Filed 9/12/17 P. v. Perez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed and remanded with instructions.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

After remand from a prior reversal, defendant Ildefonso Perez appeals his sentence of 25 years to life for a conviction of second degree murder, attempted murder, and the imposition of a sentence enhancement. His primary argument is that his sentence is unconstitutional because he was 17 years old at the time of the crime. His opening brief, however, was filed before the California Supreme Court decided People v. Franklin (2016) 63 Cal.4th 261 (Franklin), which held that revisions to the Penal Code[1] in recent years mooted just such a constitutional challenge, and accordingly, this argument is rejected. Defendant argued in his reply brief that he was entitled to a remand, as discussed in Franklin, for the purpose of placing facts into the record that would assist him at a future parole hearing. We remand for the trial court to conduct a hearing, pursuant to Franklin, to consider whether the record is adequate for that purpose, and if not, to conduct such a hearing. Resentencing is not required.

Defendant also argues, and the Attorney General agrees, that the abstract of judgment is incorrect. We shall order the necessary correction.

I

FACTS AND PROCEDURAL HISTORY

For purposes of this appeal, we need not delve into the facts of the case. In 2013, defendant was convicted of first degree murder (§ 187), attempted murder (§§ 664, 187), and street terrorism (§ 186.22, subd. (a)). Two sentence enhancements were also found true by the jury; commission of the murder for the benefit of a street gang (§ 186.22, subd. (b)(1)), and the personal use of a deadly weapon (§ 12022, subd. (b)(1)). He was sentenced to a total term of 35 years to life.[2] (People v. Perez (June 26, 2015, G049443) [nonpub. opn.] (Perez).)

Due to a change in the law between the time of trial and the appeal, we reversed the murder conviction, giving the prosecution the choice to accept a reduction of the charge to second degree murder or retry the case. We also determined defendant’s contention that his sentence was unconstitutional, because he was 17 years old at the time, was not ripe for adjudication due to our decision to remand on other grounds. (Perez, supra, G049443.)

On remand, the prosecution accepted and the court ordered the reduction of the murder charge to second degree. Defendant was sentenced to 15 years to life on the murder charge, a consecutive term of nine years for attempted murder, and one year on the deadly weapon sentence enhancement, for a total sentence of 25 years to life.

Defendant now appeals.

II

DISCUSSION

Cruel and Unusual Punishment

In his opening brief, defendant’s primary argument was that his sentence was unconstitutional because he was a juvenile offender. As we mentioned above, however, this brief was filed before the Supreme Court decided Franklin, supra, 63 Cal.4th 261.

Franklin concluded the procedures set forth in sections 3051 and 4801, which require a parole hearing during a juvenile offender’s 25th year of incarceration, mooted any cruel and unusual punishment challenge to a 50-year-to-life sentence. (Franklin, supra, 63 Cal..4th at p. 268.) In his reply brief, defendant makes clear that he believes that Franklin was wrongly decided, but acknowledges that we are required to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we cannot consider defendant’s claim that his 25-year-to-life sentence constitutes cruel and unusual punishment.

Franklin also makes clear that juvenile offenders are entitled to make a record of mitigating evidence tied to their youth at the sentencing hearing. (Franklin, supra, 63 Cal.4th at p. 269.) These factors include a defendant’s “cognitive ability, character, and social and family background at the time of the offense.” (Ibid.) In his reply brief, defendant requests such a hearing. “It is not clear whether Franklin had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing. . . .” (Id. at p. 284.) The same is true here. While defendant need not be resentenced, “we remand the matter to the trial court for a determination of whether [defendant] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing.” (Ibid.)

“If the trial court determines that [defendant] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [Defendant] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. 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 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].” (Franklin, supra, 63 Cal.4th at p. 284.) Accordingly, we order a limited remand to determine if such a hearing is necessary, and if so, to conduct it.

Correction of Abstract of Judgment

Although on remand defendant’s conviction was reduced from first to second degree murder, the abstract of judgment reflects he was convicted of first degree murder. Defendant argues, and the Attorney General agrees, that the abstract should be corrected to reflect this. We agree and shall order a correction. (See People v. Kim (2012) 212 Cal.App.4th 117, 123-124 [“courts have inherent authority to correct clerical errors in a sentence at any time”].)

III

DISPOSITION

On remand, it is ordered that: 1) The trial court conduct a hearing, pursuant to Franklin, to determine if the record is sufficient for defendant’s future parole hearing, and if not, to conduct such a hearing; and 2) the clerk of the court shall correct the abstract of judgment to reflect that defendant was convicted of second degree, not first degree, murder and forward a certified copy to the Department of Corrections and Rehabilitation.

In all other respects, the judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.