Opinion
C083469
08-13-2018
THE PEOPLE, Plaintiff and Respondent, v. JIMMY LEE SIACKASORN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 07F11789)
In the previous appeal (People v. Siackasorn (Dec. 7, 2012, C065399), review granted in part & depub. Mar. 20, 2013, S207973, review dism. July 9, 2014 (Siackasorn)), we affirmed the jury's conviction of defendant Jimmy Lee Siackasorn for first degree special-circumstance murder and the jury's true finding on an allegation that defendant personally discharged a firearm causing death. However, we vacated defendant's sentence of life without the possibility of parole (LWOP) plus the consecutive 25-year-to-life term for the firearm enhancement and remanded the matter for resentencing. The majority opinion concluded the trial court erred under Miller v. Alabama (2012) 567 U.S. 460 (Miller), by applying a presumption in favor of an LWOP sentence.
On remand, the trial court resentenced defendant to LWOP plus a consecutive 25-year-to-life term for the firearm enhancement. Defendant now appeals from the sentence imposed on remand. He contends the trial court imposed cruel and unusual punishment in resentencing him to LWOP and erroneously concluded that he is irreparably corrupt. We reject this contention.
In supplemental briefing, defendant contends recent legislation requires remand in order for the trial court to consider striking the 25-year-to-life term for the firearm enhancement. The People concede the recent legislation applies retroactively to nonfinal judgments such as defendant's but argue remand is not required. We disagree with the People and will remand for a determination on the firearm enhancement.
We also find that pursuant to the Supreme Court's recent decision in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), we must conditionally reverse defendant's conviction and sentence and remand the case to the juvenile court for a determination of defendant's fitness for treatment within the juvenile justice system. (Welf. & Inst. Code, § 707.) If defendant is found unfit for juvenile court treatment, the conviction will be reinstated, and he will be subject to resentencing on the firearm enhancement consistent with this opinion. If juvenile court treatment is appropriate, the juvenile court is ordered to treat defendant's conviction and enhancement as juvenile adjudications and impose an appropriate juvenile disposition after a dispositional hearing.
Defendant was not quite 17 years old when he committed the murder.
By order filed March 23, 2018, the People were invited to submit a supplemental letter brief if they objected to remand for a fitness hearing. On March 27, 2018, the People filed a letter brief, acknowledging Lara and conceding a limited remand is required "[a]ssuming . . . that this court affirms the judgment in all other respects . . . ." This court's order also invited defendant to submit a letter brief in 10 days in response to the People's letter brief. We have received nothing from defendant.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are reiterated from our opinion in defendant's prior related appeal. (Siackasorn, supra, C065399, review granted in part, depub. & dism.)
The Underlying Crime
Defendant concedes that he shot and killed Deputy Sheriff Vu Nguyen on the afternoon of December 19, 2007.
On that December afternoon, Detective Nguyen and his partner in the Sacramento County Sheriff's Gang Suppression Unit, Detective Ed Yee, were ascertaining gang information while traveling in an unmarked, but well-known gang unit car (silver Nissan Maxima), when they noticed a young Asian male in front of Lucky Chanthalangsy's (Lucky) house, a known hangout for the Tiny Raskal Gang (TRG). The officers decided to contact the person.
The defense did not dispute that this person was defendant.
When the officers and the person spotted one another, the person started to walk away from them, and eventually sprinted away after Detective Yee drove into an oncoming traffic lane in pursuit. Detective Nguyen jumped out of the vehicle and chased the person on foot near Lucky's house, while Detective Yee continued the pursuit in the car.
Detective Yee saw Detective Nguyen jump a backyard fence and then lost contact with him. During this pursuit, Yee heard faint sounds, which he later concluded had been gunshots.
After not receiving a response from Detective Nguyen, Detective Yee got out of the car and climbed over some fences and onto a chicken coop, where he found Nguyen lying on his back. Nguyen had been shot three times—in the neck, in the abdomen, and in the lower back. All three injuries were potentially fatal. Nguyen's finger was on the trigger of his gun, but the gun had not been fired.
Lucky's father witnessed the foot chase and the shooting. He had told law enforcement that the victim did not have time to get his gun before being shot, but at trial he stated that it looked like the victim was reaching for his gun when a shot sounded and the victim fell down.
Defendant ran up to a couple after the shooting and asked them, without success, if they would give him a ride to the light rail station because he "just shot a cop."
Evidence involving defendant's state of mind and knowledge also included the following. It was commonly known in the area in which defendant was spotted that gang-unit police personnel drove silver or gray Nissan Maximas; this personnel was commonly referred to by gang members as "task force" or simply "task"; and defendant admitted that he was a TRG member. It was clear to Detective Yee that the person he pursued on the afternoon of the shooting had recognized Yee's car as a law enforcement vehicle. Shortly after the shooting, defendant told his cousin (a TRG member) that he had "bust[ed] on task," meaning he had shot a cop; defendant told another TRG member that he had shot a cop. On the day of the shooting, defendant had an outstanding warrant. There was evidence that Detective Nguyen, at the time of the shooting, had his police badge on a chain around his neck.
Additional evidence involving defendant's state of mind and knowledge included (1) incriminating statements that defendant made to a police photographer following a post-shooting police interview; (2) defendant's prior misconduct and accompanying threats to probation officers and to custodial staff while in juvenile custody; and (3) expert and lay opinion testimony on the TRG mindset concerning police officers.
As the police photographer asked defendant to position himself for a photograph, defendant blurted out, "That cop deserved it though." The photographer responded, "Excuse me?" and defendant repeated his statement. The photographer told defendant that he would be best served to say nothing. Defendant replied, "What are you going to beat my ass or something?" After more positioning and photographs, defendant added, "Lucky I didn't see you on the street. Would have shot your ass, too."
Not long thereafter, as the photographing proceeded, defendant stated, "Oh, that's the same cop that beat up the homie before anyways so he—he deserve what he got." Defendant also boasted of the violent acts he would commit while incarcerated.
The trial court admitted evidence of six incidents when defendant was in juvenile custody in which he physically lashed out or violated a rule, and when disciplined by custodial officers or probation officers, threatened to shoot or beat them. In some of these incidents, defendant threatened to take action "on the outs," i.e., when he was on the outside. In one incident, defendant had to be pepper sprayed after refusing to stop punching a wall. In another, he told a probation officer who had arrested him that the officer was lucky defendant did not know he was coming—"we would have had to . . . shoot it out."
Resentencing on Remand
In support of an LWOP sentence, the People filed a statement in aggravation, recounting in detail the evidence adduced at trial as well as the original sentencing proceedings. The People noted that even though defendant was roughly a month shy of his 17th birthday when he committed his crime, "[h]is street wise age was that of a sociopath bent on killing an officer," having announced his personal intent to do so on many occasions. The People also noted that the probation report recounted that defendant had been offered assistance during the previous three years in juvenile placements in the justice system but had chosen to continue his pattern of criminality. The People argued that the circumstances of the offense showed that defendant was the sole actor, no one pressured him, he bragged about his crime, and he had no remorse. The People claimed there was no evidence reflecting that defendant's youth played any role in the charges against him, his conviction, or the proceedings. The People argued there was no evidence reflecting that defendant could rehabilitate, having demonstrated a "perverse value system," an "entrenched mindset," an "unwilling[ness] to accept responsibility," a lack of remorse, and a consistent pattern of rejecting all efforts at rehabilitation.
Defendant filed a statement in mitigation, seeking 25 years to life rather than LWOP. He argued there is no basis for finding that he is the " 'rare juvenile offender whose crime reflects irreparable corruption.' " He included the psychological report by William Schouweiler, Ph.D., which was prepared 16 months before defendant's crime. Dr. Schouweiler diagnosed defendant as having a moderate to severe conduct disorder, with substance abuse and social problems, including allegations of physical abuse by his mother, living in an unsafe, gang-infested neighborhood, discord with teachers, and committing crimes leading to incarceration. Dr. Schouweiler believed defendant was gaining insight into his delinquent activities in that defendant said he was "mad at himself for acting out at the Boys Ranch and failing that program ([three] times) noting, 'I could have done the time and been out by now.' " Dr. Schouweiler recommended another Level "A" placement rather than sending defendant home or to juvenile hall, noting that defendant had been refused by the Level "B" placements used by the county. Dr. Schouweiler believed that defendant had "the ability to use treatment in helping him overcome social and behavioral deficits" but required a highly structured environment, close supervision, substance abuse treatment and anger management. Dr. Schouweiler recommended a psychiatric evaluation to determine whether medication would help defendant cope with anger and immaturity. Defendant argued that Dr. Schouweiler's report showed that defendant "sought the love and attention of his mother, who neglected and abused him; he sought refuge in peers from school and his neighborhood, where he was never accepted; and finally he sought out protection and attention through membership with the Tiny Rascal Gang, the members of which rebuffed him as well, showing no sense of loyalty or brotherhood, but rather treated [defendant] as a reject or an annoyance."
Defendant cited his small stature, attaching a series of booking photos, delayed development, early childhood trauma based on his father's death when defendant was an infant, his mother's alcoholism, neglect by his mother, growing up in an unsafe and gang-infested neighborhood, which included his grandfather and uncles—gang members—who went to prison for guns and drugs, and his juvenile commitments. He claimed he could not extricate himself from his abusive and dysfunctional home environment.
With respect to the circumstances of the offense, defendant claimed he wanted the approval of his gang and had been manipulated to hold the gun. Although he recognized his words and actions immediately after the offense "were appalling," he told a probation officer three months after being incarcerated that he would not " 'have done it if [he] knew that [the victim] was a cop,' " claiming there were a lot of drivebys in defendant's neighborhood and he mistook the officers in their tinted car as "Asians" who were going to shoot him.
Citing his youth, defendant claimed he had a significant disadvantage in dealing with officers, his attorney, and the criminal process. Due to his naive understanding of the system, defendant claims "he conducted himself by acting as though he was bragging and making admissions." Had he greater maturity, he might have been able to assist counsel in making a deal for 25 years to life instead of LWOP.
Defendant claimed there was evidence showing that he is capable of change and could be rehabilitated. He cited his completion of a youth program in 2003 and his adjustment to the program and staff, which was described as " 'satisfactory.' " Although he did not complete another program, his behavior was positive and he participated in therapy. He also cited Dr. Shouweiler's opinion that defendant had an ability to use treatment to overcome his deficits. Defendant claimed that for the majority of time he spent in juvenile hall, he was able to "program well," earning points, even though there were some days where he engaged in poor behavior, which included "talking back, kicking a door, [and] engaging in altercations." He cited a majority of entries on probation caseload worksheets from January 2004 through January 2008 as reflecting that he worked toward earning honor status. A June 2006 juvenile hall assessment indicated the 15-year-old defendant's " 'behavior has improved. He is currently on honor and has not lost any points this week,' " completing tasks with limited supervision.
In a psychological evaluation conducted on September 22, 2016, Paul G. Mattiuzzi, Ph.D., opined that defendant displayed "indications of insight and maturity consistent with a potential for future rehabilitation" and that he was "motivated to conform his behavior to society's expectations, more distinctly by extrinsic factors, rather than by intrinsic drives." Based on his assumption that defendant's behavior was the result of immaturity and not character pathology, Dr. Mattiuzzi further opined that defendant's corruption as a youth was "not total and that he is not irreparable." Dr. Mattiuzzi reached his opinions after considering defendant's responses during a three-hour interview and reviewing documentation, including statements in mitigation, attached exhibits, juvenile reports, Dr. Schouweiler's assessment, and this court's 2012 opinion. Dr. Mattiuzzi did not have defendant's "CDCR central file for review."
At the hearing on September 29, 2016, the trial court stated that the case had been remanded for resentencing "without any sentencing presumption in favor" of LWOP and that it was to exercise its discretion under factors set forth in Miller. The court noted that when it originally sentenced defendant, it had evidence of defendant's background and character as well as the facts underlying the offense and incorporated the information and statements that had been presented at that time. The court also noted additional briefing along with numerous exhibits, Dr. Mattiuzzi's report, and written statements from defendant's sister and mother had been filed since remand.
The prosecutor argued there was a "plethora of [Evidence Code section] 1101 evidence" excluded at trial under Evidence Code section 352. The prosecutor claimed the defense was "cherry picking" in relying upon the reports of Drs. Schouweiler and Mattiuzzi. The prosecutor noted the report of Dr. Pandero who opined defendant was dangerous because he had threatened to kill a police officer without "bravado, as simply a matter of fact." The reports of Drs. Schouweiler and Pandero were prepared at the same time.
The prosecutor argued defendant's behavior was not transient but was instead "well entrenched." Defendant had been in 12 prior facilities (placements and juvenile custody) for 836 days prior to the offense.
In his initial statements to police, defendant denied killing the officer and blamed someone else. He then exercised his right to remain silent. When he admitted that he committed the offense, he did so without remorse. The prosecutor argued defendant had "announced on several occasions" his intent to kill an officer and then committed "a well thought out and calculated crime with no aiders and abettors, a single actor." The prosecutor noted that defendant had been removed from his dysfunctional home numerous times. With overwhelming evidence of "coldblooded first degree murder of an officer," the prosecutor stated defendant would have never been offered anything less. The prosecutor noted that defendant had committed other offenses which was relevant to whether there was a possibility of rehabilitation.
The prosecutor referred to the victim impact statements, which were given at the original sentencing hearing, noting that the victim's brother was "devastated" that defendant had been given an opportunity to be resentenced. The prosecutor then read the statement of the victim's partner officer. The prosecutor commented that any remorse defendant felt was because he had lost his freedom, not because he had taken a life.
Defense counsel argued that when defendant killed the officer, defendant was immature because of his inability to extricate himself from his dysfunctional family and gang lifestyle. Defense counsel asserted that defendant was not that rare juvenile offender who deserved LWOP but instead was amenable to rehabilitation as Drs. Shouweiler and Mattiuzzi opined.
The court (the same judge who presided over the trial and original sentencing) recalled the evidence adduced at trial "very well" and the information and circumstances considered at the original sentencing hearing. The court incorporated its observations made at the original sentencing hearing, by reference, into resentencing. The court stated it had a full understanding of the Miller factors and that its evaluation was not based on any one factor "but on a global determination based on all of the Miller factors and factors appropriate to the Court's exercise of discretion in a sentencing case." The court considered defendant's age and its hallmark features and his "very poor and dysfunctional" home environment, gang influences, and interactions with law enforcement and the juvenile justice system. Despite these interactions, the court stated that defendant's course was not reset but rather became "a more entrenched rejection of society's moral code and the authority of law." The court found that because of defendant's involvement with the juvenile justice system, defendant was, at the time of the offense, "very street wise and knowledgeable" and, as argued by the prosecutor, it was "highly unlikely in a very strong evidentiary case for first degree special-circumstance killing of law enforcement, that there would be a proffer of any lesser offense and/or negotiated disposition." The court did not find that "anything [had been] overlooked by the defense based on [defendant's] youth." The court noted that defendant was armed, acted alone, and there was no evidence that he was aided and abetted; instead, the evidence showed that defendant "specifically intended to, and did with premeditation and deliberation and while acting alone, kill [the victim]."
With respect to rehabilitation, the court determined that defendant had rejected and strongly resisted all previous attempts at rehabilitation and developed over the years a "deep and utter disdain" towards those attempts. The court rejected any suggestion that defendant acted in a spontaneous way in committing the crime and found that "his thought process had had sufficient maturation and had sufficient exposure and had had sufficient opportunities to reconsider the course that he had embarked on when he was 12." The court stated, "[I]f anything, his ideology and his moral compass was becoming more and more entrenched," noting that when he had been in custody, he absconded at every opportunity. He threatened a probation officer who had arrested defendant as "lucky that he caught him off guard, otherwise he would have been killed." The court noted that at the time of the offense, defendant was an abscond from custody, was in gang territory, knew what gang officers looked like, knew he was known to officers, and chose to be armed. The court concluded that defendant "is that individual for whom life without the possibility of parole is the appropriate sentence," commenting that defendant committed a "calculated and coldblooded murder," conduct which was not transient, not the product of immaturity, and not due to pressure. The court imposed LWOP for the first degree special-circumstance murder and a consecutive 25-year-to-life term for the firearm enhancement.
DISCUSSION
1.0 LWOP Sentence Imposed On Remand
Defendant contends his LWOP sentence constitutes cruel and unusual punishment in view of the undisputed evidence showing that during his years of incarceration, he has matured and remained free of disciplinary problems. He claims the trial court erroneously found that he is irreparably corrupt. The People respond that the trial court considered all relevant factors, and its conclusion is supported by the record. We agree with the People.
As stated in People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez), "Miller discussed a range of factors relevant to a sentencer's determination of whether a particular defendant is a ' "rare juvenile offender whose crime reflects irreparable corruption." ' [Citation.] . . . [T]he high court in Miller provided a 'recap' of those factors, grouping them into five categories. [Citations.] We understand Miller to require a sentencing court to admit and consider relevant evidence of the following:
"First, a court must consider a juvenile offender's 'chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.' [Citations.] Miller observed that ' "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds," ' and that 'those findings—of transient rashness, proclivity for risk, and inability to assess consequences—both lessened a child's "moral culpability" and enhanced the prospect that, as the years go by and neurological development occurs, his " 'deficiencies will be reformed.' " ' [Citations.] Miller further noted that 'the science and social science supporting [these] conclusions have become even stronger' in recent years. [Citation.]
"Second, a sentencing court must consider any 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.' [Citation.] Relevant 'environmental vulnerabilities' include evidence of childhood abuse or neglect, familial drug or alcohol abuse, lack of adequate parenting or education, prior exposure to violence, and susceptibility to psychological damage or emotional disturbance. [Citation.]
"Third, a court must consider any evidence or other information in the record regarding '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.' [Citations.] Also relevant is whether substance abuse played a role in the juvenile offender's commission of the crime. [Citation.]
"Fourth, a court must consider any evidence or other information in the record as to 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. [Citations.]' [Citation.]
"[Fifth, and] [f]inally, a sentencing court must consider any evidence or other information in the record bearing on 'the possibility of rehabilitation.' [Citations.] The extent or absence of 'past criminal history' is relevant here. [Citation.] [¶] . . . [¶]
"In sum, we hold that the trial court must consider all relevant evidence bearing on the 'distinctive attributes of youth' discussed in Miller and how those attributes 'diminish the penological justifications for imposing the harshest sentences on juvenile offenders.' [Citation.] To be sure, not every factor will necessarily be relevant in every case. For example, if there is no indication in the presentence report, in the parties' submissions, or in other court filings that a juvenile offender has had a troubled childhood, then that factor cannot have mitigating relevance. But Miller 'require[s] [the sentencer] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.' " (Gutierrez, supra, 58 Cal.4th at pp. 1388-1390.)
"The question is whether [a juvenile offender] can be deemed, at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter society, notwithstanding the 'diminished culpability and greater prospects for reform' that ordinarily distinguish juveniles from adults." (Gutierrez, supra, 58 Cal.4th at p. 1391.)
Here, the trial court considered the relevant factors and imposed LWOP, concluding defendant was "unfit ever to reenter society." (Gutierrez, supra, 58 Cal.4th at p. 1391.) We reject defendant's claim that his LWOP sentence amounts to cruel and unusual punishment.
A sentence violates the Eighth Amendment proscription against cruel and unusual punishment only if it is grossly disproportionate to the crime. (Graham v. Florida (2010) 560 U.S. 48, 60 .) "A court must begin by comparing the gravity of the offense and the severity of the sentence. [Citation.] '[I]n the rare case in which [this] threshold comparison . . . leads to an inference of gross disproportionality' the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions." (Ibid.)
The LWOP sentence in this case is not disproportionate for defendant's crime of first degree murder with special circumstances. LWOP may be "an unconstitutional penalty for . . . juvenile offenders whose crimes reflect the transient immaturity of youth." (Montgomery v. Louisiana (2016) 577 U.S. ___, ___ [193 L.Ed.2d 599, 619-620], judg. vacated and cause remanded sub nom. Louisiana v. Montgomery (La. 2016) 194 So.3d 606 [remanded to district court for resentencing].) As the trial court found, defendant's crime did not reflect the transient immaturity of youth but instead the entrenched hatred of authority, law enforcement officers in particular. Defendant has failed to demonstrate that his LWOP sentence is disproportionate to his individual culpability given his history and the nature of his crime.
The trial court was aware it had discretion to impose 25 years to life or LWOP and that LWOP was reserved for the " 'rare juvenile offender whose crime reflects irreparable corruption.' " (Miller, supra, 567 U.S. at pp. 479-480.) In imposing LWOP, the court did not abuse its discretion.
"In reviewing for abuse of discretion, 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.' " ' " (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Defendant was a month shy of his 17th birthday when he committed the coldblooded murder of an officer who was in the performance of his duties. The court noted defendant's age but determined defendant was street wise and knowledgeable. Upon his arrest, defendant denied killing the officer and blamed someone else. When he did admit committing the offense, he had no remorse. In fact, he bragged that he had killed an officer. He had previously threatened to kill custody officers and probation officers, and threatened to kill a police photographer after defendant's arrest for the murder.
Defendant complains the prosecution claimed defendant was a sociopath or had an antisocial personality disorder but failed to present any expert evidence in support of such claim. For example, in its statement in aggravation, the prosecution argued that defendant's "street wise age was that of a sociopath bent on killing an officer" and that defendant "was offered assistance, but made a choice to continue on his well-entrenched pattern of criminality with an almost sociopathic consistency." The prosecutor was comparing defendant's conduct to that of a sociopath, not that defendant was one. Further, defendant cites no authority in support of his argument on appeal. --------
Although defendant had a dysfunctional family and home environment, he had been provided numerous opportunities within the juvenile system but his conduct continued. Defendant had been an abscond from custody when he murdered the victim.
As the court found, there is no evidence or information suggesting defendant's youth had any effect on how he was charged or whether he was somehow disadvantaged in the criminal proceedings.
Defendant contends the trial court completely ignored postconviction information suggesting rehabilitation was possible. Defendant cites his self-serving statements to Dr. Mattiuzzi. Defendant claimed he had been confined in Pelican Bay, a Level 4 institution, for six years with "zero 115 disciplinary reports, remained in the general population, never was sent to administrative segregation and was never single-celled." Defendant claims on appeal that he "progress[ed] sufficiently to be moved to a less secure prison." Dr. Mattiuzzi noted in his report that when he interviewed defendant on September 22, 2016, defendant had "just arrived about three weeks earlier at CSP-Solano, a Level 3 institution." Dr. Mattiuzzi reported that defendant claimed in the interview that "he has been able to lower his classification score to 57, or three points below the 60 point cut-off between Level 3 and Level 4." Defendant also cites his statements to Dr. Mattiuzzi that he had been treated " 'really good' both at CSP-Solano and at Pelican Bay," "did not have any complaints about incarceration and did not express any negative attitudes towards custody staff."
Defendant cites other statements to Dr. Mattiuzzi. When asked to define remorse, defendant responded, "[D]o I have emotions about my case or the fact that it was wrong?" Dr. Mattiuzzi asked if defendant had emotions about his case and defendant replied, "[N]ow I do, I feel real bad . . . I do know it was wrong . . . I think I have remorse." Defendant added, "[I]n the beginning, I didn't care what anybody thought—now I feel bad for what I put the victim's family through and what I put my family through," "I think about them a lot—I know how much I hurt them . . . I think I know what they're feeling, devastated still, heartbroken," "it's something I can feel . . . I'm sorry about it . . . before, I didn't care—I've learned to care about what people think and feel." (Italics omitted.)
Dr. Mattiuzzi described defendant's statements as statements of "guilt, shame and regret, but not mature remorse." Defendant's statements about his behavior while in postconviction custody were made on September 22, 2016, to Dr. Mattiuzzi, just days before resentencing on September 29, 2016. No CDCR inmate records were presented to Dr. Mattiuzzi for his review. No declarations from Pelican Bay custodial staff were offered by the defense to substantiate defendant's claims.
At the beginning of the resentencing hearing, the court noted additional briefing along with numerous exhibits including Dr. Mattiuzzi's report had been filed since remand. And after argument prior to ruling, the court stated it had reviewed the materials submitted. While a trial court is required to consider evidence of a defendant's postconviction rehabilitation (People v. Lozano (2016) 243 Cal.App.4th 1126, 1137-1138), defendant has failed to demonstrate that the court ignored Dr. Mattiuzzi's report and defendant's statements therein. The court stated it considered the "[e]vidence bearing on rehabilitation" including "statements" and "character information from the family." The court concluded defendant's "rejection of all interventions of the juvenile justice system speak towards his strong resistance towards any true rehabilitation or any true sense of remorse." The court did not abuse its discretion and did not impose cruel and unusual punishment.
2.0 The Firearm Use Enhancement
The trial court imposed a consecutive 25-year-to-life term for the firearm enhancement (§ 12022.53, subd. (d)). Defendant contends he is entitled to the ameliorative benefit of the recent amendment to section 12022.53, which allows the sentencing court to exercise discretion under section 1385 to strike or dismiss the firearm use enhancement.
When the trial court imposed sentence, the firearm use enhancement was mandatory and the trial court did not have any discretion to strike it. (Former § 12022.53, subd. (h) ["Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provision of this section."].) Effective January 1, 2018, section 12022.53, subdivision (h) now allows a court to exercise discretion under section 1385 to strike or dismiss the enhancement imposed under that section: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Sen. Bill No. 620 (2017-2018 Reg. Sess.), Stats. 2017, ch. 682, § 2.)
Generally, an amendment to the Penal Code is not retroactive but an exception applies when an amendment reduces the punishment for a particular crime or gives the sentencing court discretion to impose a lower sentence and the judgment is not yet final. (§ 3; People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740.) The People concede that the amendment applies retroactively to defendant's case because it is not yet final.
We agree. Nothing in the text of Senate Bill No. 620, which amended section 12022.53, suggests the Legislature intended the amendment to apply prospectively only. Thus, the amendment applies to defendant's appeal.
The People argue remand is not necessary in view of the court's comments in imposing LWOP. We disagree.
In imposing the firearm enhancement at the original sentencing hearing, the trial court imposed a 25-year-to-life term "pursuant to Penal Code section 12022.53[, subdivision] (d)." Just prior to imposing the same sentence on remand, the trial court commented as follows: "I feel very strongly that the only just sentence is for the Court to find in this case that [defendant] is that individual for whom life without the possibility of parole is the appropriate sentence. [¶] I so find based on a careful review of all the factors in this case, and I will so order in resentencing him that for the crime of first degree special-circumstance murder, that he be imprisoned for life without the possibility of parole." The trial court then concluded with its imposition of sentence for the firearm enhancement with one brief comment: "And, . . . for the additional enhancing allegation, [defendant] receive the sentence, under law, of 25 [years] to life consecutive." (Italics added.)
The trial court was clear that defendant should serve an LWOP sentence and such a sentence was imposed. On the other hand, its short statement upon imposing sentence for the firearm enhancement, including the phrase "under law," reflects the court's acknowledgment that it was constrained by the then mandatory nature of that sentence. We will remand since the record does not clearly reflect that the court would not have exercised its discretion to strike or dismiss the section 12022.53, subdivision (d) enhancement had it been possible to do so at the time of the original sentencing and resentencing. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13; see also Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
3.0 Proposition 57
Proposition 57, the Public Safety and Rehabilitation Act of 2016, was approved by California voters at the November 8, 2016 General Election and took effect the next day. We conclude that the passage of Proposition 57 requires remand of defendant's case for a determination by the juvenile court of whether his case should proceed in juvenile or adult court. Lara, supra, 4 Cal.5th 299 determined the requirement to conduct a transfer hearing in juvenile court in the first instance applies to a defendant charged in adult court prior to the effective date of Proposition 57, concluding the inference of retroactivity first described in In re Estrada, supra, 63 Cal.2d 740 applied to extend the benefits of Proposition 57 to every case to which it could constitutionally apply. (Lara, supra, 4 Cal.5th at pp. 303-309.) Lara also approved of the procedure implemented by People v. Vela (2017) 11 Cal.App.5th 68 [review granted, opinion vacated, and transferred for reconsideration Feb. 28, 2018, S242298] as "readily understandable" and capable of "implement[ation] . . . without undue difficulty." (Lara, supra, 4 Cal.5th at p. 313.)
Thus, defendant is entitled to what was previously referred to as a "fitness hearing" in juvenile court to determine whether his case should proceed through the juvenile justice system or be transferred back to adult court. We will conditionally reverse defendant's conviction and sentence and transfer defendant's case to the juvenile court for a transfer hearing. (Welf. & Inst. Code, § 707.) If the juvenile court determines it would have transferred the case to adult court, then defendant's case will be transferred to adult court for further proceedings consistent with this opinion. (Welf. & Inst. Code, § 707.1, subd. (a).)
Alternatively, if the juvenile court finds that it would not have transferred defendant to adult court, it shall treat defendant's conviction and enhancement as juvenile adjudications and impose an appropriate disposition after a hearing.
DISPOSITION
The judgment is conditionally reversed. The matter is remanded to the juvenile court with directions to conduct a transfer hearing wherein the court will determine defendant's fitness for treatment within the juvenile justice system (Welf. & Inst. Code, § 707) no later than 90 days from the filing of the remittitur. If the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction, the judgment shall be reinstated. The trial court shall then conduct a limited hearing to consider whether to exercise its discretion to strike the Penal Code section 12022.53, subdivision (d) enhancement pursuant to Penal Code section 1385.
If the juvenile court determines that it would not have transferred defendant to a court of criminal jurisdiction, then defendant's criminal conviction and enhancement will be deemed to be juvenile adjudications. The juvenile court is then to conduct a dispositional hearing.
BUTZ, J. We concur: HULL, Acting P. J. MURRAY, J.