Opinion
D074508
10-04-2019
In re DONTE COROTHERS on Habeas Corpus.
Angela Bartosik, Chief Deputy Primary Public Defender and Whitney N. Antrim, Deputy Public Defender, for Petitioner. Xavier Becerra, Attorney General and Lynne G. McGinnis, Deputy Attorney General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT (San Diego County Super. Ct. No. SCN040304) ORIGINAL PROCEEDING in habeas corpus. Petition denied without prejudice, remanded. Angela Bartosik, Chief Deputy Primary Public Defender and Whitney N. Antrim, Deputy Public Defender, for Petitioner. Xavier Becerra, Attorney General and Lynne G. McGinnis, Deputy Attorney General, for Respondent.
In 1995, when he was 17 years old, Donte Corothers shot and killed a man and took his gun. The following year, a jury convicted him of first degree murder with a lying-in-wait special circumstance and the trial court sentenced him to life without the possibility of parole (LWOP), which was then the presumptive punishment under Penal Code section 190.5. Corothers petitioned for a writ of habeas corpus. He contended his sentence was unconstitutionally cruel and unusual and the trial court did not adequately consider mitigating circumstances of his youth in sentencing him. He asked this court to vacate his LWOP sentence and remand the matter for resentencing, or resentence him to 26 years to life in prison on the counts for which he received LWOP. Corothers further contended that because he was improperly sentenced to LWOP, Senate Bill No. 394, effective January 1, 2018, which made him eligible for release on parole during his 25th year of incarceration and entitled him to a youth offender parole hearing, did not cure the fundamental sentencing error.
Undesignated statutory references are to the Penal Code.
In a prior unpublished decision, we held Corothers's cruel and/or unusual punishment claims were moot by virtue of his entitlement to a youth offender parole hearing. We granted his habeas petition in part so as to afford him an evidentiary hearing to make a record of information relevant to that eventual youth offender parole hearing, and remanded the matter with directions that the trial court conduct such a hearing. The California Supreme Court granted a petition for review filed by the Department of Corrections and Rehabilitation and transferred the case back to us with directions to reconsider it in light of its decision in In re Cook (2019) 7 Cal.5th 439 (Cook). In accordance with the California Supreme Court's order, we reconsider the cause. We again conclude Corothers's cruel and unusual punishment claims are moot. However, we deny Corothers's petition for writ of habeas corpus without prejudice to him filing a motion for a proceeding under People v. Franklin (2016) 63 Cal.4th 261 (Franklin) as authorized by section 1203.01 and Cook, 7 Cal.5th 439.
FACTUAL AND PROCEDURAL BACKGROUND
We take some of the background facts from this court's opinion on Corothers's direct appeal. In 1995, Corothers and others agreed to kill Damon Dowell. Corothers was at the time a member of the Fruit Town Pirus criminal street gang and he felt Dowell had disrespected Corothers's girlfriend and his gang. Dowell was no longer active in gang membership. Corothers arranged for one of his friends to bring Dowell to a park, where Corothers shot Dowell twice in the back and twice in the head, then took Dowell's gun. The trial court sentenced Corothers to LWOP.
On appeal, this court directed the trial court to stay under section 654 Corothers's sentence on his robbery conviction but affirmed the judgment otherwise. (People v. Corothers (Jul. 17, 1998, D027946) [nonpub. opn.].) In that appeal, Corothers had argued the court abused its discretion by imposing an LWOP sentence because it relied on an inappropriate factor in imposing the aggravated sentence, and failed to consider valid mitigating factors. This court rejected the arguments, explaining that under section 190.5, LWOP was the presumptive punishment for a 16- or 17-year-old defendant convicted of first degree murder with special circumstances, unless the court found good reason to choose a less severe sentence. We pointed out the trial court was not required to cite an aggravating factor as the basis for its sentencing determination, and in imposing the sentence it had considered Corothers's young age and a probation report as well as a statement in mitigation identifying Corothers's age, insignificant prison record, and the absence of a record of violence.
In 2012, the U.S. Supreme Court decided Miller v. Alabama (2012) 567 U.S. 460 (Miller), and held the mandatory imposition of an LWOP sentence on a juvenile violated the Eighth Amendment's prohibition on cruel and unusual punishment absent consideration of the juvenile's "diminished culpability and heightened capacity for change . . . ." (Id. at pp. 477-479, see id. at p. 465.) The court did not foreclose the sentencing court's ability to impose an LWOP sentence for " 'the rare juvenile offender whose crime reflects irreparable corruption.' " (Id. at pp. 479-480; see also Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718, 734] (Montgomery) ["Miller . . . bar[red] life without parole . . . for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility"].)
Effective January 1, 2014, the California Legislature enacted Senate Bill No. 260 (2013-2014 Reg. Sess.), which granted a juvenile under 18 years of age a "youth offender parole hearing" during the 15th, 20th, or 25th year of his or her incarceration depending on the "controlling offense." (§ 3051, subds. (a), (b); see Cook, supra, 7 Cal.5th at p. 446.) The section required the parole board in the youth offender parole hearing to give the defendant a "meaningful opportunity to obtain release," at which 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." (§§ 3051, subds. (d), (e), 4801, subd. (c).) The law, however, excluded juveniles sentenced to LWOP. (§ 3051, former subd. (h).)
In January 2016, the United States Supreme Court in Montgomery held that Miller must be given retroactive application as it had announced a new "substantive rule of constitutional law." (Montgomery, supra, 577 U.S. at p. ___ [136 S.Ct. at pp. 734, 736].) The court also explained that "[g]iving Miller retroactive effect . . . does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. [Citation.] 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." (Id. at p. ___ ; see Cook, supra, 7 Cal.5th at p. 449.)
Two days after the court decided Montgomery, Corothers petitioned for a writ of habeas corpus in the superior court, arguing his sentence constituted cruel and/or unusual punishment under the federal and state Constitutions, and that he was entitled to resentencing in accordance with Miller, supra, 567 U.S. 460 as well as People v. Gutierrez (2014) 58 Cal.4th 1354, which construed Miller and section 190.5. (Gutierrez, at pp. 1360, 1387.) He argued his claims under Miller were cognizable on habeas corpus. He asked the court to vacate his sentence and remand for a resentencing hearing at which the court would consider the factors set forth in Miller and resentence him to a term of 25 years to life on the count for which he received LWOP.
Several months later, the California Supreme Court in Franklin, supra, 63 Cal.4th 261 held on a defendant's direct appeal that the recently enacted sections 3051 and 4801 mooted the defendant's constitutional challenge to his 50-year-to-life homicide sentence. (Id. at p. 268; see Cook, supra, 7 Cal.5th at p. 446.) The court reasoned that the new law "means that [defendant] is now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration. Such a sentence is neither LWOP nor its functional equivalent" (Franklin, at p. 284) and under the new laws his sentence remained valid, avoiding the Miller issues. (Cook, at p. 449.) Thus, "by operation of law, [defendant] is entitled to a parole hearing and possible release." (Franklin, at pp. 279-280; see also Cook, at p. 449.) Franklin authorized a postjudgment proceeding to effectuate the Legislature's intent, giving the parties " 'an opportunity . . . 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" . . . .' " (Cook, at p. 449, quoting Franklin, at p. 284.) "At the proceeding, '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.' " (Cook, at pp. 449-450.)
On January 1, 2018, Senate Bill No. 394 went into effect. (Stats. 2017, ch. 684, § 1.5, p. 5123.) With certain exceptions, the statute amended section 3051 so as to provide that "[a] person who was convicted of a[n] . . . offense that was committed before the person had attained 18 years of age and for which the sentence is life without the possibility of parole shall be eligible for release on parole by the [Board of Parole Hearings] during his or her 25th year of incarceration . . . . " (§ 3051, subd. (b)(4); see In re Jenson (2018) 24 Cal.App.5th 266, 277.)
In May 2018, the superior court denied Corothers's request for habeas relief, finding Corothers was eligible for parole. In August 2018, Corothers filed the present habeas petition, repeating the claims from his superior court habeas petition. We now reconsider his petition in light of Cook, supra, 7 Cal.5th 439.
Corothers does not explain the delay in the superior court's ruling on his petition. Nothing in the record accounts for the delay.
DISCUSSION
In their informal response to Corothers's August 2018 habeas petition, the People argued the petition was untimely and his state constitutional claim procedurally barred because it was not raised on direct appeal. The People do not repeat these arguments in the supplemental briefing they submitted after transfer.
Corothers contends his presumptive sentence of LWOP violates his rights under the Eighth Amendment of the federal Constitution as well as under the California Constitution because his sentencing judge did not consider the mitigating circumstances of his youth as required by Miller, supra, 567 U.S. 460 and People v. Gutierrez, supra, 58 Cal.4th 1354. He acknowledges that section 3051 now grants him a youth offender parole hearing at the 25th year of his incarceration, but he argues this law does not "cure the fundamental defects in his sentence" under Miller because he was "improperly sentenced to LWOP . . . ." According to Corothers, reliance on the new law makes him shoulder the burden of proof and persuasion at a subsequent parole hearing, and thus the law "turns Chapman [v. California (1967) 386 U.S. 18] error on its head." He argues the new law "heightens, rather than minimizes, the risk of disproportionate punishment," resulting in error like that found in Caldwell v. Mississippi (1985) 472 U.S. 320 because the superior court judge "refused to consider the Miller factors of youth or conduct a resentencing hearing in light of the fact [he] is now eligible for an eventual [youth offender parole hearing]." He also argues the new law leads to an "illusory promise of a meaningful opportunity for release . . . ." Corothers prays that this court vacate his LWOP sentence and remand the matter for resentencing, or resentence him to 25 years to life in prison on the counts for which he received his LWOP sentence.
Caldwell reversed a death sentence due to a prosecutor's argument that the jury should not view its verdict as the final word given appellate review. (Caldwell v. Mississippi, supra, 472 U.S. at p. 323.) The court explained "it is constitutionally impermissible [under the Eighth Amendment] to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." (Caldwell, at pp. 328-329; see also People v. Thompson (2016) 1 Cal.5th 1043, 1127.) In Thompson, the California Supreme Court pointed out that "later high court cases have suggested that Caldwell should not be given an expansive reading: 'Caldwell simply requires that the jury not be mis[led] into believing that the responsibility for the sentencing decision lies elsewhere.' " (Thompson, at pp. 1127-1128.) We decline to extend Caldwell's principles to circumstances where section 3051 entitles a juvenile offender to a youth offender parole hearing. --------
Because Corothers is eligible for a parole hearing under sections 3051 and 4801, Corothers's Eighth Amendment claim is moot, as is any claim under the California Constitution based on the same grounds. (See Cook, supra, 7 Cal.5th at p. 446; People v. Cornejo (2016) 3 Cal.App.5th 36, 68.) An issue is moot when, without fault of the opposing party, an event occurs that renders it impossible for this court to grant a prevailing defendant any effectual relief. (See People v. DeLeon (2017) 3 Cal.5th 640, 645.)
Section 3051 now caps the number of years that Corothers may be imprisoned before becoming eligible for release on parole. (Franklin, supra, 63 Cal.4th at p. 278.) Because the law entitles him to a youth offender parole hearing that includes a meaningful opportunity for release during his 25th year of incarceration, under Franklin and Montgomery, Corothers's sentence can no longer be characterized as life without the possibility of parole. (Cook, supra, 7 Cal.5th at p. 449; In re Kirchner (2017) 2 Cal.5th 1040, 1049, fn. 4.) Any Miller violation is remedied without the need for resentencing. (Cook, at p. 449; Franklin, at pp. 279-280.)
Corothers cites no supporting legal authority for his assertion that section 3051 fails to cure the defects in his sentence, which he characterizes as an "improper" LWOP sentence. Apart from his forfeiture of that point (People ex. rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 38), we agree with the Attorney General that the claim lacks merit. At the time the trial court sentenced Corothers in 1997, his LWOP sentence was authorized by section 190.5. But as of the filing of Corothers's petition, his sentence is no longer life without the possibility of parole.
Furthermore, the California Supreme Court in Cook, supra, 7 Cal.5th 439 has now held that a defendant like Corothers whose juvenile conviction is final is entitled to the remedy of an evidence preservation proceeding contemplated by Franklin (supra, 63 Cal.4th at p. 284). Cook explained that a Franklin remand is not dependent on the nonfinal status of the juvenile offender's conviction, rather, " '[t]he statutory text makes clear that the Legislature intended youth offender parole hearings to apply retrospectively, that is, to all eligible youth offenders regardless of the date of conviction.' " (Cook, at p. 450, quoting Franklin, at p. 278.) "By a parity of reasoning, an evidence preservation process should apply to all youthful offenders now eligible for such a parole hearing. As Franklin emphasized, the possibility that relevant evidence will be lost may increase as years go by. [Citation.] This reality is no less true for offenders whose convictions are final on direct appeal." (Cook, at p. 450.)
Cook held that defendants with final convictions could seek an evidence preservation proceeding under section 1203.01, the purpose of which "parallels that of a Franklin proceeding" (Cook, supra, 7 Cal.5th at p. 453), supplemented as necessary by the court's inherent authority under Code of Civil Procedure section 187 to craft necessary procedures. (Id. at pp. 455, 457-458.) Section 1203.01 "gives the trial court authority to conduct an evidence preservation proceeding as envisioned in Franklin" and Cook held it is a "plain, speedy, and adequate remedy at law that makes resort to habeas corpus unnecessary, at least in the first instance." (Cook, 7 Cal.5th at p. 452.)
Cook outlined the procedure: "For inmates like [Corothers] 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 [the court's decision in Cook, supra, 7 Cal.5th 439]. 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. The structure for the proceeding is outlined in Franklin, supra, 63 Cal.4th at page 284 . . . , and further informed by the youth-related factors set forth in section 4801, subdivision (c). 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.'
"Although Franklin mandates an opportunity for evidence preservation, 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.' [Citation.] The court may, for example, require an offer of proof regarding the evidence the offender seeks to present, so that it can determine whether such evidence is relevant to youth-related factors and meaningfully adds to the already available record. It may also determine whether testimony is 'appropriate' [citation], or if other types of evidentiary submissions will suffice. Finally, Franklin emphasized that the purpose of the proceeding was to allow the offender to assemble evidence 'at or near the time of the juvenile'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.' [Citation.] Some offenders who file these postjudgment motions in the trial court may have spent a decade or more in prison. Some may have even come before the Board for a youth offender parole hearing. The court may consider whether a Franklin proceeding is likely to produce fruitful evidence considering such factors as the passage of time and whether the offender has already benefitted from the factfinding procedures set forth in section 3051, subdivision (f)(1) and (2) with the assistance of appointed counsel [citation]. Additionally, some offenders may choose not to present certain forms of evidence, such as live testimony, or to forgo a Franklin proceeding altogether. Delving into the past is not always beneficial to a defendant. The opportunity for a Franklin hearing is just that: an opportunity." (Cook, supra, 7 Cal.5th at pp. 458-459.)
Because Corothers has a plain, speedy and adequate remedy at law via section 1203.01 as augmented by Code of Civil Procedure section 187, we deny his petition for writ of habeas corpus without prejudice to him seeking a Franklin proceeding as outlined above.
DISPOSITION
The petition for writ of habeas corpus is denied and the matter remanded to the trial court. The denial is without prejudice to Corothers's filing of a motion in the trial court for a Franklin evidence preservation proceeding under the authority of Penal Code section 1203.01 and Cook, supra, 7 Cal.5th 439.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. BENKE, J.