Filed 4/1/20

               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION SEVEN


THE PEOPLE,                        B289160

       Plaintiff and Respondent,   (Los Angeles County
                                   Super. Ct. No. LA078936)
       v.

TRAVIS SEPULVEDA,

       Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of
Los Angeles County, Martin L. Herscovitz, Judge. Affirmed with
directions.
      Barbara A. Smith, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Noah P. Hill and Daniel C.
Chang, Deputy Attorneys General, for Plaintiff and Respondent.
                       ____________________
      Travis Sepulveda was convicted following a jury trial of
one count of first degree murder, three counts of attempted
willful, deliberate and premeditated murder and one count of
shooting from a motor vehicle with true findings he had
personally discharged a firearm causing great bodily injury or
death when committing each of the offenses and the offenses had
been committed for the benefit of a criminal street gang. He was
sentenced to an aggregate indeterminate state prison term of
90 years to life.
      On appeal Sepulveda, who was 18 years old at the time of
the attempted murders and 21 years old when he committed
murder, contends the cause should be remanded for a hearing
pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin)
because his counsel stipulated, without his consent, to limit
information regarding youth-related mitigating factors to a
written submission following the sentencing hearing. That
procedure, he argues, violated his constitutional rights to due
process, to present a defense, to cross-examine witnesses and to
be present at a critical stage of the criminal proceeding.
Sepulveda also contends it was “per se ineffective assistance of
counsel” not to present any of the available mitigating evidence
                          1
at the sentencing hearing. We affirm.

1
      Sepulveda also argues, and the Attorney General agrees,
although the clerk’s minute order correctly records the court’s
oral pronouncement of judgment, the abstract of judgment does
not reflect that a consecutive sentence was imposed for the
attempted willful, deliberate and premeditated murder charged
in count 2 and that concurrent sentences were imposed for the
attempted willful, deliberate and premeditated murders charged
in counts 3 and 4. The abstract of judgment does state count 7,
shooting from a motor vehicle, was stayed pursuant to Penal
Code section 654. We order the abstract of judgment corrected.
(See People v. Mitchell (2001) 26 Cal.4th 181, 186-187 [appellate


                                2
      FACTUAL AND PROCEDURAL BACKGROUND
      1. The Commitment Offenses
      Testimony at trial established that on November 14, 2011
Sepulveda, a member of the West Side Reseda gang, and two
other gang members drove down a street in the territory of the
Canoga Park Alabama gang, one of the West Side Reseda gang’s
rivals. Sepulveda from the front passenger seat and his
confederate sitting in the rear seat fired weapons at a group of
people standing on the sidewalk, including Manual Hernandez,
Cesar Martinez and Angel Martinez. Hernandez and Cesar
Martinez were struck by the gunfire; both survived, but
Martinez’s injuries confined him to a wheelchair.
      On August 16, 2014 Sepulveda issued a gang challenge
during a party to John Medina, who was wearing a hat associated
with a rival gang. Sepulveda ordered Medina to take off his hat.
Medina refused and punched Sepulveda. Sepulveda pulled out a
gun and shot Medina and then shot Medina a second time as he
attempted to run away. Medina died from the two gunshot
wounds.
      Sepulveda did not testify and presented no defense at trial.
      On January 20, 2017 the jury convicted Sepulveda of the
premeditated murder of Medina (Pen. Code, §§ 187, 189,
subd. (a)), the attempted willful, deliberate and premeditated
murder of Hernandez, Cesar Martinez and Angel Martinez
(Pen. Code, §§ 187, 664, subd. (a)) and shooting from a motor
vehicle in connection with the November 14, 2011 incident (Pen.
Code, 12034, subd. (c)). The jury also found true special


court may correct clerical errors on its own motion or upon
application of the parties].)



                                3
allegations that Sepulveda or a principal had used and
discharged a firearm causing great bodily injury or death when
committing each of the offenses (Pen. Code, § 12022.53,
subds. (b), (c), (d) & (e)) and that each offense had been
committed for the benefit of, at the direction of, or in association
with a criminal street gang (Pen. Code, § 186.22).
      2. Sentencing Proceedings
      The People submitted a sentencing memorandum on
March 17, 2017. Citing a number of aggravating factors,
including that the crimes involved great violence and a high
degree of callousness (Cal. Rules of Court, rule 4.421(a)) and
Sepulveda’s prior convictions and sustained juvenile petitions
were of increasing seriousness (Cal. Rules of Court,
rule 4.421(b)(2)), and describing no circumstances in mitigation,
the People recommended imposition of an aggregate
indeterminate state prison term of 170 years to life. The
memorandum explained Sepulveda, who was 18 years old when
he committed the attempted murders and 21 years old when he
murdered Medina, would be entitled to a youth offender parole
hearing and eligible for release on parole under Penal Code
                                                     2
section 3051 after serving 25 years in state prison.
      Following several continuances of the sentencing hearing at
Sepulveda’s request, on July 18, 2017 the trial court appointed

2
       In 2017 the relevant portion of Penal Code section 3051
applied to individuals who were under 23 years old at the time of
his or her controlling offense. (Stats. 2015, ch. 471, § 1.)
Effective January 1, 2018 the provisions for youth offender parole
hearings were extended to individuals who had commited
specified crimes when they were 25 years old or younger.
(Stats. 2017, ch. 684, § 1.5.)



                                  4
Amy York, a capital mitigation investigation expert, to assist
Sepulveda’s counsel with preparation of material that would
ultimately be presented at Sepulveda’s youth offender parole
hearing, referred to by the court and counsel as a “Franklin
package.” On August 29, 2017 Sepulveda moved once again to
continue the sentencing hearing. His counsel explained he had
provided York with various documents relevant to her
investigation and she had interviewed Sepulveda, but York was
waiting for additional records and still needed to interview
Sepulveda’s relatives. York estimated she needed an additional
two months to complete her work. Sepulveda’s motion was
granted. The sentencing hearing was thereafter delayed several
more times while York continued her work. On February 1, 2018
Sepulveda’s counsel asked for a final continuance to February 15,
2018 for sentencing.
      At the outset of the hearing on February 15, 2018, the court
stated, “It was stipulated between the parties that you’re going to
submit to the court documentation on his eligibility, factors to be
considered for eligibility of parole, when he’s eligible for parole, at
a future date in the form of documentary evidence that would be
part of the court file and not subject to live testimony or cross-
examination.” Defense counsel responded, “That’s correct” and
estimated the material would be submitted in “about three weeks
or a month.” The prosecutor also confirmed the stipulation.
      After the court heard victim impact statements, it asked
defense counsel if he had anything to present. Counsel
responded, “Not at this time.”
      The court then commented, “The Legislature passed a law
that says that at some point, for anyone who is 25 years or
younger, is eligible for parole. There is nothing the court can do




                                  5
to prevent that eligibility. But based on what I know about
Mr. Sepulveda and his proven track record of violence, killing and
attempt to kill, he will be a danger for the rest of his life and
should never be released from custody.”
       The court sentenced Sepulveda to an aggregate
indeterminate state prison term of 90 years to life: 25 years to
life for the first degree murder of Medina, plus a consecutive term
of 25 years to life for the Penal Code section 12022.53,
                                                            3
subdivision (d), firearm enhancement related to that count; a
consecutive term of 15 years to life for the attempted willful,
deliberate and premeditated murder of Cesar Martinez, plus a
consecutive term of 25 years to life for the section 12022.53,
subdivision (d), firearm enhancement related to that count; and
concurrent terms of 40 years to life for the attempted willful,
deliberate and premeditated murders of Hernandez and Angel
Martinez with related firearm enhancements. Sentence for the
drive-by shooting was stayed pursuant to Penal Code section 654.
      On April 4, 2018 Sepulveda’s defense counsel filed a
lengthy memorandum on youth-related mitigating factors,
supported by psychological and educational assessments, school
                                                4
records and interviews with Sepulveda’s family. Neither

3
       Acknowledging it had discretion under newly enacted
legislation to strike the Penal Code section 12022.53 firearm
enhancements found true by the jury, the court stated, “[B]ased
on what I heard in this case and the defendant’s record of
possession of weapons and guns between the two incidents, I see
no reason in the interest of justice to strike it.”
4
      We take judicial notice of “Defense Counsel’s Brief and
Exhibits Relevant to Sentenced Defendant and Youth Offender
Parole Hearing,” and the superior court’s April 4, 2018 minute


                                6
Sepulveda nor the prosecutor was present in court when the
memorandum was filed. In his opening brief Sepulveda states
the material “indicated appellant’s childhood trauma and stress
contributed to his recklessness and disregard of consequences,
and made him vulnerable to gang associations.”
                         DISCUSSION
      1. Senate Bill No. 260, Franklin and Evidence Preservation
         Proceedings for Youth Offenders
      In Graham v. Florida (2010) 560 U.S. 48, 74 [130 S.Ct.
2011, 175 L.Ed.2d 825] (Graham) the United States Supreme
Court, emphasizing a juvenile offender’s “capacity for change and
limited moral culpability,” held it violated the Eighth
Amendment’s prohibition of cruel and unusual punishment to
impose a sentence of life without parole (LWOP) on a juvenile
                                       5
offender who did not commit homicide. Two years later in Miller
v. Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455, 183 L.Ed.2d 407]
(Miller), the Supreme Court held it also violated the Eighth
Amendment to impose a mandatory LWOP sentence on a juvenile
in a homicide case because that penalty “precludes consideration
of [the juvenile’s] chronological age and its hallmark features—
among them, immaturity, impetuosity, and failure to appreciate
risks and consequences.” (Id. at p. 477.) Shortly after Miller, the
California Supreme Court in People v. Caballero (2012)


order indicating the memorandum and exhibits were filed on that
date.
5
      Five years before its decision in Graham the Supreme
Court in Roper v. Simmons (2005) 543 U.S. 551, 578 [125 S.Ct.
1183, 161 L.Ed.2d 1] had held no individual may be executed for
an offense committed when he or she was a juvenile.



                                 7
55 Cal.4th 262, 268 (Caballero), held Graham’s Eighth
Amendment analysis applies to sentences that are the “functional
equivalent of a life without parole sentence,” including
                                      6
Caballero’s term of 110 years to life.
       To bring juvenile sentencing in California into conformity
with Graham, Miller and Caballero, the Legislature enacted
Senate Bill No. 260 (2013-2014 Reg. Sess.), effective January 1,
2014, adding sections 3051 and 4801, subdivision (c), to the Penal
Code. These provisions require the Board of Parole Hearings
(Board), with certain limited exceptions, to conduct a youth
offender parole hearing no later than a juvenile offender’s
25th year of incarceration (and at earlier points depending on the
offender’s “controlling offense”) (Pen. Code, § 3051, subd. (b)) and,
when considering parole eligibility for these youth offenders, 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” (Pen. Code, § 4801,
subd. (c)).
       Because these provisions for a youth offender parole
hearing meant that Tyris Franklin, sentenced to a mandatory
term of 50 years to life for shooting and killing another teenager
when Franklin was 16 years old, was “now serving a life sentence
that includes a meaningful opportunity for release during his
25th year of incarceration,” his sentence was “neither LWOP nor
its functional equivalent.” (Franklin, supra, 63 Cal.4th at
pp. 270-280.) Accordingly, the Court ruled, “no Miller claim


6
     In Franklin, supra, 63 Cal.4th at page 276 the California
Supreme Court extended Miller to mandatory sentences for
homicide offenses that are the functional equivalent of LWOP.



                                  8
arises here. The Legislature’s enactment of Senate Bill No. 260
has rendered moot Franklin’s challenge to his original sentence
under Miller.” (Id. at pp. 279- 280; see id. at p. 281 [Penal Code
section 3051 “effectively reforms the parole eligibility date of a
juvenile offender’s original sentence so that the longest possible
term of incarceration before parole eligibility is 25 years”].)
       Because Franklin’s constitutional challenge to his sentence
had been mooted by the Legislature’s provision through statute
for a youth offender parole hearing during his 25th year of
incarceration, the Court held, there was no need to resentence
him; his two consecutive 25-year-to-life sentences remained valid.
Nonetheless, the Court continued, “In directing the Board 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’ ([Pen.
Code,] § 4801, subd. (c)), the statutes also contemplate that
information regarding the juvenile offender’s characteristics and
circumstances at the time of the offense will be available at a
youth offender parole hearing to facilitate the Board’s
consideration.” (Franklin, supra, 63 Cal.4th at p. 283.) However,
assembling information about the individual before the crime, the
Court explained, “is typically a task more easily done 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. . . . Consideration of ‘subsequent growth and increased
maturity’ implies the availability of information about the
offender when he was a juvenile.” (Id. at pp. 283-284.)
       Since it was not clear whether Franklin had been afforded
a sufficient opportunity to make a record of information relevant




                                9
to his eventual youth offender parole hearing, the Court
remanded the matter for the trial court to provide that
opportunity if necessary. (Franklin, supra, 63 Cal.4th at p. 284;
see id. at p. 286 [“[s]o long as juvenile offenders have an adequate
opportunity to make a record of factors, including youth-related
factors, relevant to the eventual parole determination, we cannot
say at this point that the broad directives set forth by Senate Bill
No. 260 are inadequate to ensure that juvenile offenders have a
realistic and meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation”].) The Court
authorized Franklin 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” (id. at
p. 284), but also recognized the right of the prosecution to submit
“any evidence that demonstrates the juvenile offender’s
culpability or cognitive maturity, or otherwise bears on the
influence of youth-related factors.” (Ibid.)
       2. Counsel’s Stipulation To File the Franklin Package After
          the Sentencing Hearing and Without Presentation of Live
          Testimony Did Not Violate Sepulveda’s Constitutional
          Rights
      In his opening brief Sepulveda argues presentation of
youth-related mitigating information as contemplated by
Franklin is, in essence, an aspect of the sentencing hearing and,
as such, directly implicates a defendant’s fundamental due
process rights, including to be present at the hearing, to present
a defense and to cross-examine witnesses—rights that cannot be
waived by counsel without the client’s consent. (See generally
People v. Farwell (2018) 5 Cal.5th 295, 300-301.) Because he did
not expressly agree to the procedure adopted by his counsel to




                                10
                                               7
make a record of relevant youth-related factors, Sepulveda
contends he is entitled to a remand for a Franklin hearing.
      Sepulveda’s argument misperceives the nature of the
Franklin proceeding. As the Supreme Court emphasized in
In re Cook (2019) 7 Cal.5th 439 (Cook), “[T]he proceeding we
outlined in Franklin derives from the statutory provisions of
sections 3051 and 4801,” not the defendant’s due process or other
constitutional rights. (Cook, at p. 459; see People v. Rodriguez
(2018) 4 Cal.5th 1123, 1132 [“[w]e expressed no view in Franklin,
and we need not express any view here, on whether such a
remand is constitutionally required”].) Indeed, “a Franklin
proceeding is unrelated to the validity of the defendant’s
sentence.” (Cook, at p. 451.) The purpose of providing an
opportunity to present youth-related factors mitigating
culpability is not to influence the trial court’s discretionary
sentencing decisions but to preserve information relevant to the
defendant’s eventual youth offender parole hearing.
                          8
(See Rodriguez, at p. 1131; Franklin, supra, 63 Cal.4th at
pp. 283-284.)


7
      As discussed, Sepulveda was present in court and did not
object when the court summarized the parties’ stipulation that
his counsel would submit the information “in the form of
documentary evidence that would be part of the court file and not
subject to live testimony or cross-examination.”
8
      The Rodriguez Court acknowledged that, prior to
enactment of Senate Bill No. 260, some information regarding a
youthful defendant’s background circumstances might be
introduced at the sentencing hearing, but recognized “he or she
would not have had reason to know that the subsequently
enacted legislation would make such evidence particularly


                               11
       Moreover, as held in Rodriguez and reiterated in Cook, 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.” (People v. Rodriguez, supra, 4 Cal.5th
at p. 1132; accord, Cook, supra, 7 Cal.5th at p. 459.) Explaining
the scope of the trial court’s discretion, the Cook Court stated,
“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.” (Cook,
at p. 459.)
       The trial court properly exercised its discretion here,
accepting defense counsel’s proposal, with the agreement of the
prosecutor, to submit the relevant information in written form
without live testimony or cross-examination. This procedure did
not violate Sepulveda’s constitutional rights.




relevant in the parole process. Without such notice, any
opportunity to introduce evidence of youth-related factors is not
adequate in light of the purpose of Senate Bill No. 260.”
(Rodriguez, supra, 4 Cal.5th at p. 1131.)



                                12
      3. Sepulveda’s Ineffective Assistance of Counsel Claim
         Should Be Presented in a Petition for Writ of Habeas
         Corpus
       To establish ineffective assistance of counsel, a defendant
must show that counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms,
and counsel’s deficient performance was prejudicial, that is, there
is a reasonable probability that, but for counsel’s failings, the
result would have been more favorable to the defendant. (People
v. Rices (2017) 4 Cal.5th 49, 80; People v. Mickel (2016) 2 Cal.5th
181, 198; see Strickland v. Washington (1984) 466 U.S. 668, 687-
692 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
       “On direct appeal, if the record ‘“sheds no light on why
counsel acted or failed to act in the manner challenged,”’ we must
reject the claim ‘“unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no
satisfactory explanation.”’” (People v. Caro (2019) 7 Cal.5th 463,
488; accord, People v. Mickel, supra, 2 Cal.5th at p. 198 [“a
reviewing court will reverse a conviction based on ineffective
assistance of counsel on direct appeal only if there is affirmative
evidence that counsel had ‘“‘no rational tactical purpose’”’ for an
action or omission”].) Accordingly, “except in those rare instances
where there is no conceivable tactical purpose for counsel’s
actions, claims of ineffective assistance of counsel should be
raised on habeas corpus, not on direct appeal.” (People v. Lopez
(2008) 42 Cal.4th 960, 972; see People v. Mendoza Tello (1997)
15 Cal.4th 264, 266-267 [appellate court should not find
ineffective assistance of counsel unless all facts relevant to that
claim have been developed in the record]; People v. Avena (1996)
13 Cal.4th 394, 419 [“‘[w]here the record does not illuminate the




                                13
basis for the challenged acts or omissions, a claim of ineffective
assistance is more appropriately made in a petition for habeas
corpus’”], italics omitted.)
       Emphasizing that the trial court had discretion to strike
the two consecutive 25-year-to-life firearm enhancements it
imposed, thereby potentially reducing his sentence from an
aggregate indeterminate term of 90 years to life to 40 years to
life, Sepulveda contends his counsel provided constitutionally
deficient assistance by failing to present during the February 15,
2018 sentencing hearing any of the information mitigating
culpability contained in the Franklin memorandum filed on
April 4, 2018. (Alternatively, Sepulveda suggests defense counsel
should have requested yet another continuance of the sentencing
hearing, already delayed more than a year, so that the
memorandum would be completed and filed prior to sentencing.)
The record on appeal, however, does not explain why counsel
chose to proceed in this fashion. “Under those circumstances, a
reviewing court has no basis on which to determine whether
counsel had a legitimate reason for making a particular decision,
or whether counsel’s actions or failure to take certain actions
were objectively unreasonable.” (People v. Mickel, supra,
2 Cal.5th at p. 198.)
       Nor has Sepulveda shown “affirmative evidence that
counsel could have had ‘no rational tactical purpose’ for these
decisions.” (People v. Mickel, supra, 2 Cal.5th at p. 200.) To the
contrary, it is at least plausible that defense counsel recognized
under Penal Code section 3051, subdivision (b)(3), Sepulveda’s
eventual youth offender parole hearing would occur during his
25th year of incarceration whether his aggregate indeterminate
sentence was 40 years to life or 90 years to life, and believed




                                14
under those circumstances Sepulveda would benefit more by an
agreement with the prosecution to have the Franklin
memorandum presented without contemporaneous challenge or
contradiction than by introducing that material at the sentencing
hearing in the remote chance the trial court would exercise its
discretion to strike the firearm enhancements. At the very least,
this is not a matter we can resolve on direct appeal.
                           DISPOSITION
       The judgment is affirmed. The abstract of judgment is
ordered corrected to reflect the sentence on count 2 is to be served
consecutively and the sentence on counts 3 and 4 concurrently to
the sentence on count 1.


                                     PERLUSS, P. J.


      We concur:



            SEGAL, J.



            FEUER, J.




                                15
