People v. Vargas CA2/2 ( 2021 )

Filed 7/30/21 P. v. Vargas CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B304488
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA110684)
v.
JOSE DOLORES VARGAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Curtis B. Rappe, Judge. Affirmed and
remanded with directions.
Law Offices of Michael R. Kilts, Michael R. Kilts and
Joseph P. Farnan for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and Michael
Katz, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Jose Dolores Vargas appeals the judgment entered
following a jury trial in which he was convicted of four counts of
premeditated attempted murder (Pen. Code,1 §§ 664/187; counts
1–4), four counts of assault with a semiautomatic firearm (§ 245,
subd. (b); counts 5–8), and one count of shooting at an occupied
motor vehicle (§ 246; count 9). The jury found true the charged
criminal street gang allegations (§ 186.22, subd. (b)), the great
bodily injury enhancement allegation (§ 12022.7, subd. (a)), and
the firearm use allegations (§ 12022.53, subds. (b), (c), (d) & (e);
§ 12022.5, subd. (a)). The trial court sentenced appellant to a
term of 128 years to life.
Appellant contends: (1) Reversal is required based on the
trial court’s refusal to instruct the jury that a defendant’s mere
presence at the scene of a crime is insufficient for conviction;
(2) the trial court committed reversible error when it admitted
evidence of another shooting that occurred two days before the
charged crimes; (3) the cumulative effect of these errors rendered
the trial fundamentally unfair, requiring reversal; and (4) the
matter should be remanded to the trial court to reconsider
exercising its discretion to strike the firearm allegations
pursuant to Senate Bill No. 620. We reject appellant’s
contentions and affirm the judgment of conviction.
Appellant was 18 years old when he committed the offenses
in this case and contends he is entitled to a limited remand for a
proceeding pursuant to People v. Franklin (2016) 63 Cal.4th 261(Franklin) to preserve evidence for a future youth offender parole
hearing in accordance with section 3051, subdivisions (d)
through (f). We agree and remand the matter to the trial court
1 Undesignated statutory references are to the Penal Code.
2
for a full Franklin proceeding for the purpose of affording both
parties the opportunity to make a record of information relevant
to appellant’s future youth offender parole hearing. In addition,
the trial court is directed to correct the abstract of judgment to
accurately reflect the court’s oral pronouncement of sentence.
FACTUAL BACKGROUND
On the night of November 11, 2018, Alicia Melgar and
Giovani Garcia were hanging out at Normandale Park when two
men dressed in black approached them. At that time,
Normandale Park was the claimed territory of the East Side
Torrance gang, one of whose rivals was the Varrio Harbor City
gang. The park had been the site of multiple gang shootings and
was tagged with East Side Torrance gang graffiti.
Melgar heard someone say, “what’s up, homie?” or “what’s
up, fool?” and looked over to see two men in black hoodie
sweatshirts standing five to ten feet away. One of the men was
heavyset and the other taller and thin. Melgar saw the heavyset
man fire his gun at her, and a witness saw both men extend their
arms to shoot directly at Melgar and Garcia. Melgar suffered a
gunshot wound to her leg.
Los Angeles Police Officers Valery Vargas and Matthew
Clymer were driving an unmarked SUV close to Normandale
Park when they heard gunshots. As the officers pulled into the
parking lot they saw two men in dark clothing⎯one heavyset, the
other thin⎯running through the park toward the police vehicle.
Both men fired at the SUV, and one gunshot struck the vehicle.
Both officers returned fire. The heavier suspect, identified as
appellant, was hit by gunfire and fell to the sidewalk. The
thinner man continued running and escaped.
3
On the ground not far from where appellant had fallen,
police found a nine-millimeter Luger semiautomatic handgun
with the serial number scratched off. The bullet that hit the
police SUV came from that gun, as did two expended nine-
millimeter shell casings found on the ground in the area where
Melgar had been shot, and two other nine-millimeter shell
casings found along the path the men had traveled.
Shortly after the shootings, Varrio Harbor City gang
member Julian Herrera showed up in the emergency room of a
Kaiser Permanente hospital near Normandale Park. He was
dressed in a black hoodie and dark jeans, and had a gunshot
wound in the back of his shoulder. Following his release from the
hospital, Herrera was arrested and placed in a jail cell with an
undercover police officer posing as an inmate. During their
recorded conversation, which was played to the jury, Herrera said
that he and his friend “Jose” had committed a walk-up shooting
at night in “the enemy’s park.” According to Herrera, police
started shooting at them, and he and Jose returned fire. Jose got
shot in the leg or chest, and was unable to stand when Herrera
tried to help him up. Herrera said he had used a revolver in the
shooting which was “in the ocean,” but he believed that police had
probably found a gun on Jose.
A few days after the shootings, police searched appellant’s
home and recovered a Houston Astros hat with gang writing from
appellant’s bedroom. The prosecution gang expert testified that
the hat and writing were associated with the Varrio Harbor City
gang. The expert opined that the Normandale Park shooting and
another shooting on November 9, 2018, in the same area
involving the same nine-millimeter firearm were both committed
4
in association with and for the benefit of the Varrio Harbor City
gang.
DISCUSSION
I. The Trial Court Properly Refused the Defense
Request for a Pinpoint Instruction on the
Aiding and Abetting Principle of Mere Presence
A. Relevant background
Appellant did not deny he was present in Normandale Park
on November 11, 2018, when the shootings occurred. Rather, it
was the defense theory of the case that after someone else fired
shots at Melgar and Garcia, appellant had run away from the
gunfire. Mistaking the officers who had started firing from an
unmarked police car for gang members seeking payback for the
shooting, appellant also tried to run away from the police.
According to the defense, police planted the gun, bullet casings,
and a live round found at the scene to cover up the wrongful
shooting of appellant.
Based on this theory, defense counsel requested a pinpoint
instruction that evidence of appellant’s mere presence at the
scene of the crime is insufficient for conviction. Defense counsel
argued that because there was no evidence appellant dropped or
ever had a gun in his possession, he was entitled to an
instruction that his mere presence at the park could not be used
against him. The trial court denied appellant’s instruction
request.
B. Appellant was not prosecuted as an aider and abettor
and was therefore not entitled to a mere presence
instruction
Appellant contends the trial court committed reversible
error by refusing to instruct the jury that evidence of a
5
defendant’s mere presence at the scene of a crime is insufficient
by itself to sustain a conviction. The trial court properly denied
appellant’s instruction request, even though it did so for the
wrong reason.2
In resolving whether a trial court has erred in giving or
refusing to give particular jury instructions, we consider the
instructions as a whole to determine whether the trial court
“ ‘ “fully and fairly instructed on the applicable law.” ’ ” (People v.
Elder (2017) 11 Cal.App.5th 123, 134.) A trial court does not err
by declining to instruct on a principle of law that is not applicable
to the case. (People v. Gutierrez (2009) 45 Cal.4th 789, 815 [no
error in refusing instruction concerning jury’s evaluation of child
witness testimony where child not called as a witness]; Elder, at
p. 135.) Furthermore, in conducting our examination we
“ ‘ “assume that the jurors are intelligent persons and capable of
understanding and correlating all jury instructions which are
given.” ’ ” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
The mere presence principle on which appellant sought
instruction is found in 1 CALCRIM No. 401, “Aiding and
Abetting: Intended Crimes.” The instruction begins by
identifying the elements required for the People to prove the
defendant guilty of a crime based on a theory of aiding and
2 The trial court denied the requested instruction on the
ground that other instructions adequately informed the jury that
a defendant’s mere presence at the crime scene was insufficient
evidence of culpability as an aider and abettor. However,
appellant was not prosecuted under a theory of aiding and
abetting, and the trial court was mistaken that there were other
instructions on the topic.
6
abetting.3 The instruction goes on to state that if the prosecution
meets its burden of proving all of the elements, the defendant
need not have been present when the crime was committed to be
convicted as an aider and abettor. On the other hand, if the jury
concludes the defendant was present at the scene of the crime or
failed to prevent it, “[the jury] may consider that fact in
determining whether the defendant was an aider and abettor.
However, the fact that a person is present at the scene of a crime
or fails to prevent the crime does not, by itself, make him or her an
aider and abettor.” (1 CALCRIM No. 401, italics added.)
It is clear from the title and the specific language of the
instruction that it applies only to the jury’s consideration of
whether the defendant may be found guilty of a crime as an aider
and abettor. However, where the prosecution does not proceed
under an aiding and abetting theory, the instruction has no
relevance and would serve only to confuse the jury. Here, the
prosecution’s theory of the case against appellant was that he
was a direct perpetrator of the crimes, not an aider and abettor.
Accordingly, the jury was not given an aiding and abetting theory
of liability in the instructions on any of the charged offenses,4 nor
3 Those elements are: “1. The perpetrator committed the
crime; [¶] 2. The defendant knew that the perpetrator intended to
commit the crime; [¶] 3. Before or during the commission of the
crime, the defendant intended to aid and abet the perpetrator in
committing the crime; [¶] AND [¶] 4. The defendant’s words or
conduct did in fact aid and abet the perpetrator’s commission of
the crime.” (1 CALCRIM No. 401.)
4 Although the jury was instructed it could find the gang-
related firearm enhancement true based on aiding and abetting
7
were aiding and abetting principles discussed by either party in
closing argument.
The trial court had no duty to instruct that the defendant’s
mere presence at the scene of the crime is insufficient to establish
guilt as an aider and abettor because that principle of law had no
application to the case. (Elder, supra, 11 Cal.App.5th at p. 135
[no error in failing to give requested instruction where
instruction states a principle of law not applicable to the case].)
Appellant nevertheless argues he was entitled to the
instruction because there was substantial evidence in support of
the defense theory that appellant was merely present at the park
and had nothing to do with the shootings that took place there.
But the existence of substantial evidence supporting the defense
theory did not entitle appellant to an instruction on an irrelevant
principle of law. Moreover, the trial court had no duty to give a
modified version of the instruction that simply omitted any
reference to aiding and abetting. By stating the obvious fact that
mere presence at the scene of a crime is insufficient to prove the
defendant is the perpetrator of the crime, such a pinpoint
instruction would be more argumentative than informative in
principles (1 CALCRIM No. 1402), the instruction made clear in
the first sentence that the jury first had to convict appellant of
attempted murder and find that he committed the crime for the
benefit of or in association with a criminal street gang before it
could consider the vicarious firearm enhancement. (§ 12022.53,
subd. (e)(1); see People v. Garcia (2002) 28 Cal.4th 1166, 1171
[“Section 12022.53, subdivision (e)(1), imposes vicarious liability
under this section on aiders and abettors who commit crimes in
participation of a criminal street gang”].)
8
light of the instructions stating the elements of the crimes the
People had the burden to prove.
“Although instructions pinpointing the defense’s legal
theories might be appropriate, a defendant is not entitled to
instructions that simply highlight facts favorable to him.”
(People v. Jackson (2014) 58 Cal.4th 724, 768; People v. Chhoun
(2021) 11 Cal.5th 1, 51; People v. Gutierrez (2002) 28 Cal.4th
1083, 1159.) Indeed, a trial court properly denies a request for a
particular instruction “if the instruction is argumentative
[citation], misstates the law [citation], or duplicates other
instructions [citation].” (People v. Daveggio and Michaud (2018)
4 Cal.5th 790, 851.)
Finally, we reject appellant’s contention that the
prosecutor’s mistaken belief that other instructions already
addressed the topic of the requested instruction precludes
respondent’s argument on appeal that the proposed instruction
was not required. The prosecutor’s opinion was not binding on
the trial court (People v. Avena (1996) 13 Cal.4th 394, 416, fn. 1),
nor does it affect the propriety of the court’s ruling, which we
uphold if correct on any legal ground. (People v. Brooks (2017) 3
Cal.5th 1, 39 (Brooks) [“ ‘ “we review the ruling, not the court’s
reasoning and, if the ruling was correct on any ground, we
affirm” ’ ”]; People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12
[same].)
9
II. The Trial Court Did Not Abuse Its Discretion in
Admitting Evidence of a Prior Shooting
Involving the Same Gun that Was Used in the
Current Offenses
A. Relevant background
On November 9, 2018, two days before the charged offenses
in this case, two East Side Torrance gang members were shot
multiple times in East Side Torrance territory near Normandale
Park. One of the victims reported that two or three people had
jumped out of a car and yelled, “ ‘Are you from Tramps?5’ ” before
opening fire. Police recovered five expended nine-millimeter
bullet casings from the scene, which were determined to have
been fired from the same firearm found near appellant on the
sidewalk after the shootings in the instant case. There was no
evidence appellant had been involved in the November 9
shooting.
Before opening statements, the court ruled that it would
admit evidence of the prior shooting on the ground that it was
relevant to the gang allegation. During the prosecution’s case,
defense counsel argued that the evidence should be excluded
because it was improper propensity evidence, irrelevant and
unduly prejudicial. The court again ruled the evidence
admissible, emphasizing that the same gun had been used in
both the prior and the current shootings.
B. The evidence was relevant and not unduly prejudicial
Appellant contends the trial court abused its discretion in
admitting evidence of the prior shooting, which he asserts was
5
“Tramps” is a derogatory term for East Side Torrance
gang members when used by rival gangs.
10
irrelevant to proving a possible motive for the charged offenses
and was unduly prejudicial as propensity or other crimes
evidence. We disagree.
“ ‘Relevant evidence’ ” includes evidence “having any
tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.” (Evid. Code,
§ 210; People v. Sanchez (2019) 7 Cal.5th 14, 54.) While only
relevant evidence is admissible (Evid. Code, § 350), all relevant
evidence is admissible unless prohibited by statute. (Evid. Code,
§ 351; People v. Young (2019) 7 Cal.5th 905, 930.) “ ‘ “The test of
relevance is whether the evidence tends ‘logically, naturally, and
by reasonable inference’ to establish material facts such as
identity, intent, or motive.” ’ ” (Young, at p. 931.) And a “ ‘trial
court enjoys broad discretion in determining the relevance of
evidence and in assessing whether concerns of undue prejudice,
confusion, or consumption of time substantially outweigh the
probative value of particular evidence.’ ” (Sanchez, at p. 54; Evid.
Code, § 352.) On appeal, “ ‘[w]e review a trial court’s decision to
admit or exclude evidence “for abuse of discretion, and [the
ruling] will not be disturbed unless there is a showing that the
trial court acted in an arbitrary, capricious, or absurd manner
resulting in a miscarriage of justice.” ’ ” (Young, at p. 931.)
Appellant contends that the evidence of the prior shooting
“had no tendency in reason to prove appellant’s motive to commit
the charged November 11, 2018, shootings.” But even if this
evidence was not relevant to establishing motive, it did tend to
prove other disputed issues in the case. Specifically, evidence
about a gang-related shooting just two days before the charged
crimes in which the same gun was used was highly relevant to
countering the defense theory that the police planted the gun, as
11
well as to support the gang enhancement allegation by showing
that appellant had access to the firearm that had just been used
in another gang shooting. Again, the trial court’s admission of
the evidence on a different ground does not affect the analysis:
We uphold the ruling if it was correct on any ground. (Brooks,
supra, 3 Cal.5th at p. 39.)
Appellant also maintains that the evidence of the prior
shooting constituted propensity or other crimes evidence, which
should have been excluded as character evidence under Evidence
Code section 1101, subdivision (a). But there was no evidence
that appellant was involved in the prior shooting, nor any
indication the trial court admitted the evidence under Evidence
Code section 1101, subdivision (b).6 The admission of this
evidence thus did not implicate Evidence Code section 1101’s
limitations on the admission and use of character evidence at all.
Instead, its sole relevance was to establish a connection between
appellant’s gang and the gun used in the current offense and
thereby connect appellant with the charged shootings.
The trial court did not abuse its discretion by refusing to
exclude as unduly prejudicial the prior shooting evidence under
Evidence Code section 352 either. Under Evidence Code section
6 Evidence Code section 1101 generally proscribes
admission of “evidence of a person’s character or a trait of his or
her character . . . when offered to prove his or her conduct on a
specified occasion.” (Subd. (a).) However, the admission of
evidence of prior criminal conduct or other bad acts is not
prohibited when such evidence is “relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan,
knowledge, identity, [or] absence of mistake or accident . . .) other
than his or her disposition to commit such an act.” (Subd. (b).)
12
352, evidence that is relevant and otherwise admissible may
nevertheless be excluded if its probative value is substantially
outweighed by the probability that its admission will require an
undue consumption of time, will confuse or mislead the jury, or it
is unduly inflammatory or poses a substantial risk of undue
prejudice. (People v. Bryant, Smith and Wheeler (2014) 60
Cal.4th 335, 407; People v. Merriman (2014) 60 Cal.4th 1, 74
[court has broad discretion “to exclude even relevant evidence if it
determines the probative value of the evidence is substantially
outweighed by its possible prejudicial effects”].)
The testimony concerning the prior shooting itself conveyed
very little detail and was quite brief, consisting of just five pages
of trial transcript. There was nothing inflammatory about that
testimony or the rest of the evidence relating to the November 9
shooting, which concerned evidence collection and ballistics
analysis of the expended bullet casings from the two crime
scenes. And the evidence linking the firearm used in these two
shootings was not unduly prejudicial. As our Supreme Court has
repeatedly explained: “ ‘ “ ‘In applying [Evidence Code] section
352, “prejudicial” is not synonymous with “damaging.” ’ ”
[Citation.] “ ‘ “[A]ll evidence which tends to prove guilt is
prejudicial or damaging to the defendant’s case.” ’ ” [Citation.]
The “prejudice” which [Evidence Code] section 352 seeks to avoid
is that which “ ‘ “uniquely tends to evoke an emotional bias
against the defendant as an individual and which has very little
effect on the issues.” ’ ” ’ (People v. Cage (2015) 62 Cal.4th 256,
275.)” (People v. Chhoun, supra, 11 Cal.5th at p. 29.)
III. There Was No Cumulative Error
Appellant’s failure to demonstrate instructional error or
any abuse of discretion in the trial court’s admission of evidence
13
of the prior shooting means that his claim of cumulative error
also fails.
IV. The Trial Court Was Aware of and Properly
Exercised Its Discretion in Declining to Strike
the Firearm Enhancements
At the conclusion of appellant’s sentencing hearing the trial
court stated, “And I will just indicate for the record, because it’s
within the court’s discretion now to strike the firearm allegations,
and the court feels on the facts of this case that that would be an
abuse of the court’s discretion and I will not strike them.”
Appellant asserts that the trial court abused its discretion by
failing to consider mitigating factors from his background,
character, and prospects when it declined to strike the firearm
enhancements under Penal Code section 1385. Because the
probation report contained very little information and there was
no other evidence about appellant’s background and character
before the court, he argues the case must be remanded to enable
the trial court to reconsider exercising its discretion to strike the
firearm allegations pursuant to Senate Bill No. 620. We
disagree.
In 2017, the Legislature enacted Senate Bill No. 620 (2017–
2018 Reg. Sess.), which added subdivision (h) to section 12022.53
and gave trial courts discretion “in the interest of justice
pursuant to Section 1385 and at the time of sentencing, [to] strike
or dismiss an enhancement otherwise required to be imposed by
this section.” (§ 12022.53, subd. (h); People v. Pearson (2019) 38
Cal.App.5th 112, 116 (Pearson).) We review the trial court’s
decision to strike or retain a firearm enhancement under section
1385 for abuse of discretion. (Pearson, at p. 116; see People v.
Carmony (2004) 33 Cal.4th 367, 373 (Carmony).)
14
As our Supreme Court has explained, in conducting our
review “we are guided by two fundamental precepts. First,
‘ “[t]he burden is on the party attacking the sentence to clearly
show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ [Citations.]
Second, a ‘ “decision will not be reversed merely because
reasonable people might disagree. ‘An appellate tribunal is
neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.’ ” ’ [Citations.] Taken together,
these precepts establish that a trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, supra, 33
Cal.4th at pp. 376–377; Pearson, supra, 38 Cal.App.5th at p. 116.)
A trial court is required to consider all relevant factors
including any factors in mitigation at sentencing, and unless the
record affirmatively reflects otherwise, will be deemed to have
done so. (Cal. Rules of Court, rule 4.409; Pearson, supra, 38
Cal.App.5th at p. 117; People v. King (2010) 183 Cal.App.4th
1281, 1322.) Of course, a defendant is entitled to sentencing
decisions made in the exercise of the trial court’s “ ‘informed
discretion,’ ” and when a sentencing court was unaware of its
discretion, remand for resentencing is appropriate unless the
record clearly indicates that the court would have made the same
choice had it been aware of its discretion. (People v. Barber
(2020) 55 Cal.App.5th 787, 814; People v. Gutierrez (2014) 58
Cal.4th 1354, 1391.) Even where the record is ambiguous,
however, “ ‘ “a trial court is presumed to have been aware of and
15
followed the applicable law.” ’ ” (People v. Bryant, Smith and
Wheeler, supra, 60 Cal.4th at p. 398; Barber, at p. 814.)
The record in this case leaves no doubt that the trial court
was aware of its discretion to strike or retain the firearm
enhancements and chose the latter. And contrary to appellant’s
assertion, the probation report was not lacking information about
appellant from which the court could make an informed
determination “in light of the nature and circumstances of his
present felonies[, prior convictions], and the particulars of his
background, character, and prospects” about whether appellant
was deserving of the exercise of the court’s discretion under
section 1385. (People v. Williams (1998) 17 Cal.4th 148, 161.)
According to the probation report, appellant was born in January
2000, making him 18 years old at the time of the offenses, he has
no criminal history, and there is no indication appellant abuses
drugs or has any mental or physical health problems. Appellant
made no effort to provide the court with additional mitigating
factors or argue for an exercise of discretion under section 1385 in
his favor. In short, appellant merely speculates that additional
information is out there that would persuade the court that it
would not be an abuse of discretion to strike the firearm
enhancements. Speculation, however, is an insufficient basis for
rebutting the presumption that the trial court properly exercised
its discretion in retaining the firearm enhancements “on the facts
of this case.”
V. Appellant Is Entitled to a Franklin Proceeding
Appellant contends he is entitled to remand for a Franklin
proceeding because he was 18 years old when he committed the
offenses in this case.
16
Under section 3051, during the 25th year of his sentence
appellant will be entitled to a youth offender parole hearing to
provide him a meaningful opportunity to obtain release. (§ 3051,
subd. (e)). (§ 3051, subds. (a)(1), (b)(3), (e); Franklin, supra, 63
Cal.4th at p. 283.) When it determines whether to grant
appellant parole at that hearing, the Board of Parole Hearings
will be 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); Franklin, at p. 283.) In order to enable the
Board to fulfill its mandate, our Supreme Court requires that
youth offenders like appellant be afforded an opportunity to
preserve evidence of youth-related factors to be considered in
their eventual parole hearing. (Franklin, at p. 284; In re Cook
(2019) 7 Cal.5th 439, 449–450 (Cook).)
Under Franklin, that opportunity takes the form of a
proceeding in which the trial 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.’ ” (Cook, supra, 7 Cal.5th at
p. 450; Franklin, supra, 63 Cal.4th at p. 284.) Noting that such
information is more easily collected at or near the time of the
juvenile’s offense rather than decades later when memories have
17
faded, records have been lost or destroyed, and/or family and
community members may have relocated or passed away,
Franklin remanded the case to allow the defendant “sufficient
opportunity to put on the record the kinds of information that
sections 3051 and 4801 deem relevant at a youth offender parole
hearing.” (Franklin, at p. 284; Cook, at p. 459.)
Here, the Attorney General opposes remand not on the
basis of ineligibility, but because “ ‘[t]he record contains no
indication that’ appellant was denied ‘an adequate opportunity to
make a record of mitigating youth-related evidence as
contemplated in Franklin.’ ” (Citing People v. Medrano (2019) 40
Cal.App.5th 961, 967 (Medrano).) According to respondent, since
appellant failed to act on the opportunity he has already had to
present mitigating evidence regarding his youthfulness when he
committed his crimes, his sole remedy is to file a motion in the
superior court pursuant to section 1203.01.7 (See Cook, supra, 7
Cal.5th at pp. 446–447; Medrano, at p. 968.) We disagree.
7 Section 1203.01 provides in relevant part:
“(a) Immediately after judgment has been pronounced, the
judge and the district attorney, respectively, may cause to be filed
with the clerk of the court a brief statement of their views
respecting the person convicted or sentenced and the crime
committed, together with any reports the probation officer may
have filed relative to the prisoner. The judge and district
attorney shall cause those statements to be filed if no probation
officer’s report has been filed. The attorney for the defendant and
the law enforcement agency that investigated the case may
likewise file with the clerk of the court statements of their views
respecting the defendant and the crime of which he or she was
convicted. Immediately after the filing of those statements and
18
In Cook, a 17-year-old juvenile offender convicted in 2007
and sentenced to life with the possibility of parole and five
consecutive terms of 25 years to life filed a petition for writ of
habeas corpus in which he sought a Franklin proceeding to make
a record of mitigating evidence based on his youth. (Cook, supra,
7 Cal.5th at p. 447.) Our Supreme Court held that “an offender
entitled to a hearing under sections 3051 and 4801 may seek the
remedy of a Franklin proceeding even though the offender’s
sentence is otherwise final.” (Cook, at p. 451) The court went on
to hold that the appropriate vehicle for such relief in the first
instance is a motion filed in superior court pursuant to section
1203.01 and not a petition for writ of habeas corpus. (Id. at
pp. 457–458). In so holding, the court explained that section
1203.01 “gives the trial court authority to conduct an evidence
preservation proceeding as envisioned in Franklin” for juvenile
offenders whose convictions are final. (Cook, at p. 452.) Indeed,
“[t]he purpose of section 1203.01 parallels that of a Franklin
proceeding,” and nothing in the statute prohibits a trial court
from conducting a Franklin-style evidence preservation
proceeding at any time after conviction. (Id. at pp. 453–454.)
reports, the clerk of the court shall mail a copy thereof, certified
by that clerk, with postage prepaid, addressed to the Department
of Corrections and Rehabilitation at the prison or other
institution to which the person convicted is delivered. The clerk
shall also mail a copy of any statement submitted by the court,
district attorney, or law enforcement agency, pursuant to this
section, with postage prepaid, addressed to the attorney for the
defendant, if any, and to the defendant, in care of the
Department of Corrections and Rehabilitation, and a copy of any
statement submitted by the attorney for the defendant, with
postage prepaid, shall be mailed to the district attorney.”
19
Cook did not address a juvenile offender’s right to seek the
remedy of a Franklin proceeding on direct appeal when the
defendant simply failed to exercise his or her right to the
proceeding in the trial court. Nor did the high court hold that a
motion under section 1203.01 is an appropriate means of
obtaining Franklin relief for a juvenile offender whose conviction
is not final. Rather, recognizing the importance of Franklin’s
evidence preservation function in the youth offender parole
eligibility scheme established under sections 3051 and 4801, the
Cook decision merely identified the procedural mechanism by
which an offender serving a final sentence may return to court to
obtain the functional equivalent of a Franklin proceeding.
Appellant’s conviction, before us on direct appeal, is not
final. And appellant will be entitled to a youth offender parole
hearing in the 25th year of his incarceration. Yet the Attorney
General would have us deny appellant’s request for a Franklin
remand and require him to file a separate motion under section
1203.01 seeking the exact same relief. The superior court would
have no discretion to deny such a motion, for as Cook noted, “it
would be improper for the court to preclude a juvenile offender’s
chance to supplement the record with information relevant to his
eventual youth offender parole hearing.” (Cook, supra, 7 Cal.5th
at p. 453.)
Thus, requiring such an additional procedural step in this
case would serve no purpose other than to delay the information
collection and preservation proceeding to which appellant is
entitled under both Franklin and Cook. Under such
circumstances, the interests of justice dictate that the cause be
remanded to permit appellant to make a record of information
relevant to a future youth offender parole hearing under section
20
3051 in accordance with Franklin.8 (See § 1260 [an appellate
court “may, if proper, remand the cause to the trial court for such
further proceedings as may be just under the circumstances”].)
VI. The Abstract of Judgment Must Be Amended
The abstract of judgment incorrectly reflects that appellant
was sentenced to life without the possibility of parole for each
count of attempted murder. In fact, appellant was sentenced to
128 years to life as stated by the court in its oral pronouncement
of judgment and reflected in the minute order.
“When there is a discrepancy between the oral
pronouncement of judgment and the minute order or the abstract
of judgment, the oral pronouncement controls.” (People v. Walz
(2008) 160 Cal.App.4th 1364, 1367, fn. 3; see also People v. Jones
(2012) 54 Cal.4th 1, 89 [“ ‘[a]n abstract of judgment is not the
judgment of conviction; it does not control if different from the
trial court’s oral judgment and may not add to or modify the
judgment it purports to digest or summarize’ ”].) Accordingly, the
abstract of judgment must be corrected to conform to the trial
court’s oral pronouncement of judgment.
8In this regard, we reject the reasoning of Medrano, supra,
40 Cal.App.5th 961, which held that a defendant who fails to take
the opportunity to make a record of mitigating youth-related
evidence at trial forfeits the right to seek remand for a Franklin
proceeding on appeal and must proceed by way of a section
1203.01 motion. (Id. at pp. 967–968 & fn. 9.)
21
DISPOSITION
The matter is remanded to the trial court to afford both
parties the opportunity to make a record of information relevant
to appellant’s eventual youth offender parole hearing under
Penal Code section 3051, as set forth in People v. Franklin (2016)
63 Cal.4th 261. The trial court is further directed to correct the
abstract of judgment to reflect appellant’s 128-years-to-life
sentence and to forward a certified copy of the abstract of
judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
22