Filed 6/30/17 P. v. Campero CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER ANDREW CAMPERO,

Defendant and Appellant.


E066554

(Super.Ct.No. RIF1502233)

OPINION


APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed and remanded with directions.
Jeanine G. Strong, 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, Arlene A. Sevidal and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Christopher Andrew Campero was charged by felony complaint with two counts of attempted murder (Pen. Code, §§ 664, 187, counts 1 & 2) and one count of unlawful possession of a firearm (§ 29800, subd. (a)(1), count 3). The complaint also alleged that defendant committed counts 1 and 2 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), he personally used a firearm (§ 12022.53, subd. (b)), and intentionally discharged a firearm and caused great bodily injury (§ 12022.53, subd. (d)). Defendant pled not guilty to all charges. A trial court denied his oral request under People v. Marsden (1970) 2 Cal.3d 118 to appoint substitute counsel. Defendant subsequently entered a plea agreement and pled guilty to all three counts and admitted the gang enhancement. (§ 186.22, subd. (b)(1)(C).) He also admitted that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) and personally inflicted great bodily injury on another person (§ 12022.7, subd. (a)). The court immediately sentenced him to the agreed-upon term of 45 years in state prison and dismissed the remaining allegations.
Defendant filed a notice of appeal in propria persona and requested a certificate of probable cause, which the court denied. Appellate counsel subsequently filed an amended notice of appeal. Defendant now contends that this court should remand the case to the trial court so that he may be afforded the opportunity to make a record of information relevant to his eventual youth offender parole hearing. We affirm the judgment, but order a limited remand.
FACTUAL BACKGROUND
Defendant was released from the Southwest Detention Center and found out that the mother of his child had left him and gotten pregnant by a “guy from Hillside.” Defendant felt angry and betrayed. On the evening of June 11, 2015, his codefendant drove him to the Hillside area so he could “take care of business.” They drove by a house where several men were standing in the front yard. Defendant asked them where they were from. He then told his codefendant to drop him off and wait around the corner. Defendant walked up to the group of men and shot a rifle in their direction 10 times. Two of the men suffered injuries from the gun shots.
Defendant was arrested. After being read his Miranda rights, he confessed to the shooting. He was 18 years old at the time of the offense.
ANALYSIS
The Matter Should Be Remanded
Defendant contends this court should order a limited remand pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin), so that he may be afforded the opportunity to make a record of information relevant to his eventual youth offender parole hearing. We conclude that the matter should be remanded to determine whether he was afforded the adequate opportunity to make such record.
“[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 (Perez).) “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, subdivision (b)(1), provides that “[a] person who was convicted of a controlling offense that was committed before the person had attained 23 years of age and for which the sentence is a determinate sentence shall be eligible for release on parole at a youth offender parole hearing by the board during his or her 15th year of incarceration, unless previously released pursuant to other statutory provisions.”
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. (Id. 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.)
The same result is appropriate here. Defendant’s controlling offense was the firearm enhancement (§ 12022.53, subd. (c)), for which the court imposed 20 years in state prison. (§ 3051, subd. (a)(2)(B).) He was 18 years old at the time of the offense and is therefore entitled to a youth offender parole hearing during his 15th year of incarceration. (§ 3051, subd. (b)(1).) At a 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, because defendant entered a plea agreement, counsel did not submit a sentencing memorandum, and no probation report was prepared. In other words, there were no mitigating circumstances presented to the court. Moreover, the court sentenced defendant immediately after taking his plea. The People acknowledge the circumstances, but argue that nothing prevented defendant from presenting information he believed to be relevant to his future youth offender parole hearing. He simply failed to do so. The People appear to be claiming that defendant waived the opportunity to present the information. In his reply brief, defendant contends that he could not have made a knowing waiver if he was not aware of the need to present evidence for his eventual youth offender parole hearing. Furthermore, he asserts that it is reasonable to infer his defense counsel, the prosecutor, and the trial court were similarly not aware that he should have the opportunity to present such evidence, since Franklin was decided on May 26, 2016, and he was sentenced on July 14, 2016. We note that the amendment to section 3051, providing that the parole eligibility mechanism for juvenile offenders applied to anyone who committed his offense before reaching 23 years of age, became effective on January 1, 2016. (Perez, supra, 3 Cal.App.5th at p. 618.)
We conclude that it is not clear if the parties and/or the court were aware of the amendment to section 3051, or whether defendant had an adequate 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, italics added.) Therefore, we will order a remand, pursuant to Franklin, for the trial court to determine whether defendant was afforded a sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing. If the trial court determines that defendant did not have sufficient opportunity, then he “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 Perez, supra, 3 Cal.App.5th at pp. 619-620; People v. Scott (2016) 3 Cal.App.5th 1265, 1283 [this court ordered a limited remand for the trial court to determine whether the defendant was afforded an adequate opportunity to make a record of information for review, pursuant to section 3051, subdivisions (d) & (e)].)
DISPOSITION
The judgment is affirmed. We remand the matter to the trial court for the limited purpose of determining whether defendant was afforded an adequate opportunity to make a record of information that will be relevant to the Board of Parole Hearings, as it fulfills its statutory obligations under sections 3051 and 4801.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


McKINSTER
J.


We concur:


RAMIREZ
P. J.


MILLER
J.