In Chiu, the California Supreme Court held that an aider and abettor may be convicted of first degree premeditated murder only “based on direct aiding and abetting principles.” (Chiu, supra, 59 Cal.4th at pp. 158-159.) Under direct aiding and abetting principles, one who “knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent” and thereby acting “with the mens rea required for first degree murder.” (Id. at p. 167.) Under the natural and probable consequences doctrine, “ ‘ecause the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime.’ ” (Id. at p. 164, quoting People Canizalez (2011) 197 Cal.App.4th 832, 852.) The natural and probable consequences doctrine is based upon a public policy of deterring “aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing.” (Chiu, at p. 165.) First degree premeditated murder, however, requires a mental state—not only intent to kill but also deliberation and careful weighing of the considerations for and against killing—that is “uniquely subjective and personal,” and the harm resulting from a nontarget murder is the same regardless of whether the perpetrator acted with premeditation and deliberation. (Id. at p. 166.) Accordingly, Chiu held that “the connection between the defendant’s culpability and the perpetrator’s premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and the above stated public policy concern of deterrence.” (Ibid.) “[P]unishment for second degree murder is commensurate with a defendant’s culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine.” (Ibid.)

[b]II.

Bhushan next contends the jury’s verdicts were unsupported because the evidence established that he withdrew as a conspirator. Bhushan maintains that although he participated in the agreement to murder Bordley and overt acts of driving to the Village and walking through it with Jones to confirm Bordley was there, he then indicated to Jones and Thompson that he was rejecting the conspiracy. As evidence of his withdrawal, Bhushan points to his giving his gun and hoodie to Thompson and to his letter to Thompkins about the conversation between Thompson and Standberry after the shooting.

We cannot accept Bhushan’s apparent premise that the evidence established his withdrawal from the conspiracy as a matter of law. Our task as a reviewing court is to determine whether, reviewing the record “in the light most favorable to the judgment,” there is “ ‘ “substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ ” (People v. Tully (2012) 54 Cal.4th 952, 1006.) The jury was properly instructed that Bhushan could not be found guilty of conspiracy to commit murder if he withdrew from the conspiracy before the shooting, and that it was the prosecution’s burden to prove he did not do so. (CALCRIM No. 420.)[15] If there is substantial evidence to support a conclusion that Bhushan did not withdraw from the conspiracy, we cannot say the jury was compelled to find he withdrew.

There is ample evidence to support a conclusion that Bhushan did not withdraw from the conspiracy. The picture that emerges from Ruth’s testimony, the surveillance video and Bhushan’s own letter is that after walking through the Village, Bhushan returned to the car and changed places with the driver before his two companions got out and shot at the group in the Village. Whether Bhushan “froze” and could not complete the shooting on the initial foray or believed it was not the right time for the planned murder, the evidence that Bhushan chose not to shoot and communicated this to his companions does not necessarily establish that he withdrew from the conspiracy. To the contrary, the evidence that he gave his gun and hoodie to Thompson knowing that Thompson intended to complete the planned murder strongly supports a conclusion that Bhushan remained a part of the conspiracy but simply changed his mind about his own personal role. Indeed, Bhushan’s letter to Thompkins protests the suggestion that he “froze” and failed to complete the object of the conspiracy, explaining that he never “stood down,” only told his companions after seeing Bordley was with young women and children that they should “catch him another time.” That Bhushan did not think the time and circumstances right at that particular moment in no way compels a conclusion that he decided to abandon the agreement to murder Bordley.

Bhushan also argues that the trial court erred in failing to instruct, sua sponte, that if he withdrew from the conspiracy before the murder was committed, he could not be found liable for first degree murder as an accomplice because he would no longer have the requisite intent to kill. Since it takes more to withdraw as an aider and abettor—in addition to communicating that he is no longer participating, the defendant must “do everything reasonably within his or her power to prevent the crime from being committed” (CALCRIM No. 401) the jury could have found that Bhushan withdrew from the conspiracy but did not withdraw as aider and abettor. Bhushan theorizes that if the jury found he withdrew from the conspiracy but did not do everything in his power to prevent the murder, it might have “overlooked the fact that [he] would no longer have the intent to kill if he withdrew from the conspiracy” and concluded he was liable as an aider and abettor. This result, Bhushan maintains, would be impermissible because intent to kill is required for liability as an aider and abettor. (Chiu, supra, 59 Cal.4th at pp. 166-167; People v. McCoy (2001) 25 Cal.4th 1111, 1118.)

In hypothesizing that the jury may have “overlooked” the intent requirement for aiding and abetting liability, Bhushan appears to assume the jury would not have adhered to its instruction that in order to prove a defendant guilty of first degree murder, the prosecution was required to prove the defendant “acted willfully, deliberately, and with premeditation,” and that “[t]he defendant acted willfully if he intended to kill.” We presume the jury understood and followed this instruction. (People v. Sanchez, supra, 26 Cal.4th at p. 852.)

III.

Thompson contends the trial court erred in failing to instruct on the lesser included offense of manslaughter as a natural and probable consequence of aiding and abetting an intended assault. Relying upon the principle that “in determining aider and abettor liability for crimes of the perpetrator beyond the act originally contemplated, the jury must be permitted to consider uncharged, necessarily included offenses where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence” (People v. Woods (1992) 8 Cal.App.4th 1570, 1588), he argues that if the jury believed he intended only to aid and abet an assault, it could have found him guilty of manslaughter as a natural and probable consequence of the assault he aided and abetted.

As we have said, the theory that Thompson intended to aid and abet an assault was never suggested at trial; appellate counsel’s characterization of it as a “central defense” is completely belied by the record. The sole basis of the argument is the asserted ambiguity of the statement Ruth described Bhushan making about the group’s intention (“we about to go over there and get on this nigga”). The premise of Thompson’s argument is that this evidence was sufficient to trigger the court’s sua sponte duty to instruct on lesser included offenses.[16] It was not.

To be sure, the quoted statement of intent did not expressly refer to an intent to kill, and in the abstract, an intent to “get on” a person might be taken as referring to an intent to assault. But in the context of the evidence as a whole, the meaning Thompson now attempts to ascribe to the statement is entirely unreasonable, and there is no evidence Thompson actually understood it that way. The evidence demonstrated a plan to kill Bordley in retaliation for the killing of Askari, and Thompson’s only defense was that he was not part of that plan. It is true, as Thompson asserts, that defense counsel relied upon Ruth’s testimony to support his theory of the case, but that theory was simply that Thompson was not involved in a conspiracy to kill Bordley. At the record citation supporting Thompson’s assertion, defense counsel discussed Ruth’s testimony that she did not directly discuss killing Bordley with Thompson; counsel did not suggest that Thompson could have understood the described statement of intent to “get on” Bordley as reflecting intent to assault rather than kill. Ruth also testified that the day after the shooting, Thompson said that he had had to “take matters into his own hands” because Bhushan had “frozen.” On this record, no reasonable juror could have concluded that Thompson did not intend to assist in a plan to kill Bordley but did intend to assist in a plan to assault him.[17]

IV.

Jones argues that the trial court erred in denying as untimely motions he made at the time of sentencing for substitution of counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and for a new trial. As we will explain, the trial court did not make any ruling regarding a Marsden motion, and the record does not support Jones’s assertion that he made one. The trial court denied a motion for continuance to consult with new counsel about filing a new trial motion, a “request for motion for new trial” and, to the extent it was requested, a Faretta motion for self-representation. Its rulings were not an abuse of discretion.

At the outset of the sentencing hearing on July 10, 2015, Jones’s counsel told the court that Jones had asked him to request a continuance because Jones was consulting with another attorney in hopes of bringing a motion for a new trial. The court responded, “Motion to continue is denied. It’s untimely.” The court proceeded with the sentencing hearing and, after announcing Bhushan’s sentence, asked Jones if he needed to say something. Jones replied, “I was going to ask since you denied my Marsden motion and then denied me for a continuance so I can find new counsel for motion for new trial, that I would like to raise my 14 amendment right to represent myself for new trial.” The court told Jones, “You’ll get to do all that on appeal. I’m not doing nothing with that today because that’s not before me.” Asked if he had anything further to say about sentencing, Jones said, “No, but I know it’s my right to a motion for a new trial any time put in before a judgment, and I’m asking the court to grant me that right to represent myself.” The court made a finding that the “request for motion for a new trial” was untimely and, to the extent Jones was asking to represent himself, that request was also untimely. The court then announced Jones’s sentence.

Marsden established that a defendant must be given an opportunity to state reasons when he or she moves to substitute one appointed counsel for another. (People v. Ortiz (1990) 51 Cal.3d 975, 989, fn. 1.) In order to prevail on a Marsden motion, the defendant “must make a sufficient showing that denial of substitution would substantially impair his constitutional right to the assistance of counsel (People v. Smith (1985) 38 Cal.3d 945, 956), whether because of his attorney’s incompetence or lack of diligence [citations], or because of an irreconcilable conflict [citations].” (Ortiz, at p. 989, fn. 1.)[18]

Here, defense counsel told the court that Jones wanted a continuance because he was consulting with another attorney in hopes of bringing a motion for a new trial. This was a request to substitute retained counsel, to which different standards apply. (People v. Courts (1985) 37 Cal.3d 784, 795, fn. 9.) As neither defense counsel nor Jones indicated to the court that the request was based on ineffective representation by appointed counsel, Marsden was not applicable. (People v. Molina (1977) 74 Cal.App.3d 544, 549-550.) Although “ ‘ “no formal motion is necessary” ’ ” to trigger the trial court’s obligations under Marsden, “ ‘ “there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ ” ’ ” (People v. Dickey (2005) 35 Cal.4th 884, 920, quoting People v. Mendoza (2000) 24 Cal.4th 130, 157.)

Jones’s argument on appeal is that the trial court knew he intended to make a Marsden motion at the sentencing hearing because the probation report related his having stated this intention.[19] But the probation report related statements Jones made in an interview four months before the sentencing hearing. The fact that he had stated this intention four months prior to the hearing did not require the court to assume that Jones was in fact making a Marsden motion when it was informed at the hearing that he wanted a continuance to obtain new counsel for purposes of making a new trial motion and given no indication that Jones currently believed his appointed attorney was providing constitutionally ineffective representation.[20]

The granting of a continuance for purposes of obtaining new counsel is within the discretion of the trial court. (People v. Courts, supra, 37 Cal.3d at p. 790.) “A continuance may be denied if the accused is ‘unjustifiably dilatory’ in obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the time of trial.’ ” (Id. at pp. 790-791, quoting People v. Byoune (1966) 65 Cal.2d 345, 346–347.) Here, the probation report reflects that four months before the sentencing hearing, Jones wanted new counsel because he believed he had not received a fair trial. In the intervening four months, he had neither raised his concerns with the court nor obtained new counsel. Jones did not offer any explanation of good cause for this delay in the trial court, and does not do so in his appellate briefs. (§ 1050, subd. (e) [“continuances shall be granted only upon a showing of good cause”].) The trial court did not abuse its discretion in denying the continuance sought at the sentencing hearing. (People v. Alexander (2010) 49 Cal.4th 846, 935.)

The trial court’s finding that Jones’s motion for a new trial was untimely is more problematic. A motion for new trial may be made orally (People v. Simon (1989) 208 Cal.App.3d 841, 847) and must be “made and determined before judgment . . . .” (§ 1182.) Accordingly, an oral motion for new trial made at the sentencing hearing is not untimely. (See People v. Braxton (2004) 34 Cal.4th 798, 808-809 (Braxton).)

Respondent argues that Jones did not actually make a motion for new trial but only sought a continuance in order to do so. The record demonstrates that Jones tried to make the motion. Jones asked the court, “I was going to ask since you denied my Marsden motion and then denied me for a continuance so I can find new counsel for motion for new trial, that I would like to raise my 14 amendment right to represent myself for motion for new trial. [¶] . . . [¶] I know it’s my right to a motion for a new trial any time put in before a judgment, and I’m asking the court to grant me that right to represent myself.” Jones’s remarks suggest that he was prepared to make an oral new trial motion right away; although he did not say so expressly, he had just acknowledged the court having denied his request for a continuance and referred to his right to make a motion for new trial before judgment.

But Jones’s argument misses a step: Without the court first granting his request to represent himself, Jones could not personally present a new trial motion. “ ‘[A] party who is represented by counsel has no right to be heard personally’ ” (People v. Harrison (2001) 92 Cal.App.4th 780, 788, quoting In re Cathey (1961) 55 Cal.2d 679, 684); except with respect to matters related to representation, such as a Marsden motion, all motions must be made by counsel. (People v. Clark (1992) 3 Cal.4th 41, 173.) Jones does not argue on this appeal that the trial court abused its discretion in denying his motion for self-representation. (Faretta v. California (1975) 422 U.S. 806, 807.) An issue not raised may be treated as forfeited. (Cahill v. San Dego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956; Cal. Rules of Court, rules 8.360(a), 8.204(a)(1)(B).)

In any event, the trial court had discretion to deny Jones’s Faretta motion as untimely. “ ‘When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court's discretion.’ ” (People v. Bradford [(1997)] 15 Cal.4th [1229,] 1365.) In exercising this discretion, the trial court should consider factors such as ‘ “the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” ’ (People v. Burton (1989) 48 Cal.3d 843, 853, quoting People v. Windham (1977) 19 Cal.3d 121, 128.)” (People v. Jenkins (2000) 22 Cal.4th 900, 959.) Although the trial court did not explicitly inquire into and address these factors, we may uphold its denial of Jones’s motion if it is supported by the record. (People v. Perez (1992) 4 Cal.App.4th 893, 904–905.)

Although a Faretta motion made after conviction does not threaten the disruption of such a motion made on the eve of or during trial, it still must be made within a reasonable time before the relevant post-verdict hearing. (People v. Miller (2007) 153 Cal.App.4th 1015, 1024 [request for self-representation at sentencing must be made “within a reasonable time prior to commencement of the sentencing hearing”].) Jones’s motion was made on the day of sentencing, the last possible moment at which he could timely raise a new trial motion. (§ 1182 [motion for new trial “must be made and determined before judgment”].) Jones’s request to represent himself was an alternative to his preferred course of a continuance to obtain alternate counsel to file a new trial motion. As reflected in the probation report, Jones knew four months before trial that his appointed counsel was not going to move for a new trial on his behalf. He offered no explanation to the trial court why he waited four months to request permission to represent himself in making the motion, and offers none here, and he did not assert ineffectiveness of counsel. We find no abuse of discretion.

V.

Jones was 17 years old when these crimes were committed. He was charged in adult criminal court in accordance with then-existing provisions of Welfare and Institutions Code section 707, subdivision (d)(1), that allowed a minor 16 years of age or older who was accused of specified offenses including murder and attempted murder to be so charged. In 2016, California voters adopted Proposition 57, which eliminated the prosecutor’s authority to directly file charges in criminal court against individuals under age 18, instead requiring such charges to be filed in juvenile court. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303.) Pursuant to the new law, a juvenile may be tried and sentenced as an adult only if the juvenile court transfers the matter to adult court after a hearing at which it considers specified factors including the minor’s maturity, degree of criminal sophistication, and prior delinquent history, the success of previous juvenile court attempts at rehabilitation, whether the minor can be rehabilitated prior to expiration of the juvenile court’s jurisdiction, and the circumstances and gravity of the alleged offense. (§ 707, subd. (a)(2); Lara, at p. 305.)

Lara held that this change in law applies retroactively to all juveniles charged directly in adult court whose judgments were not final at the time Proposition 57 was enacted.[21] (Lara, supra, 4 Cal.5th at p. 305.) It therefore applies to Jones, whose appeal was pending when the change of law went into effect. (People v. Barboza (2018) 21 Cal.App.5th 1315, 1319 [for purposes of Estrada rule, judgment not final as long as courts may provide remedy on direct review].) Although Lara involved a juvenile who had been charged but not yet tried, the Supreme Court endorsed a remedy for cases in which, like Jones, the juvenile has already been tried and sentenced in adult court. (Lara, at p. 310.) That remedy is appropriate here. Accordingly, we will conditionally reverse the judgment and remand the matter to the juvenile court with directions to conduct a transfer hearing to determine Jones’s fitness for treatment within the juvenile justice system. If the juvenile court determines it would have transferred the case to adult court if the prosecutor had originally filed a juvenile petition in juvenile court and then moved to transfer the matter to adult court, this case shall be transferred to adult court, Jones’s convictions shall be reinstated, and the court shall reconsider Jones’s sentence in accordance with the views expressed and directions supplied in this opinion. If the juvenile court finds it would not have transferred Jones to adult court, Jones’s convictions shall be deemed juvenile adjudications and the juvenile court shall hold a dispositional hearing.

VI.

Jones raises a number of contentions bearing on his sentence: that the section 667, subdivision (a), enhancements must be stricken because they were not alleged in the information and because they were based on a juvenile adjudication, which is not a “conviction” within the meaning of the enhancement statute; that he should not have been sentenced under the three strikes law because there was insufficient evidence of the prior juvenile adjudication of robbery and because he had no right to jury trial in the juvenile proceeding; that the case must be remanded to permit the trial court to exercise its discretion to strike the section 12022.53 firearm enhancements; that defense counsel rendered ineffective assistance of counsel in failing to object to the sentence of 114 years to life as cruel and unusual punishment; and that the trial court must be directed to calculate his parole eligibility date.

A.

Respondent concedes that a section 667, subdivision (a), enhancement may not be imposed on the basis of a juvenile adjudication. (People v. West (1984) 154 Cal.App.3d 100, 108-110.) This concession, which we accept, requires that the two five-year enhancements imposed pursuant to section 667, subdivision (a), be stricken. Accordingly, Jones’s contention that the enhancements must be stricken for lack of notice in the information is moot.

Respondent maintains, however, that the prior juvenile adjudication was proven and properly used pursuant to the “Three Strikes” law. The amended information alleged as a “first prior conviction” that Jones was convicted of second degree robbery (§ 211) on or about September 25, 2012. It then alleged as a “2 strikes (one prior) juvenile finding” that Jones, “having suffered the above prior adjudication,” had to be sentenced pursuant to sections 1170.12, subdivision (c)(1), and 667, subdivision (e)(1), and that “the above felony conviction” was for a “violent felony within the meaning of Penal Code section 667.5(c) and a serious felony within the meaning of Penal Code section 1192.7(c).”

Jones argues the prior juvenile adjudication could not be relied upon to sentence him under the three strikes law because it was not proven in the trial court. He maintains that he admitted the alleged prior only in order to sanitize it with regard to the charge of unlawful firearm activity alleged in count 3, so that the jury would not learn the nature of the prior offense which resulted in a prohibition against gun ownership for purposes the charged offense. (People v. Valentine (1986) 42 Cal.3d 170, 173 [nature of prior conviction withheld from jury where defendant admits ex-felon status].)

“In considering whether there is sufficient evidence to support findings of prior convictions, courts look to evidence that the defendant unequivocally expressed his intent to plead guilty in open court.” (People v. Jones (1995) 37 Cal.App.4th 1312, 1316 [insufficient evidence where waiver forms indicated only that defendant intended to enter plea in future].) Jones apparently takes this to mean that his intent to admit the prior for purposes of sentencing must be established separately from his intent to admit it for a different purpose.

Before Jones admitted the prior robbery adjudication, the court informed him that with respect to the charge in count 3, the prosecution was required to prove not only that he possessed a gun at the time of the present offenses but also that he had previously suffered a juvenile adjudication making it unlawful for him to possess a gun; that he had a right to trial, including the right to confront and cross-examine witnesses, the right against self-incrimination and the right to present evidence; that requiring the prosecution to prove the prior would allow the jury to know the prior was for robbery; and that if he admitted the prior, the jury would not be informed of the nature of the prior. Jones stated that he understood each point, and the court accepted his admission. There was no mention of use of the admitted prior for sentencing purposes. The record thus reflects that Jones was advised of the constitutional rights he was waiving and consequences of the admission with respect to the jury instructions on count 3; presumably because of the context in which he admitted the prior, the court did not advise him of the consequences of the admission for sentencing purposes.

“ ‘[A]dvisement of the penal consequences of admitting a prior conviction is not constitutionally mandated. Rather, it is a judicially declared rule of criminal procedure. [Citations.] Consequently, when the only error is a failure to advise of the penal consequences, the error is waived if not raised at or before sentencing.’ ” (People v. Jones (2009) 178 Cal.App.4th 853, 858, quoting People v. Wrice (1995) 38 Cal.App.4th 767, 770–771.) Thus, in Jones, the defendant’s failure to object forfeited his claim that when he admitted a prior arson conviction, the trial court failed to advise him of consequences of his admission including an increased sentence on the currently charged count of arson pursuant to section 451.1, a doubled base term under the three strikes law and an additional five-year term for a prior serious felony conviction. (Jones, at p. 957.)

As Jones acknowledges, his attorney did not object to sentencing based on the admitted prior adjudication. He argues, however, that unlike Jones, the present case does not involve a mere failure to “advise of the penal consequences” based on an otherwise unequivocal and unlimited admission of a prior conviction. (People v. Jones, supra, 178 Cal.App.4th at p. 858.) He notes that Jones, did not involve an admission entered for purposes of sanitizing the current charge, and urges that his admission of the prior robbery adjudication was not “unequivocal” or “unlimited” because it was entered only for purposes of sanitizing an element of the gun use charge in count 3.

Jones does not explain why the fact that he admitted the prior for a particular purpose should alter the consequence of his failure to object at sentencing. Jones clearly had notice from the information that the prior robbery was alleged as the basis for three strikes sentencing, and a defendant’s motive for admitting a prior conviction does not determine the sufficiency of the admission. (See People v. Thomas (1986) 41 Cal.3d 837, 844–845 [admission of prior as part of plea bargain not more effective to prove contested allegation than admission for other motive, “such as keeping the convictions from the ken of the jury”].) “[W]hen the sufficiency of an admission of a prior conviction is called into question, the only issue is whether the admission was voluntary, made by a defendant who has been informed of his constitutional rights and of the consequences of the admission.” (Thomas, at p. 844.) Had defense counsel objected to the trial court’s reliance upon Jones’s admission of the prior adjudication at sentencing, the trial court would have been able to elicit another admission for this purpose or put the prosecution to its proof.[22]

Jones further contends that imposition of a second-strike sentence on the basis of a prior juvenile adjudication violated his constitutional right to a jury trial because he had no right to a jury trial in the prior proceeding. He acknowledges that this argument was rejected in People Nguyen (2009) 46 Cal.4th 1007, 1010, but urges that subsequent authority[23] has eroded the basis of the Nguyen decision. We are bound by the decision of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)[24]

B.

Jones’s sentence included two 20-year terms for the section 12022.53 firearm enhancements found true in connection with counts one and two. Prior to January 1, 2018, section 12022.53 prohibited trial courts from striking allegations or findings bringing a defendant within the provisions of the statute. (Former § 12022.53, subd. (h).) Effective January 1, 2018, section 12022.53 was amended to permit a trial court “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.” (§ 12022.53, subd. (h); Stats. 2017, ch. 682 § 2.)

The parties agree that the amendment applies retroactively to cases not final when the amended law became effective, and we concur. (Estrada, supra, 63 Cal.2d 740; People v. Francis, supra, 71 Cal.2d at p. 75.) By analogy to cases in which a trial court believed it did not have discretion to strike a three strikes prior conviction, reconsideration is required “ ‘unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations.’ ” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425; People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082.)

Respondent maintains that no purpose would be served by remanding in this case because the trial court’s remarks at sentencing demonstrate it is “unlikely” the court would exercise its discretion to strike or dismiss the firearm enhancements. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [no purpose to remand for exercise of discretion to strike prior conviction].) The trial court commented upon Jones’s “extended juvenile history”—which began at age 12, included several robberies (two of which involved firearms), vehicle theft and narcotics possession—and another murder charge that was then pending, observing that “[t]aking a life is nothing to you because it looks like that’s all—that’s easy for you to do” and, unlike his codefendants, whose sentences might permit them “an opportunity sometime in their life,” Jones would spend his life in prison.[25]

Jones’s juvenile record was extensive, and the trial court certainly expressed its view that Jones’s past conduct was intolerable. It is not clear, however, that its remarks about Jones spending the rest of his life in prison reflected an intention to achieve this result rather than an observation about an inescapable reality. Moreover, the court’s remarks emphasized Jones’s involvement in another murder which, according to Jones’s representation, did not in fact result in charges against him. Additionally, as we will explain, independent of the change in law regarding the court’s discretion regarding the section 12022.53 enhancements, the trial court will have to reconsider Jones’s sentence because it was imposed without consideration of the constitutional implications of Jones’s youth. The 40 years attributable to these two enhancements, which at the time the court had no reason to question, comprised a significant portion of Jones’s sentence and the discretion the court now has over this aspect of the sentence may be relevant if the court determines that adjustment of the overall sentence is appropriate.

C.

Jones argues that he received ineffective assistance of counsel due to his attorney’s failure to challenge his sentence as unconstitutional cruel and unusual punishment.

The sentence of 114 years to life in prison is the functional equivalent of a sentence of life without parole. (People v. Caballero (2012) 55 Cal.4th 262, 267.) Miller v. Alabama (2012) 567 U.S. 460, 463 (Miller) held that a mandatory sentence of life without parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition against cruel and unusual punishment. (Montgomery v. Louisiana (2016) ___ U.S. ___ [136 S.Ct. 718, 726].) Miller explained that “children are constitutionally different from adults for purposes of sentencing” because, due to their “diminished culpability and greater prospects for reform, . . . ‘they are less deserving of the most severe punishments.’ ” (Miller, at p. 471, quoting Graham v. Florida (2010) 560 U.S. 48, 68 (Graham) [sentence of life without parole for juvenile non-homicide offender violates Eighth Amendment].)

“Although Miller did not foreclose a sentencer’s ability to impose life without parole on a juvenile, the Court explained that a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘ “irreparable corruption.” ’ ” (Montgomery v. Louisiana, supra, 136 S.Ct. at p. 726, quoting Miller, supra, 567 U.S. at p. 477.) The Miller court “requires sentencers in homicide cases ‘to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’ ” (People v. Caballero, supra, 55 Cal.4th at p. 268, fn. 4.) As Miller summarized its analysis: “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. See, e.g., Graham [, supra,] 560 U.S. [at page] 78 (‘[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings’); J.D.B. v. North Carolina [(2011)] 564 U.S. 261, 269, (discussing children’s responses to interrogation). And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.” (Miller, at p. 477.)

The prohibition against a life-without-parole sentence for a juvenile extends to a “term-of-years sentence that amounts to the functional equivalent of a life without parole sentence.” (People v. Caballero, supra, 55 Cal.4th at p. 267 [sentence to term of years with parole eligibility date outside natural life expectancy unconstitutional for juvenile nonhomicide offense]; People v. Franklin (2016) 63 Cal.4th 261, 276 [same for homicide offense].) For many offenders, a claim that a sentence is unconstitutional as a functional term of life without parole is moot due to the enactment of section 3051, which requires a “youth offender parole hearing” during the 25th year of the sentence of an individual sentenced to a term of 25 years to life or more for an offense committed when he or she was 25 years of age or younger.[26] (Franklin, at p. 280; § 3051, subd. (b)(3), (b)(4).) Jones is not eligible for the protection of this statute, however, due to his prior robbery strike. (§ 3051, subd. (h).)

Jones argues ineffective assistance of counsel in recognition of the fact that the failure to challenge the sentence as constitutionally excessive in the trial court forfeited such a challenge on appeal. (People v. Speight (2014) 227 Cal.App.4th 1229, 1247; People v. Johnson (2013) 221 Cal.App.4th 623, 636.) Respondent maintains that Jones cannot make the required showing of representation falling below an “objective standard of reasonableness” “under prevailing professional norms” and “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)

Reviewing courts defer to counsel’s reasonable tactical decisions (People v. Mai (2013) 57 Cal.4th 986, 1009), and ineffective representation will not be found where counsel fails to make motions or objections he or she reasonably determines will be futile. (People v. Price (1991) 1 Cal.4th 324, 387.) Jones’s sentence, respondent asserts, was not so disproportionate to the crime as to “shock the conscience,” the test for excessive punishment under the California Constitution, and was not “ ‘grossly out of proportion to the severity of the crime’ ” so as to constitute and Eighth Amendment violation. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1230.) Respondent maintains that any objection to Jones’s sentence would have been futile because the trial court was aware of Jones’s age and background and, as we have noted, specifically discussed his extensive juvenile record and apparent disregard for human life.

Respondent ignores the role of youth in criminal conduct emphasized in Miller, Caballero and related cases. Jones conduct in the present case was horrific and his juvenile record was highly disturbing. Yet, as described in the probation report, he was not without some degree of promise. While living with his grandmother, father and siblings in Las Vegas after successfully completing 13 months of treatment, he had joined the high school football and basketball teams, graduated and made plans to go to college in the fall, having been offered an academic scholarship and provisionally admitted to a private college in Washington state. While living with his aunt in Emeryville for the summer, however, he got “ ‘sidetracked with old friends’ and ‘got into trouble for robbery’ ” and was sent to his third group placement. He completed a semester of courses at Merritt College during that placement.

The trial court’s comments at sentencing expressed appropriate outrage over Jones’s violence and readiness to take another’s life. Still, Jones was 17 years old, and neither the probation report nor defense counsel raised with the court the constitutional issues implicated by his youth. The court itself, while clearly aware of Jones’s age, gave no indication it had considered the “distinctive attributes of youth” that “diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes”—the “immaturity, recklessness, and impetuosity” that “render juveniles less culpable than adults.” (Miller, supra, 567 U.S. at p. 472.) While it may be more difficult to think of Jones as a “child” than the 14-year-old minors in Miller (see, id. at p. 480, fn. 8), our Legislature has expressly acknowledged that the areas of the brain responsible for controlling functions like judgment, decision-making and impulse control do not develop until the early-to-mid 20s; for this reason, the statute requiring youth offender parole hearings for life prisoners who committed their crimes before age 18 has been expanded to extend protection to those whose crimes were committed before age 25. (Stats. 2017, ch. 675, §§ 1, 2.)[27] The court’s reasoning in Miller and the cases it built upon compels the conclusion that even older minors like Jones must at least be given the benefit of consideration of youth related factors before imposition of a sentence that amounts to life without parole—particularly those for whom section 3051 will not provide protection. “Life without parole ‘forswears altogether the rehabilitative ideal” and “reflects ‘an irrevocable judgment about [an offender’s] value and place in society,’ at odds with a child’s capacity for change.’ ” (Miller, at p. 473, quoting Graham, supra, 560 U.S. at p. 74.) The trial court here was not required to impose a shorter sentence, and Jones unquestionably deserved severe punishment. Still, Miller and other cases recognizing the difficulty of distinguishing between “ ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption’ ” (Id. at pp. 479-480, quoting Roper v. Simmons (2005) 543 U.S. 551, 573 and Graham, at p. 68) require that a decision to sentence a minor to an actual or functional term of life without parole do so only after consideration of the characteristic attributes of youth.

“[A] defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent. [Citations.]” (People v. Speight, supra, 227 Cal.App.4th at p. 1248, quoting People v. Scott (1994) 9 Cal.4th 331, 351.) Miller and Caballero, which provided the foundation for a constitutional challenge to the sentence, were both decided roughly three years before Jones’s trial, and we can imagine no tactical reason for failing to make this challenge. Nor can we accept that counsel could have reasonably determined it would be futile to do. Counsel may reasonably have expected the court to be as outraged as it in fact was at Jones’s conduct, but the necessary challenge would only have asked the court to consider whether a sentence of 114 years to life—foreclosing any opportunity for release regardless of Jones’s potential for change—was proportionate to the crimes committed by this 17-year-old. It was, after all, the court’s constitutional obligation to consider the youth related factors. The stakes for Jones could not have been higher. In these circumstances, it was not reasonable to forego the argument in the expectation that it would be futile.

The remaining question is whether there is a reasonable probability the result would have been different if counsel had challenged the sentence as unconstitutional. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) Considering solely the circumstances as they existed at the time of sentencing, we might not find such a probability. As we have said, the court was aware of Jones’s age and troubled upbringing, but viewed his conduct as intolerable. At the time of sentencing, because the court was obligated to impose two 20-year sentences on the section 12022.53 enhancements, its most obvious option for reducing Jones’s sentence would have been to strike his prior robbery adjudication pursuant to section 1385, a course that likely would have been unpalatable to the trial court, for whom Jones’s recidivist criminality was clearly a major concern.

Since sentencing, however, at least two significant factors have changed. The court now has discretion to strike one or both of the section 12022.53 enhancements if it chooses to do so. And, if Jones’s representation is accurate, the murder charges that were pending at the time of sentencing were subsequently dismissed. That murder charge weighed heavily in the court’s remarks at sentencing. The record does not provide us with any information as to the circumstances underlying the charge or its dismissal. If those circumstances indicate Jones’s lack of responsibility for the death in question, that change could well be significant to the trial court.

This leaves us in a peculiar situation. In light of the postsentencing changes, it would be entirely unfair not to remand this case for reconsideration of the sentence. Were it not for these postsentencing changes, however, it is entirely possible we would not find ineffective assistance of counsel for lack of prejudice resulting from counsel’s forfeiture of the issue. We are required to notify the State Bar “[w]henever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney.” (Bus. & Prof. Code, § 6086.7.) To do so where the prejudice resulting from counsel’s conduct could not have been foreseen at the time seems inappropriate.

Accordingly, although counsel’s failure to challenge the sentence in the trial court technically forfeited the issue for appeal, we will exercise our inherent authority to decide the question whether the sentence of 114 years to life violates the Eighth Amendment. We do so as an accommodation of the competing issues of fairness to Jones in having his sentence reconsidered under proper standards, and fairness to counsel in avoiding the need to notify the State Bar of conduct that, but for the unique circumstances here, would not require notification. As indicated above, we conclude that a sentence amounting to the functional equivalent of life without parole may be imposed upon Jones only after consideration of “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” and whether Jones is “ ‘the rare juvenile offender whose crime reflects irreparable corruption.’ ” (Miller, supra, 567 U.S. at pp. 479-480.) Remand is required.

D.

In People v. Contreras (2018) 4 Cal.5th 349, the California Supreme Court held that sentences of 50 years to life and 58 years to life imposed on 16-year-olds convicted of kidnapping and sexual offenses violated the Eighth Amendment. Although the sentences did not amount to the functional equivalent of life without parole, Contreras held that they would not allow the offenders “ ‘the realistic chance for release contemplated by Graham’ ” and, therefore, violated the same constitutional principles that bar sentences of life without parole for juveniles who commit nonhomicide offenses. (Contreras, at p. 368.) The constitutional problem would not be avoided through section 3051’s requirement for youth offender parole hearings because these offenders were sentenced under section 667.61, rendering section 3051 inapplicable. (§ 3051, subd. (h).) In remanding for resentencing, Contreras directed the trial court to “impose a time by which defendants may seek parole.” (Contreras, at p. 383.)

Jones seeks the same relief here, as he is excluded from relief under section 3051 due to his prior robbery adjudication. Unlike the offenders in Contreras, however, Jones was convicted of a homicide. A sentence of life without parole, therefore, was not categorically forbidden under Graham but permissible if Jones was determined to be “ ‘the rare juvenile whose crime reflects irreparable corruption.’ ” (Miller, supra, 567 U.S. at pp. 479-480.) Contreras does not apply.

DISPOSITION

The judgment in Bhushan’s case is affirmed.

The judgment in Thompson’s case is affirmed.

The judgment in Jones’s case is conditionally reversed and the matter remanded to the juvenile court with directions to conduct a transfer hearing to determine Jones’s fitness for treatment within the juvenile justice system.

If the juvenile court determines it would have transferred the case to adult court if the prosecutor had originally filed a juvenile petition in juvenile court and then moved to transfer the matter to adult court, this case shall be transferred to adult court, Jones’s convictions shall be reinstated and the trial court shall reconsider Jones’s sentence in accordance with the views expressed in this opinion. Specifically, the trial court shall (1) strike the enhancements imposed under subdivision (a) of section 667, (2) consider whether to exercise its discretion to strike one or both of the section 12022.53 enhancements, and (3) determine whether reduction of Jones’s sentence is warranted upon consideration of such “relevant evidence as may exist concerning factors that Miller identified as bearing on the ‘distinctive attributes of youth’ and how these attributes ‘diminish the penological justifications for imposing the harshest sentences on juvenile offenders.’ (Miller, [supra, 567 U.S.] at p. 472; see also [People v.] Gutierrez [(2014)] 58 Cal.4th [1354,] 1388-1390.)” (In re Kirchner (2017) 2 Cal.5th 1040, 1042.)

Conversely, if the juvenile court finds it would not have transferred Jones’s case to adult court, Jones’s convictions shall be deemed juvenile adjudications and the juvenile court shall hold a dispositional hearing.

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Kline, P.J.

We concur:

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Richman, J.

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Stewart, J.

People v. Bhushan et al. (A145855)