Filed 9/4/18 P. v. Roa CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge. Affirmed with directions.

Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant Gilbert Roa.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant Josue Avilio Ortez.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

Introduction

Defendants and appellants Gilbert Roa (Roa) and Josue Avilio Ortez (Ortez), who was a minor when he committed these crimes, appeal from their convictions by separate juries. Defendants and an unidentified third male went to a park. Two of them approached a young man sitting in a vehicle and Ortez picked a fight with him. The second male joined the fight as Ortez was losing, eventually followed by the young man’s friend after he awoke from being asleep in his van. Upon finding themselves on the losing end of the fist fight Ortez had started, Ortez called on the third male, who had remained hidden, and the three males pulled out knives and stabbed the two young men. The two young men suffered serious physical and nonphysical wounds that severely affected their lives.

Roa was convicted of attempted voluntary manslaughter, with priors, and was sentenced to nine years six months. Roa’s appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. After reviewing the record for potentially arguable issues, we affirm.

Ortez was convicted of two counts each of attempted murder and assault with a deadly weapon, and one count of attempted robbery, with numerous enhancements. Ortez was sentenced to 14 years plus two terms of life with the possibility of parole. He argues two issues on appeal. First, he contends the five-year enhancement for a prior serious felony under Penal Code section 667, subdivision (a),[1] should be stricken because it was improperly based on a juvenile adjudication. The People concede this issue and we agree. Second, Ortez argues the case must be remanded for a new sentencing hearing because he did not receive a meaningful opportunity to provide mitigating evidence for a future youth offender parole hearing, as required by our Supreme Court in People v. Franklin (2016) 63 Cal.4th 261 (Franklin). We agree, and therefore issue a limited remand.

Statement of Facts

On November 3, 2013, Austin Penna and his girlfriend, Raquel Thomson, attended a football game at the high school from which they had recently graduated. Afterward, they met up with a friend, Pablo Dimas, at a skate park across the street from Pablo’s home. Raquel arrived in her car and Austin drove his van. Around 11:00 p.m. Austin went to lay down in his van because he was intoxicated. Raquel and Pablo later drove in Raquel’s car to a fast food restaurant and returned to the park with food. As the two sat in the car, around 1:00 or 1:30 a.m., Ortez and another male approached them. Ortez stood by the open passenger door and began asking Pablo questions, like where was he from and did he have anything on him. The other man stood in front of the car on the passenger side. At some point, Ortez said he was going to take Pablo’s shoes. Ortez reached into the car and hit Pablo in the chest. Pablo got out and he and Ortez began fighting. As Pablo was getting the upper hand, the other man jumped into the fight. Pablo was kicking the door of the van to get Austin’s attention and Raquel was searching her car, and then the van, for a cell phone with which to call 911. Austin woke up and joined the fight, tackling one of the two men. Austin believed he and Pablo were winning the fight. After about a minute, Ortez told the other man, “Let’s just stab this fool.” A third male came from behind the van and entered the fray. At some point, the three males ran away. Two of them chased Pablo across the street to his home before disappearing.

Austin returned to the van to check on Raquel, realized he had been stabbed, and threw up. Austin had a one-inch stab wound to his right side, which punctured his right lung and made it fill with blood. Pablo realized he had been stabbed as well when he felt pain in his ear and stomach. Pablo ran across the street to his house, fell and lay in the driveway, holding his intestines in his hands as he called 911. Pablo underwent surgery for multiple stab wounds to the abdomen, neck, wrist and shoulder, including a large stab wound to the bowel, which was outside the abdominal cavity. The surgeon considered the bowel damage to be life-threatening. The stab wound to Pablo’s neck was close to the carotid artery, and would likely have been fatal had the knife hit the artery.

Austin did not regain full use of his lung. At Roa’s sentencing hearing in May 2016, the court heard that after the knife attack, Austin stopped playing college football, dropped out of college, became depressed, isolated himself from friends and a loving family, and had only recently regained enough function to obtain employment. The court heard that the stab wound to Pablo’s neck caused nerve damage that made him smile involuntarily and caused twitching, that he had closed himself off from his family, was afraid on a daily basis, was fearful the third unidentified attacker would come to his place of employment, and was emotionally unable to testify at the sentencing hearing.

DNA from items left at the scene eventually connected Roa and Ortez to the crimes.

Statement of Procedure

Ortez’s Juvenile Proceedings

Ortez was born on October 31, 1996. On September 3, 2014, the People filed a subsequent juvenile petition alleging attempted murder and assault, with additional allegations. On November 14, 2014, the court granted the People’s motion to declare Ortez not a fit and proper subject for the juvenile court.

Proceedings Common to Both Defendants

On March 19, 2015, the People filed an information charging both defendants with two counts of attempted murder (§§ 664/187), two counts of assault with a deadly weapon, a knife (§ 245, subd. (a)(1)), and one count of attempted robbery (§§ 664/211). As to all five counts, the People alleged that Ortez personally used a dangerous weapon and personally inflicted great bodily injury on the victim. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(8), 12022.7, subd. (a).) The People further alleged that Ortez had a prior juvenile adjudication for robbery (§ 211), which qualified as a serious felony under section 667, subdivision (a), and as a “strike” under section 667, subdivisions (c) and (e)(1), and section 1170.12, subdivision (c)(1)). As to Roa, the People further alleged that he had four prison term priors. (§ 667, subd. (b).)

On December 3, 2015, the court granted the People’s motion to impanel two separate juries to hear the charges against Ortez and Roa, because Roa had made statements incriminating both himself and Ortez.

Roa’s Conviction and Sentencing

On December 23, 2015, Roa’s jury convicted him of one count of attempted voluntary manslaughter, a lesser included offense of the attempted murder charge regarding Pablo Dimas, and acquitted him of all other counts. On May 27, 2016, the court sentenced Roa to the upper term of five years for the attempted voluntary manslaughter plus one year each for the four prison term priors, for a total sentence of nine years. On October 31, 2016, the court corrected Roa’s attempted manslaughter sentence to five years six months, for a total sentence of nine years six months.

Ortez’s Conviction and Sentencing

On December 18, 2015, Ortez’s jury found him guilty on all counts and found true each of the enhancement allegations. On that day, the court set the sentencing hearing for February 5, 2016, and referred the matter to the probation department for a probation report. The probation report is dated January 25, 2016. The report notes that the preparer attempted to interview Ortez in custody on January 20, 2016, but Ortez declined to participate after being read his rights under Miranda v. Arizona (1966) 384 U.S. 436. The sentencing hearing was subsequently continued to April 8, 2016, then to May 27 and June 17. The Supreme Court’s opinion in Franklin was filed on May 26, 2016.

On June 16, 2016, Ortez filed a motion for new trial. On June 17, the parties stipulated to continue the motion and sentencing hearing to August 12. The minute order states, “Clerk is to contact Probation Officer Ortega to see about getting a Supplemental Probation Report since the Defendant was a Juvenile at the time the crime was committed.” The record does not contain a supplemental report and the court did not refer to one at sentencing. The court certified by its signature on August 12 that it had read and considered the January 25 probation report.

At the sentencing hearing held on August 12, 2016, the court denied Ortez’s motion for new trial. The court held a trial on the serious felony prior and the strike prior, both based on the same juvenile adjudication for robbery, and found them true. The court then heard from family members of Austin and the prosecutor on behalf of Pablo, who described the long lasting and life altering effects the crimes had on both young men. Defense counsel pointed out that defendant had turned 17 just two days before committing the crimes and asked the court to run the sentences for the two attempted murders concurrent instead of consecutive, “given Mr. Ortez’s age at the time of this crime and his involvement.” The court then discussed the specifics of the crimes and the sentencing factors set forth in the probation report before sentencing defendant to 14 years plus two consecutive life terms with the possibility of parole as follows: life with the possibility of parole[2] for the two attempted murder counts, plus two consecutive three-year sentences for the great bodily injury enhancements to those counts, plus two consecutive one-year sentences for the personal knife use for those counts, plus one year consecutive for the attempted robbery, plus five years consecutive for the serious felony prior under section 667, subdivision (a). The court stayed the sentences for all other counts and enhancements under section 654.

Both defendants appealed.[3]

Discussion

1. Appellant Roa

After Roa appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende, supra, 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to undertake a review of the entire record.

We offered Roa an opportunity to file a personal supplemental brief, but he has not done so. We have examined the entire record and are satisfied that no arguable issues exist, and that Roa has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (People v. Kelly (2006) 40 Cal.4th 106.)

2. Appellant Ortez

1. Juvenile Adjudication Cannot Be Basis for Section 667, Subdivision (a) Enhancement

Ortez contends the five-year sentence enhancement for a serious felony prior under section 667, subdivision (a), must be stricken because it was improperly based on his prior juvenile adjudication. The People concede, and this court agrees, that the juvenile adjudication should not have been used as the basis for this sentencing enhancement.

Section 667, subdivision (a)(1), states: “[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” In 2012, in Riverside County Juvenile Court, case No. RIJ1201196, Ortez was found to have committed a crime that qualifies as a “serious felony,” namely robbery (§ 211) under sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1). Based on this, the section 667, subdivision (a)(1) enhancement may seem to apply.

However, the courts have looked beyond the text of Penal Code section 667, subdivision (a)(1), itself. For example, Welfare and Institutions Code section 203 reads: “An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding.” Furthermore, numerous cases have explained that juvenile delinquency proceedings and adult criminal prosecutions are different in kind, such that the former do not qualify as convictions. (See, e.g., People v. West (1984) 154 Cal.App.3d 100, 107-108 [“A distinction is made between criminal convictions and juvenile adjudications because of the fundamentally different purposes the two bodies of law are designed to serve”]; In re Joseph B. (1983) 34 Cal.3d 952, 955 [“minors charged with violations of the Juvenile Court Law are not ‘defendants.’ They do not ‘plead guilty,’ but admit the allegations of a petition. Moreover, ‘adjudications of juvenile wrongdoing are not “criminal convictions.” ’ ”].) Because of these differences between a juvenile adjudication and the conviction of an adult, the West court squarely held that the Penal Code section 667, subdivision (a)(1) enhancement, which requires a “conviction,” cannot be applied to a defendant based on a juvenile adjudication. (West, at pp. 106-110; see People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10 [citing West for proposition that “juvenile adjudications cannot be considered . . . a prior serious felony conviction for purposes of the mandatory five-year enhancement in section 667, subdivision (a).”].)

The enhancement is unauthorized by law and must be stricken.

2. Limited Remand Consistent with Franklin

Ortez further contends this court should order a limited remand pursuant to Franklin, so he may have the opportunity to make a record of information relevant to his eventual youth offender parole hearing. The People counter that Ortez was already afforded this opportunity and chose not to avail himself of it. Because the record indicates the parties and the court may not have been fully aware of Franklin’s requirements and their application to Ortez, we conclude that the matter must be remanded so the trial court can provide the parties with an opportunity to supplement the record with information relevant to Ortez’s future youth offender parole hearing.

“[T]he California Legislature passed Senate Bill No. 260 (2013–2014 Reg. Sess.), which became effective January 1, 2014, and enacted sections 3051, 3046, subdivision (c), and 4801, subdivision (c), to provide a parole eligibility mechanism for juvenile offenders.” (People v. Perez (2016) 3 Cal.App.5th 612, 618.) “In October 2015, the Legislature amended section 3051, and effective January 1, 2016, anyone who committed his or her controlling offense before reaching 23 years of age [became] entitled to a youth offender parole hearing. (§ 3051, subd. (a)(1), amended by Stats. 2015, ch. 471, § 1.)” (Ibid.) Section 3051, currently applies to those who committed their controlling offense before age 25.

Under section 3051, subdivision (b), the time in which the hearing is to be conducted varies according to the severity of the sentence imposed upon the youth offender: a person that receives a determinate sentence shall be eliglible for parole and entitled to a parole hearing during the 15th year of incarceration (§ 3051, subd. (b)(1)), while a person that receives a life sentence of less than 25 years to life is eliglible and entitled to a hearing during the 20th year of incarceration (§ 3051, subd. (b)(2)), and a person receiving a sentence of 25 years to life is eligible and entitled to a hearing during the 25th year of incarceration (§ 3051, subd. (b)(3)).

In Franklin, supra, 63 Cal.4th 261, the trial court sentenced the defendant to two mandatory terms of 25 years to life for offenses committed when he was 16 years old. The California Supreme Court held the defendant’s constitutional challenge to the sentence had been mooted by the enactment of sections 3051 and 4801, which gave the defendant the possibility of release after 25 years of imprisonment. (Franklin, at p. 268.) The Court concluded that although resentencing was unnecessary, it had to remand the matter because it could not determine whether the defendant had sufficient opportunity in the trial court “to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing.” (Id. at p. 284.) The statutes contemplate the Board of Parole Hearings (the Board) may consider “youth-related factors, such as his cognitive ability, character, and social and family background at the time of the offense.” (Id. at p. 269; accord, §§ 3051, subd. (f)(1), (2), 4801, subd. (c).) “For example, section 3051, subdivision (f)(2) provides that ‘[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime . . . may submit statements for review by the board.’ Assembling such statements ‘about the individual before the crime’ is typically a task more easily done at or near the time of the [defendant’s] offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away.” (Franklin, at pp. 283-284.) Additionally, section 3051, subdivision (f)(1), provides that any “ ‘psychological evaluations and risk assessment instruments’ used by the Board in assessing growth and maturity ‘shall take into consideration . . . any subsequent growth and increased maturity of the individual.’ Consideration of ‘subsequent growth and increased maturity’ implies the availability of information about the offender when he was a juvenile.” (Franklin, at p. 284.)

Because it was unclear whether the defendant had a sufficient opportunity to place the relevant information on the record, the Franklin court remanded the matter for the trial court to determine whether he was afforded such opportunity. It concluded: “If the trial court determines that [the 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. [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, 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.” (Franklin, supra, 63 Cal.4th at p. 284.)

A similar result is appropriate here, except we determine on this record that Ortez did not have the opportunity to present evidence relevant to his future youth offender parole hearing.

Ortez’s controlling offenses are two counts of attempted murder, for which the court imposed two consecutive sentences of life with the possibility of parole. (§ 3051, subd. (a)(2)(B).) He was 17 years old at the time of the offenses and is therefore entitled to a youth offender parole hearing. (§ 3051.) At this future youth offender parole hearing, the Board is required to give “great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” (§ 4801, subd. (c).) As the Supreme Court observed in Franklin, the statutes contemplate that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board’s consideration. (Franklin, supra, 63 Cal.4th at p. 283.)

Here, Franklin was decided in the closing weeks and months of Ortez’s two-year-long criminal proceedings. For this reason, the record does not contain the contemplated information about Ortez’s characteristics and circumstances at the time of the offense, other than the bare fact of his age, his juvenile criminal history, and the senselessness of the crimes. Franklin was filed four months after the probation report was prepared. The People point to Ortez’s decision on January 20, 2016, to decline an interview for the probation report as a waiver of his opportunity to place relevant information in the record, but this was well before Franklin, and thus defendant did not waive anything. Further, although Ortez’s sentencing hearing was finally held 11 weeks after the Franklin decision, our review of the record does not clearly reveal that defense counsel, the People, or even the court were fully aware that the sentencing hearing was the time to place on the record the information about Ortez’s characteristics and circumstances so it could be helpful to him at his youth offender parole hearing as required by Franklin. Defense counsel did not file a sentencing memorandum and at sentencing argued only the fact of Ortez’s age and his “involvement” in the crimes, and that this should sway the court to impose the two life sentences concurrently rather than consecutively. That is all. Neither did the court refer to any information in its possession about Ortez’s characteristics and circumstances, as these were not included in the probation report from nearly seven months prior.

The People argue Franklin requires only that a defendant have sufficient opportunity to present mitigating evidence for a future youth offender parole hearing, not that defense counsel actually present such evidence to the court at sentencing. For this proposition, the People cite to People v. Cornejo (2016) 3 Cal.App.5th 36, 68-70 (Cornejo). However, Cornejo is very easily distinguishable from the current matter. In that case, the two juvenile defendants and an adult defendant were convicted of crimes including second degree murder and four counts of attempted murder for a drive-by shooting. Each defendant was sentenced to at least 120 years to life. The court found that it need not order a limited remand under Franklin because the two juveniles were afforded an adequate opportunity to make a record regarding their characteristics and circumstances. The court specified that its holding was “based on the procedural context of this case,” in that the sentencing memorandum for each juvenile contained sufficient relevant information for the Board’s future consideration. (Id. at pp. 44, 68-69.) When they have their youth parole hearing, the defendants in Cornejo will have the following information to aid them: One youthful defendant will have mitigating evidence “includ[ing] 23 character reference letters attesting to his good character despite his active participation in the murder.” (Id. at p. 69.) The other will have information from a neuropsychological evaluation, references to trial testimony of a physician who testified at trial that the defendant had suffered brain damage and had a low IQ, and very specific information about abuse he suffered as a child, his mother’s lack of prenatal care and prenatal drug abuse, and family homelessness, as well as argument regarding how these and other factors lessened his moral culpability for committing the crimes. (Cornejo, at pp. 69-70.) For his youth offender parole hearing, Ortez will have the fact that he turned 17 just two days before he committed these horrific crimes. Period. The holding in Cornejo thus was based on facts vastly dissimilar to those in the current matter, and we do not consider it to be applicable here.

We conclude that Ortez did not have a meaningful opportunity to make a record of information that will aid the Board in fulfilling its statutory obligations under sections 3051 and 4801. “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.) To help reach this goal, we will order a remand for the trial court to provide the parties with an opportunity to supplement the record with information relevant to Ortez’s future youth offender parole hearing. Ortez “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 [his] culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.” (Franklin, supra, 63 Cal.4th at p. 284; see People v. Rodriguez (2018) 4 Cal.5th 1123, 1132 [“In so doing, the trial court may exercise its discretion to conduct this process efficiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rules, statutes, and regulations.”])

Disposition

The judgment is affirmed as to both Roa and Ortez. Regarding Ortez, we remand the matter to the trial court for the limited purposes of: (1) striking the serious felony prior enhancement and five-year consecutive sentence under section 667, subdivision (a); and (2) affording Ortez a meaningful 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.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.