People v. Sandoval CA2/7

Filed 9/28/20 P. v. Sandoval CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B297802
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA077068)
v.
LUIS MIGUEL SANDOVAL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Richard R. Romero, Judge. Reversed in part
and remanded with directions, appeal dismissed in part.
Jenny M. Brandt, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Susan Sullivan Pithey,
Acting Supervising Deputy Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney and Stephanie A.
Miyoshi, Deputy Attorney General, for Plaintiff and Respondent.
____________________
Luis Sandoval appeals from the trial court’s order denying
his request for a hearing under People v. Franklin (2016) 63
Cal.4th 261 (Franklin) and Penal Code section 30511 and his
request for the court to exercise its discretion to strike a firearm
enhancement under section 12022.53. Sandoval contends the
trial court erred in denying his request for a Franklin hearing
because he was 19 years old at the time he committed the
“controlling offense” and he received a sentence qualifying him
for a youth offender parole hearing under section 3051. Sandoval
also argues that, although the recent amendments to section
12022.53 apply only to cases that are not final, the court violated
his right to equal protection by denying his request for a
resentencing hearing because there is no rational basis to
distinguish between cases that are final and those that are not.
We remand for a Franklin proceeding and dismiss the appeal
from the order denying Sandoval’s request for resentencing.
FACTUAL AND PROCEDURAL HISTORY
On January 6, 2008, when he was 19 years old, Luis
Sandoval, had a verbal altercation with three men in a bar in
Long Beach. After he returned to the bar with a gun, during a
fight with the same three men, Sandoval’s “gun went off,”
wounding two of the three men.
The People charged Sandoval with attempted murder
(§§ 187, 664; count 1); two counts of assault with a firearm (§ 245,
subd. (a)(2); counts 2 and 3); carrying a concealed firearm
(§ 12025, subd. (a)(2); count 4); unlawful possession of a firearm
(§ 12021, subd. (e); count 5); and second degree commercial
1 Statutory references are to the Penal Code.
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burglary (§ 459; count 6). The People alleged Sandoval
personally and intentionally used and discharged a firearm in the
attempted murder within the meaning of section 12022.53,
subdivisions (b) and (c); used a firearm in the assaults and
burglary within the meaning of section 12022.5, subdivision (a);
and used a firearm in the burglary within the meaning of section
12022.53, subdivision (c). The People further alleged that
Sandoval committed all the offenses for the benefit of, at the
direction of, or in association with a criminal street gang with the
intent to promote, further, or assist in criminal conduct by gang
members. (§ 186.22, subd. (b)(1).) The jury acquitted Sandoval
on one count of assault with a firearm (count 3), convicted
Sandoval on all other counts, and found true all allegations. For
attempted murder, the trial court sentenced Sandoval to life in
prison, plus 10 years for the gang enhancement (§ 186.22, subd.
(b)(1)) and 20 years for the firearm enhancement (§ 12022.53,
subd. (c)). The trial court imposed a determinate term of 11 years
8 months for the remaining offenses and enhancements.
On April 28, 2010, this court affirmed Sandoval’s conviction
and remanded the case for resentencing based on the trial court’s
various errors in sentencing. (People v. Sandoval (Apr. 28, 2010,
B214188 [nonpub. opn.].)
On September 28, 2010, the trial court modified Sandoval’s
sentence for attempted murder (count 1) to 15 years to life, plus
20 years for the firearm enhancement (§ 12022.53, subd. (c)) and
for carrying a concealed weapon (count 4) to two years, plus three
years for the gang enhancement (§ 186.22, subd. (b)(1).) The trial
court stayed the sentences for unlawful possession of a firearm
and commercial burglary (counts 5 and 6) pursuant to section
654.
3
On February 27, 2019, pursuant to People v. Franklin,
supra, 63 Cal.4th 261 and section 3051, Sandoval filed a petition
seeking a hearing to make a record of information relevant to his
future youth offender parole hearing. In his petition, Sandoval
also sought a new sentencing hearing to give the trial court an
opportunity to exercise its discretion to strike the firearm
enhancements in the furtherance of justice under section
12022.53.2
On March 4, 2019, the trial court denied Sandoval’s
petition.
Regarding Sandoval’s request for a Franklin hearing, the
trial court ruled, “All issues regarding a meaningful youthful
parole eligibility hearing must be filed in the district where the
defendant is located or where the hearing is held. . . . As
sentenced, defendant is entitled to a parole eligibility hearing
after 26 years, 8 months. Under PC 3051, he is entitled to a
youth offender parole eligibility hearing after 25 years, this slight
difference does not trigger a need for a Franklin hearing.”
As to Sandoval’s request for resentencing, the trial court
ruled “the statute allowing dismissal of gun enhancements is not
retroactive therefore it does not apply to defendant’s case, which
has reached a final judgment.”
Sandoval timely appealed.
2 Sandoval also asked the trial court to strike the three-year
gang enhancement added to the sentence for carrying a concealed
firearm (count 4). Sandoval does not pursue this request on
appeal.
4
DISCUSSION
A. Sandoval Is Entitled to a Franklin Hearing on
Remand
In a series of decisions, the United States and California
Supreme Courts have curtailed imposition of sentences of life
without parole (LWOP) on juvenile offenders, recognizing the
lessened culpability and greater prospects for reform that
distinguish juvenile from adult offenders. In Graham v. Florida
(2010) 560 U.S. 48 (Graham), the United States Supreme Court
held the imposition of an LWOP sentence on a juvenile offender
who committed a nonhomicide offense violated the Eighth
Amendment’s prohibition on cruel and unusual punishment.
(Graham, at pp. 68, 74.) In Miller v. Alabama (2012) 567 U.S.
460, 477 (Miller), the high court extended Graham, holding the
imposition of a mandatory LWOP sentence on a juvenile in a
homicide case also violated the Eighth Amendment. Relying on
Graham and Miller, in People v. Caballero (2012) 55 Cal.4th 262,
268 (Caballero), the California Supreme Court held the Eighth
Amendment bars “sentencing a juvenile offender to a term of
years with a parole eligibility date that falls outside the juvenile
offender’s natural life expectancy.”
The Legislature enacted sections 3051 and 4801 “to bring
juvenile sentencing in conformity with Miller, Graham, and
Caballero.” (People v. Franklin, supra, 63 Cal.4th at p. 268;
accord, People v. Sepulveda (2020) 47 Cal.App.5th 291, 298.) As
originally enacted, section 3051 authorized a hearing by the
Board of Parole Hearings (Board) “for the purpose of reviewing
the parole suitability of any prisoner who was under 18 years of
age at the time of his or her controlling offense.” (Former § 3051,
subd. (a)(1).) Section 3051 requires the Board to provide “a
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meaningful opportunity to obtain release” by conducting the
youth offender parole hearing during the 15th, 20th, or 25th year
of a juvenile offender’s incarceration, depending on the offender’s
sentence. (§ 3051, subds. (a)(2)(B), (b)(1)-(3), & (e); accord,
Franklin, supra, 63 Cal.4th at p. 277.) Section 4801, subdivision
(c), provides the Board “shall 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,”
when reviewing an offender’s parole eligibility pursuant to
section 3051.
In Franklin, the Supreme Court interpreted sections 3051
and 4801 to require a youth offender have a “sufficient
opportunity to make a record of information relevant to his
eventual youth offender parole hearing.” (Franklin, supra, 63
Cal.4th at p. 284; accord, In re Cook (2019) 7 Cal.5th 439, 451
[“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”].) The goal of the Franklin
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.’” (Franklin, at p. 284.) The Franklin court remanded for the
trial court to determine whether the defendant had a sufficient
opportunity to create a record, and if not, to “receive submissions
and, if appropriate, testimony.” (Ibid.)
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Effective January 1, 2018, the Legislature amended section
3051 to authorize a youth offender parole hearing for all
offenders who were 25 years old or younger at the time of the
“controlling offense.” (§ 3051, subd. (a)(1).) In Cook, supra, 7
Cal.5th 439, the Court held for inmates, such as Sandoval, “who
seek to preserve evidence following a final judgment, the proper
avenue is to file a motion in superior court under the original
caption and case number, citing the authority of section 1203.01
and today’s decision. The motion should establish the inmate’s
entitlement to a youth offender parole hearing and indicate when
such hearing is anticipated to take place, or if one or more
hearings have already occurred.” (Id. at p. 458.) The Court in
Cook further held, “The proceeding is not limited to the filing of
statements referenced in section 1203.01. Rather, consistent
with Franklin and the court’s inherent authority, the offender
shall have the opportunity to ‘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.’” (Id. at pp. 458-459.)
Sandoval argues he is entitled to a Franklin proceeding
because he was 19 years old when he committed the “controlling
offense” and “he was given a sentence that would render him
eligible for a youth offender parole hearing” under section 3051.3
3 Sandoval argues that he qualifies for a youth offender
parole hearing under section 3051, subdivision (b)(3), because the
trial court sentenced him to “a term greater than 25 years to life
in prison.” The People state it “appears” that section 3051,
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The People agree that Sandoval is entitled to a Franklin hearing
because “Sandoval established that he was 19 years old when he
committed the offense of which he was convicted, that he met the
youth offender criteria pursuant to Penal Code section 3051, and
that he had served 11 years of his sentence.” We agree and
remand for the trial court to provide Sandoval with an adequate
opportunity to make a record of information relevant to a future
youth offender parole hearing under section 3051. (See People v.
Rodriguez (2018) 4 Cal.5th 1123, 1131-1132 [“On remand, the
Court of Appeal shall direct the trial court to provide Rodriguez
and the prosecution an opportunity to supplement the record
with information relevant to Rodriguez’s eventual youth offender
parole hearing. [Citation.] 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”].)4
subdivision (b)(2), applies because “[Sandoval] received a term of
15 years to life for the attempted murder . . . .”
4 The trial court’s ruling that “all issues regarding a
meaningful youthful parole eligibility hearing must be filed in the
district where the defendant is located or where the hearing is
held,” is incorrect. Courts routinely remand matters for Franklin
proceedings to the original trial court. (See People v. Rodriguez,
supra, 4 Cal.5th at pp. 1131-1132; Cook, supra, 7 Cal.5th at
p. 460.)
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B. Because Sandoval’s Sentence Is Final, He Is Not
Entitled to the Benefit of New Legislation Authorizing
the Court To Strike a Prior Mandatory Firearm-Use
Enhancement
Before January 1, 2018, the sentencing court was not
permitted to strike or dismiss a mandatory firearm-use
enhancement imposed under sections 12022.53 or 12022.5. (See
§§ 12022.53, former subd. (h), 12022.5, former subd. (c).) Effective
January 1, 2018, the Legislature amended both sections to permit
the superior court in its discretion to strike or dismiss a firearm-
use enhancement in furtherance of justice. (See Sen. Bill No. 620
(2017-2018 Reg. Sess.) Stats. 2017, ch. 682; see also People v. Fox
(2019) 34 Cal.App.5th 1124, 1127; People v. Billingsley (2018) 22
Cal.App.5th 1076, 1080.)
Sandoval’s conviction became final following our affirmance
of his conviction in April 2010. Accordingly, he is not entitled to
the benefit of the new legislation. (People v. Johnson (2019) 32
Cal.App.5th 938, 942 [amendments to sections 12022.53 and
12022.5 apply to those whose convictions are not yet final or who
have obtained collateral relief by way of a state or federal habeas
corpus proceeding]; see People v. Hernandez (2019) 34
Cal.App.5th 323, 326; People v. Woods (2018) 19 Cal.App.5th
1080, 1091.)
The trial court therefore lacked jurisdiction to modify
Sandoval’s sentence. (People v. Johnson, supra, 32 Cal.App.5th
at p. 941; People v. Fuimaona (2019) 32 Cal.App.5th 132, 135
(Fuimaona). As such, Sandoval’s substantial rights were not
affected, and the order denying the petition is not appealable;
hence, the appeal must be dismissed. (See Fuimaona, at p. 135.)
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Although Sandoval acknowledges “that existing law
provides SB 620 only applies to persons whose cases are not yet
final,” he argues he is “entitled to relief because to deny him a
resentencing hearing is unconstitutional because there is no
compelling state interest, or rational basis, to treat [Sandoval]
differently” than persons whose cases are not yet final. However,
it is well established that equal protection does not require fully
retroactive application of a change in the law reducing
punishment for a crime. (People v. Floyd (2003) 31 Cal.4th 179,
191 (Floyd); see In re Kapperman (1974) 11 Cal.3d 542, 546
[“[t]he Legislature properly may specify that such statutes are
prospective only, to assure that penal laws will maintain their
desired deterrent effect by carrying out the original prescribed
punishment as written”]; People v. Kennedy (2012) 209
Cal.App.4th 385, 398 [“[a]s our Supreme Court has acknowledged
‘statutes lessening the punishment for a particular offense’ may
be prospective only without offending equal protection
principles”]; see also Baker v. Superior Court (1984) 35 Cal.3d
663, 668 [“‘[a] refusal to apply a statute retroactively does not
violate the Fourteenth Amendment’”].)
In People v. Hernandez, supra, 34 Cal.App.5th 323, the
court rejected an argument that “failure to apply full retroactivity
to [section 12022.5’s resentencing provisions] would result in an
equal protection violation.” (Id. at pp. 326-327.) The court held,
“A similar argument was rejected in In re Kapperman (1974) 11
Cal.3d 542, 546, 114 Cal.Rptr. 97, 522 P.2d 657, in which our
Supreme Court stated that statutes lessening the punishment for
specific offenses could be limited to prospective application in
order ‘to assure that penal laws will maintain their desired
deterrent effect by carrying out the original prescribed
10
punishment as written.’ Senate Bill No. 620 is an example of this
principle.” (Id. at p. 327.)
In Floyd, supra, 31 Cal.4th 179, the Supreme Court
determined that prospective application of the Substance Abuse
and Crime Prevention Act of 2000, which amended state law to
require that certain adult drug offenders receive probation
instead of incarceration, to defendants convicted after its effective
date did not violate equal protection principles. (Id. at pp. 188-
192.) In its analysis, the Court stated, “Defendant has not cited a
single case, in this state or any other, that recognizes an equal
protection violation arising from the timing of the effective date
of a statute lessening the punishment for a particular offense.
Numerous courts, however, have rejected such a claim−including
this court.” (Id. at p. 188.) The Court in Floyd reasoned, “‘[T]he
14th Amendment does not forbid statutes and statutory changes
that have a beginning, and thus to discriminate between the
rights of an earlier and later time.’” (Id. at p. 191); accord, People
v. Smith (2015) 234 Cal.App.4th 1460, 1467 [“‘statute
ameliorating punishment for particular offenses may be made
prospective only without offending equal protection, because the
Legislature will be supposed to have acted in order to optimize
the deterrent effect of criminal penalties by deflecting any
assumption by offenders that future acts of lenity will necessarily
benefit them’”].) The Legislature was not required to apply the
changes to Sandoval’s already final conviction.
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DISPOSITION
We remand for the trial court to provide the parties with an
opportunity to supplement the record with information relevant
to Sandoval’s youth offender parole hearing under Franklin,
supra, 63 Cal.4th 261 and section 3051. We dismiss the appeal
from the order denying Sandoval’s request for resentencing.
DILLON, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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