Filed 4/3/18 P. v. See CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHAWA SEE,

Defendant and Appellant.

F075084

(Super. Ct. No. VCF171678D)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Chawa See was 16 years old when he and three other gang members approached Robert Trevino and See shot him in the head. A jury convicted See of murder (Pen. Code, § 187, subd. (a)) and conspiracy to commit murder (§§ 182/187) and found true a gang enhancement (§ 186.22, subd. (b)(1)), a special circumstance allegation (§ 190.2, subd. (a)(22), and a personal use and intentional discharge of a firearm enhancement (§ 12022.53, subds. (d) & (e)(1)).
The court originally sentenced See to 25 years to life without the possibility of parole (LWOP) for the murder and a consecutive 25 years to life for the firearm enhancement. However, on May 13, 2016, the court granted See’s petition for a writ of habeas corpus that alleged his LWOP sentence violated the Eighth Amendment.
On December 19, 2016, the court sentenced See to a term of 25 years to life for the murder and a consecutive 25 years to life for the firearm enhancement.
On appeal, See contends: (1) his mandatory sentence of 50 years to life is the functional equivalent of LWOP and violates the Eighth Amendment; and (2) pursuant to a recent change in the law, the matter must be remanded to the trial court for it to exercise its discretion whether to strike his firearm enhancement. We find merit to See’s second contention and remand the matter to the trial court for it to exercise its discretion whether to strike See’s firearm enhancement. In all other respects we affirm.
DISCUSSION
See’s Sentence Does Not Violate the Eighth Amendment
In Miller v. Alabama (2012) 567 U.S. 460 (Miller), the United States Supreme Court held that mandatory LWOP sentences for juveniles who commit homicide, without consideration of their age and age related characteristics, violated the Eighth Amendment’s prohibition against cruel and unusual punishment. (Miller, at pp. 465, 489.)
In People v. Gutierrez (2014) 58 Cal.4th 1354, our Supreme Court interpreted Miller to require a court to consider the following age related characteristics before it may impose an LWOP sentence on a juvenile homicide defendant: (1) “a juvenile offender’s ‘chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences …’ ” (People v. Gutierrez, supra, at p. 1388); (2) “evidence or other information in the record regarding ‘the family and home environment that surrounds [the juvenile]—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional …’ ” (id. at pp. 1388-1389); (3) “ ‘the circumstances of the homicide offense, including the extent of [the juvenile defendant’s] participation in the conduct and the way familial and peer pressures may have affected him …’ ” (id. at p. 1389); (4) “whether the offender ‘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’ ” (ibid); and (5) “any evidence or other information in the record bearing on ‘the possibility of rehabilitation’ ” (ibid).
See contends his sentence of 50 years to life is the functional equivalent of LWOP and that the court did not consider the Miller factors noted above before imposing this sentence. Thus, according to See, his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment and was an abuse of discretion.
See’s contention is rendered moot by our Supreme Court’s decision in People v. Franklin (2016) 63 Cal.4th 261 (Franklin). In Franklin, a jury convicted the defendant, who was 16 years old when he shot and killed another teenager, of first degree murder and found true a personal firearm discharge enhancement. The trial court was obligated by statute to impose two consecutive 25-year-to-life sentences and sentenced him to life in prison with the possibility of parole after 50 years. (Id. at p. 268.) On appeal, the defendant challenged the constitutionality of his sentence under Miller and People v. Caballero (2012) 55 Cal.4th 262 (Caballero). Caballero held “that the prohibition on life without parole sentences for all juvenile nonhomicide offenders established in Graham v. Florida (2010) 560 U.S. 48 (Graham), applied to sentences that were the ‘functional equivalent of a life without parole sentence,’ including Caballero’s term of 110 years to life.” (Franklin, supra, 63 Cal.4th at p. 268.)
In finding the defendant’s claim moot, our Supreme Court stated:
“[S]ections 3051and 4801—recently enacted by the Legislature to bring juvenile sentencing in conformity with Miller, Graham, and Caballero—moot Franklin’s constitutional claim. Consistent with constitutional dictates, those statutes provide Franklin with the possibility of release after 25 years of imprisonment [§ 3501, subd. (b)(3)][ ] and require the Board of Parole Hearings (Board) 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’ (id., § 4801, subd. (c)).[ ] In light of this holding, we need not decide whether a life sentence with parole eligibility after 50 years of incarceration is the functional equivalent of an LWOP sentence and, if so, whether it is unconstitutional in Franklin’s case.” (Franklin, supra, 63 Cal.4th at p. 268.)
Like the juvenile in Franklin, even though See was sentenced to a term of 50 years to life, pursuant to section 3051 he will be eligible for release on parole during his 25th year of incarceration and the board reviewing his suitability for parole will be required to give “great weight” to the circumstances enumerated in section 4801, subdivision (c). Thus, in accord with Franklin, we conclude that See’s constitutional claim is moot.
See reasons that because Miller found mandatory LWOP sentences unconstitutional based not only on the severity of the penalty, but also on the mandatory nature of the sentence, which precluded consideration of a defendant’s age and age related characteristics, all mandatory sentences for juveniles are unconstitutional under the Eighth Amendment, “no matter what the ultimate penalty[.]” Thus, according to See, the possibility of parole pursuant to section 3051 does not moot his contention that his sentence, which was mandated by statute (§§ 187, subd. (a), 189, & 12022.53, subds. (a)(1), (d), & (h)), is unconstitutional under the Eighth Amendment. See is wrong.
As noted by See, in Miller, the severity of the LWOP penalty, in addition to its mandatory nature, led the court to conclude that a mandatory LWOP sentence for a juvenile homicide offender violated the Eighth Amendment. (Miller, supra, 567 U.S. at pp. 469-470.) Thus, it does not follow from Miller that any mandatory sentence imposed on a juvenile violates the Eighth Amendment simply by virtue of being mandatory. Further, Miller is not controlling here because See is not serving a mandatory LWOP sentence, or a functionally equivalent sentence, and pursuant to section 3051 he will be eligible for release on parole during his 25th year of incarceration.
In Graham, the Supreme Court held that the Eighth Amendment forbids the sentence of life without parole for a juvenile nonhomicide offender. (Graham, supra, 560 U.S. at p. 74.) It also held that although a state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime, it must give these juvenile offenders “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (Id. at p. 75.)
See relies on Graham to contend that sections 3051 and 4081 do not moot his Eighth Amendment contention because: (1) neither section 3051 nor 4801 “address how the [parole] board is to resolve the tension between the requirement that it consider those factors reducing a juvenile’s culpability and the usual criteria for parole, which allow [the board] to deny parole based on an offender’s culpability”; and (2) section 4801 does not require the board to “acknowledge the Supreme Court’s directive that a life sentence is reserved for the rarest of juvenile offenders.” We reject these contentions.
See’s reliance on Graham is unavailing because it involved a nonhomicide juvenile offender and See is a juvenile homicide offender. In any event, in Montgomery v. Louisiana (2016) 136 S.Ct. 718, 736 (Montgomery), which involved a juvenile offender who, like See, committed a homicide, the Supreme Court held,
“A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. § 6–10–301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. [¶] … [¶] … In light of what this Court has said in … Graham, and Miller about how children are constitutionally different from adults in their level of culpability, … [juvenile homicide offenders] must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.” (Montgomery, supra, 136 S.Ct. at pp. 736-737, italics added.)
In Graham, the court stated that permitting juvenile nonhomicide offenders to be considered for parole provided such offenders a “meaningful opportunity to obtain release.” However, the juvenile in Graham, who was sentenced to life with the possibility of parole, did not have a meaningful opportunity to be released from his life sentence because he could only be released through an act of clemency by the governor. (Graham, supra, 560 U.S. at p. 75.) We glean from this circumstance and the above quoted portion of Montgomery that eligibility for parole provides the meaningful opportunity for release referred to by the Graham court.
In any event, Montgomery and Franklin are controlling here because they each involved a juvenile homicide offender like See. Further, it is clear from Montgomery that by allowing See to be considered for parole during his 25th year of incarceration, section 3051 rendered his sentence constitutional. Moreover, section 3051 goes beyond the requirements of Montgomery because it requires the parole board to give “great weight to the diminished culpability of youth 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), italics added.) Accordingly, we reject See’s constitutional challenge to his sentence. (Franklin, supra, 63 Cal.4th at p. 268.)
The Arming Enhancement
On October 11, 2017, the Governor approved Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB No. 620), which went into effect on January 1, 2018. (Stats. 2017, ch. 682, § 2.) This bill amends section 12022.53, to allow the trial court discretion to dismiss a firearm enhancement imposed pursuant to this section. (§ 12022.53, subd. (h).)
Pursuant to section 12022.53, subdivision (d), the trial court imposed an indeterminate term of 25 years to life on See’s gun-use enhancement. See contends the amendment to section 12022.53, subdivision (h) applies retroactively to his case and that the matter must be remanded for resentencing. Respondent concedes that the amendment of section 12022.53, subdivision (h) applies retroactively to See’s case. Respondent, however, contends that remand is not appropriate because no reasonable court would exercise its discretion to strike See’s arming enhancement. We agree that SB No. 620 applies to See’s case and we will remand the matter to the trial court for it to consider whether to strike See’s firearm enhancement.
Absent evidence to the contrary, it is presumed the Legislature intended an amended statute reducing the punishment for a criminal offense to apply retroactively to defendants whose judgments are not yet final on the statute’s operative date. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.) Because there is no indication that the recent amendments to section 12022.53 were intended to operate prospectively only, SB No. 620 applies retroactively to See’s case.
Respondent argues remand is inappropriate given the heinous nature of See’s murder offense, which involved See shooting an unarmed victim in the head from three or four feet away, because no reasonable court would exercise its discretion to strike See’s firearm enhancement. While the facts of this case suggest the trial court would not strike the firearm enhancement at issue here if it had discretion to do so at the time, we do not agree that there is no purpose to remanding this case. The sole published case cited by the People in support of their position, People v. Gutierrez (1996) 48 Cal.App.4th 1894, is distinguishable because when the trial court in Gutierrez sentenced the defendant, it clearly stated it did not find “any good cause to strike” the prior conviction at issue and “a lot of reasons not to,” and it concluded that the defendant was “the kind of individual the law was intended to keep off the street as long as possible.” (Id. at p. 1896.) Further, this case is more like People v. Brown (2007) 147 Cal.App.4th 1213, 1228, where the court noted that it is generally appropriate to remand for resentencing when a court proceeded through sentencing erroneously believing it lacked discretion to act in a certain way. While we offer no position on how the trial court should act when exercising its newfound discretion under SB No. 620, we conclude the trial court should be provided the opportunity to exercise that discretion in the first instance.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2) and, if appropriate following exercise of that discretion, to resentence See accordingly.