Filed 4/6/16
                            CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                      DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                     A138649, A142829
v.
CASEY TURNER,                                        (Alameda County
                                                     Super. Ct. No. 169011)
         Defendant and Appellant.
___________________________
In re CASEY TURNER,
         On Habeas Corpus.


                                     I. INTRODUCTION
         A jury convicted Casey Turner of one count of second degree murder (Pen. Code,1
§ 187, subd. (a)), and two counts of attempted murder (§§ 187, subd. (a), 664). The jury
also found true the allegations that Turner, who was 15 years old at the time of the
offenses, personally used a firearm (§§ 12022.5, subd. (a)) and personally inflicted great
bodily injury (§ 1203.075). The court sentenced Turner to an aggregate state prison term
of 84 years, 7 months to life.
         On appeal, Turner contends the trial court prejudicially erred in refusing to instruct
the jury on the theories imperfect self-defense and justifiable homicide based on self-
defense. He also claims his right to due process was violated by giving the instructions
on a kill zone theory that was not supported by substantial evidence. Additionally,
Turner contends that his sentence of 84 years to life constitutes cruel and unusual


1
    All further undesignated statutory references are to the Penal Code.

                                               1
punishment under the Eighth Amendment to the United States Constitution. In a related
habeas corpus petition, which we have consolidated with this appeal, Turner claims he
was denied effective assistance of counsel because his trial counsel failed to raise the
issue of cruel and unusual punishment below and failed to present readily available
mitigating evidence in support of a lesser sentence. Finally, Turner contends, and the
Attorney General concedes, that the trial court erroneously concluded that it lacked
discretion to waive the $200 probation investigation fee.
                               II. EVIDENCE AT TRIAL
       On March 27, 2010, 15-year-old Turner fired a gun at a group of young men,
killing James Allen, and grazing Damonte Starks, and Burnett Raven. Turner knew the
victims from high school. The incident took place in or near the parking lot of a local
community market in downtown Oakland.
       Some time prior to the shootings, Turner and Allen had gotten into a fight at
school over a girl named Shay. Shay claimed that she was pregnant with Allen’s child.
However, according to Raven, Turner was telling people that Shay was “his woman.” On
the day of the shootings, Allen and several others, including his uncle or cousin Vito,
Raven,2 and Starks, had gotten together to make music at a friend’s home recording
studio. At some point, the group set out to find Turner to confront him about his
involvement with Allen’s “baby mama.” Starks was with the group, but insisted that he
had not left with them to “find” or to “hurt” Turner. According to Starks, the group took
a bus to an area near 90th Avenue and Bancroft, where they planned to “go mess with
some girls.”
       Starks and Raven told the police that the group got off the bus and walked over to
two apartment complexes located between 92nd Avenue and 90th Avenue. Across the
street from the 90th Avenue side, was the Rowaid Market, also known as the “blue”

2
       Raven was unavailable to testify at trial due to an unrelated gunshot wound that
had left him unconscious with dim prospects of surviving. (Evid. Code, § 1291.) A video
recording of his interview with the police was played and introduced into evidence. A
transcript of the interview is included in the record on appeal. Additionally, Raven’s
preliminary hearing testimony was read into evidence.

                                             2
market, which had an adjacent parking lot. The group entered through a gate on the 92nd
Avenue side of the complexes and followed the walkway that ran between the complexes
to the 90th Avenue side. As they approached the 90th Avenue gate, Starks heard
gunshots and started running back along the walkway. It sounded like the shots were
coming from across the street at the blue market. He began to run because he was afraid
of being shot and killed. At some point, he heard a bullet hit the gate. As he ran, Starks
was “grazed” by a bullet. He felt the impact of the bullet and almost fell, but he kept
running. Starks ran up 92nd Avenue and got on a bus. Later, he checked his clothing
and found entry and exit holes in the upper left shoulder area of his hooded sweatshirt.
       Starks remembered speaking to the police a couple of months after the shootings.
He did not recall telling the police he had seen two individuals across the street just
before the shooting began. Starks did not have a gun with him that day, and he did not
see Allen with a gun. He remembered that as he was running away, he heard some shots
that sounded “a little bit closer,” but he did not know from where the shots were coming.
       Raven denied that he left with the group to go to the 90th Avenue apartments. He
claimed that he lied in his recorded police interview when he said that he and the group
left together bound for the 90th Avenue apartments. Rather, Raven claimed that he
arrived alone at the 90th Avenue apartments. He said he spent approximately 90 minutes
to two hours with a girl (whose name he could not recall and who he had not seen since),
and then left the building on the 90th Avenue side. Upon leaving the building, he saw
Allen and the rest of the group he had been with earlier that day. On the witness stand,
Raven denied that any words were exchanged among any members of the group when he
first saw them on 90th Avenue. However, during his recorded police interview, Raven
said: “James [Allen] and [Vito] was on the phone. Yeah, it was kind of, like, you could
tell, like, they was getting into it. And they was, like, James [Allen] was like, he was
about to kill Casey [Turner] ‘cause Casey was messing with his baby mama. [Vito] was,
like, ‘Let’s do it.’ And then, I was–we was walking–I was walking out the gate, so–we
could get back on the bus. So when I walked out the gate . . . Markus and Casey was



                                              3
walking toward us from across the street.”3 In his police interview, Raven also said that,
while he and the group were inside the apartment complex, he heard someone say, “I’m
gonna kill Casey.”
       Raven saw Turner across the street in the parking lot of the blue market. Raven
noticed that Turner was tying the hood of his jacket while holding a gun in his hand. In
his recorded police interview, Raven said: “I seen Casey [Turner] throw his hood on, tie
it up. And I was, like, ‘There go Casey right there.’ And then right after that, Casey
started shooting.” Raven later did not recall making this statement at the scene or during
his police interview. He explained that he was under the influence of marijuana at the
time of his interview with the police.
       Raven testified that as he reached the 90th Avenue gate, Allen was right behind
him. Turner pointed the gun at Raven and started shooting. Raven ran back inside the
gate. Allen ducked and tried to cover himself as he ran back inside the gate. Raven said
Turner fired seven or eight shots. Raven “heard different guns” being shot. Raven did
not know what Allen was doing at this point because Raven was too worried about
getting out of the area. Raven did hear two or three gunshots coming from a direction
closer to him. Although Raven testified that he did not know that Allen had a gun with
him and he did not see him with a gun until after he saw him fall down, Raven initially
told police that he saw Allen fire three shots from a chrome revolver. Raven insisted,
however, that Turner fired first.
       As Raven and Allen were running, Allen collapsed. Raven saw blood on Allen’s
shirt. Later, Raven realized that he had been grazed by a bullet as there was a hole in his
hooded sweatshirt and his back was stinging.
       Rickeisha Glenn lived in one of the apartment complexes between 90th Avenue
and 92nd Avenue. Around 2:00 p.m. on the day of the shootings, Glenn heard what
sounded like fireworks coming from the 90th Avenue side of the complex; she also heard
the sound of running. When she looked outside, she saw a person lying on the ground.

3
     In his statement to the police, Raven said Turner had been with someone named
“Markus.”

                                             4
When she went to check on the person, she saw blood coming from his mouth and he was
unresponsive. She looked up and down the walkway that ran between the complexes.
She saw three black males running through the 92nd Avenue gate. Glenn saw Turner
running away from the 90th Avenue gate. Glenn knew Turner and saw him in the area on
a regular basis. She said boys in the area frequently ran around recklessly with guns,
acting if they were playing a game. Turner was one of those boys. Glenn later identified
Turner in a photographic lineup.
       Officer Patrick Mahanay of the Oakland Police Department participated in the
investigation of the shootings. He recovered eight .25 caliber shell casings from the
parking lot next to the blue market. The casings were found approximately 120 feet from
the gate of the apartment complexes across the street. He found a nine millimeter shell
casing in front of apartment 11, which was located across the street from the blue market.
He also found a bullet hole in the exterior façade of apartment 11. Officer Mahanay
found two strike marks on a wall next to the front door of a residence, which was
consistent with shots being fired from inside the courtyard toward the market. He also
documented a bullet hole that went through the wall of an apartment. The bullet
penetrated another wall and could not be extracted. After officers finished searching the
courtyard near the apartment with the bullet hole, a scratched and bent .380 caliber casing
was discovered on the scene. Officer Mahanay thought this discovery was odd because
the casing had not been previously found and it appeared to be old.
       The parties stipulated that Allen died of a gunshot wound to the torso. The bullet
entered the left front chest, passed through his heart, and was recovered on the left side of
his back.
       No firearm was ever recovered. The casings and bullets that were recovered from
the scene were analyzed by criminalist Todd Weller of the Oakland Police Department.
He examined ten shell casings and two bullets. Weller’s analysis of the eight .25 caliber
casings suggested that they were all fired from the same gun. Weller did not have a
firearm that he could use to perform an eject pattern testing, which prevented him from
opining as to the specific weapon used. For the other two casings, one a nine millimeter


                                              5
Luger casing and the other a .380 caliber casing, Weller had nothing with which to
compare them. Both bullets he analyzed were .25 caliber, which he concluded were fired
from the same, unknown gun. Weller was unable to determine whether the .25 caliber
bullets came from the .25 caliber casings. He further explained that a .25 caliber
cartridge could be fired by a non-automatic handgun.
       Sergeant Sean Fleming interviewed Starks in January 2011. In this interview,
Starks told Sergeant Fleming that Raven, who also went by the name of Bigs, as well as
Vito, Vontay, Zay, and Skrilla, were present at the time Allen was shot. Starks said the
shooting started from across the street, near the blue market, where he saw two
individuals standing. Starks thought Allen had fired back about three times. Starks
identified Turner in a photographic lineup.
       Also in January 2011, Sergeant Fleming interviewed Raven. Raven said that
Starks, also known as Little Bigs, Zay, Vontay, and Vito were with him at the time of the
shootings. Zay, Vontay, and Vito declined to cooperate with the police. Raven told
Sergeant Fleming that Turner started shooting first from the parking lot across the street,
as Raven and the others were leaving the 90th Avenue gate. Raven said “everything was,
like, unexpected, kind of.” Allen started shooting back from behind the gate, firing his
gun three times. During the exchange of gunfire, a bullet grazed Raven’s back. Raven
told Sergeant Fleming that he was unaware that Allen had a gun with him that day; he did
not see Allen’s gun, a chrome revolver, until after the shooting started. Raven reported
that he had seen Allen and Turner at a mutual friend’s house, just a day before the
shootings, and thought they were getting along. Raven said there were “no problems at
all” between Turner and Allen. Raven did not realize until they were walking through the
apartment complex that Allen intended to confront Turner about the girl who said she
was pregnant with Allen’s child, but who Turner said was his girlfriend.
                                    III. DISCUSSION
A.     Self-Defense Instructions
       Turner contends the court prejudicially erred in refusing to instruct the jury on the
theories of imperfect self-defense and justifiable homicide based on self-defense.


                                              6
Defense counsel asked the court to instruct the jury with, among other things, CALJIC
Nos. 5.12 (justifiable homicide–lawful self-defense) and 5.17 (actual but unreasonable
belief in need to defend self).
       Turner maintains the evidence justified the self-defense instructions because it
showed Allen “accompanied by five friends and armed with a revolver—set out to
confront [Turner], over a dispute as to whether [Allen] or [Turner] was the father of a
baby on the way.” He further claims that “[j]ust before the shooting, [Allen], in an
agitated state, spoke of killing [Turner].”
       CALJIC No. 5.12 addressing justifiable homicide based on perfect self-defense,
states: “The killing of another person in self-defense is justifiable and not unlawful when
the person who does the killing actually and reasonably believes: [¶] 1. That there is
imminent danger that the other person will either kill [him] [her] or cause [him] [her]
great bodily injury; and [¶] 2. That it is necessary under the circumstances for [him] [her]
to use in self-defense force or means that might cause the death of the other person for
the purpose of avoiding death or great bodily injury to [himself] [herself]. [¶] A bare fear
of death or great bodily injury is not sufficient to justify a homicide. To justify taking the
life of another in self-defense, the circumstances must be such as would excite the fears
of a reasonable person placed in a similar position, and the party killing must act under
the influence of those fears alone. The danger must be apparent, present, immediate and
instantly dealt with, or must so appear at the time to the slayer as a reasonable person,
and the killing must be done under a well-founded belief that it is necessary to save one’s
self from death or great bodily harm.”
       And, CALJIC No. 5.17, regarding imperfect self-defense provides as follows: “A
person who kills another person in the actual but unreasonable belief in the necessity to
defend against imminent peril to life or great bodily injury, kills unlawfully but does not
harbor malice aforethought and is not guilty of murder. This would be so even though a
reasonable person in the same situation seeing and knowing the same facts would not
have had the same belief. Such an actual but unreasonable belief is not a defense to the
crime of [voluntary] [or] [involuntary] manslaughter. [¶] As used in this instruction, an


                                              7
‘imminent’ [peril] [or] [danger] means one that is apparent, present, immediate and must
be instantly dealt with, or must so appear at the time to the slayer. [¶] [However, this
principle is not available, and malice aforethought is not negated, if the defendant by [his]
[her] [unlawful] [or] [wrongful] conduct created the circumstances which legally justified
[his] [her] adversary’s [use of force], [attack] [or] [pursuit].]”
       The trial judge refused to give the requested instructions, ruling that “[t]here is no
substantial evidence to support” such instructions. Although the court denied Turner’s
request to include the self-defense instructions, defense counsel suggested during closing
argument that Turner acted in self-defense because Allen threatened to kill Turner.
Because we conclude the defense presented no evidence to support the giving of the
requested instructions, Turner’s claim fails.
       Addressing a similar claim of instructional error, the California Supreme Court
explained: “An unlawful killing involving either an intent to kill or a conscious disregard
for life constitutes voluntary manslaughter, rather than murder, when the defendant acts
upon an actual but unreasonable belief in the need for self-defense. [Citations.] In
addition, a homicide is justifiable and noncriminal where the actor possessed both an
actual and reasonable belief in the need to defend. [Citations.] In either case, ‘the fear
must be of imminent harm. “Fear of future harm—no matter how great the fear and no
matter how great the likelihood of the harm—will not suffice. The defendant’s fear must
be of imminent danger to life or great bodily injury.” ’ [Citations.] The trial court need
not give [perfect or imperfect self-defense] instructions on request absent substantial
evidence to support them.” (People v. Stitely (2005) 35 Cal.4th 514, 550; see People v.
Manriquez (2005) 37 Cal.4th 547, 581; In re Christian S. (1994) 7 Cal.4th 768, 783.)
Where there is no evidence from which a jury could reasonably conclude a defendant had
an actual or honest belief in the need to defend against imminent danger to himself or
others, such instructions are properly refused. (People v. Rodriguez (1997) 53
Cal.App.4th 1250, 1269; accord, People v. Breverman (1998) 19 Cal.4th 142, 162
[instructions on imperfect self-defense required where the evidence that the defendant
was guilty only of that lesser offense is “ ‘substantial enough to merit [a jury’s]


                                                8
consideration’ ”; the existence of any evidence, no matter how weak, will not justify
instructions on a lesser included offense]; People v. Barton (1995) 12 Cal.4th 186, 201
[sua sponte instruction that defendant killed in unreasonable self-defense is not required
when the evidence is “ ‘minimal and insubstantial’ ”].) On appeal, we apply a de novo
standard of review. (Manriquez, supra, 37 Cal.4th at p. 581.)
       Here, the evidence was insufficient to require the giving of either self-defense
instruction. The record is devoid of evidence suggesting Turner shot Allen because he
actually believed he was in imminent danger of being killed or seriously injured. At
some time prior to the shootings, Turner and Allen had fought about which one of them
had impregnated a girl from school. However, the day just before the shootings, it was
reported that there were “no problems at all” between Turner and Allen. On the day of
the shootings, it was reported that the altercation unfolded in an “unexpected” manner.
Turner shot first and then Allen returned fire.
       Turner maintains there was substantial evidence to give the requested instructions
because just prior to the shootings, Allen, “in an agitated state, spoke of killing [Turner].”
Next, Raven called out, “ ‘There go [Turner] right there.’ ” According to Raven, “ ‘right
after that, [Turner] started shooting.’ ”
       Turner concedes that his failure to testify “complicates” the question of whether he
heard Allen’s “statement of homicidal intent” or Raven’s subsequent declaration that
Turner was across the street. Nevertheless, he insists that “there was a plausible basis for
the jury to conclude [Turner] did hear one or both of these statements, that he saw the
group of six boys assembled across the street from him, that he knew [Allen] was looking
to confront him, and that he saw [Raven] point him out to the group.” We disagree.
       There is simply no basis for the jury to conclude that Turner heard the remarks by
Allen and Vito. Raven said the comments were made inside the apartment complex, not
outside. Moreover, Officer Mahanay testified that the .25 caliber shell casings he
collected were located 120 feet from the 90th Avenue Gate. Also, there is no evidence
that Turner saw a group of six boys assembled across the street from him. Raven
testified that Turner started shooting at him as soon as he left the 90th Avenue gate.


                                              9
Allen was directly behind Raven; both boys turned back and started to run back through
the gate once the shooting started. Similarly, Starks started to run back down the
walkway as soon as he heard the shooting. No evidence suggested that anyone other than
Raven and Allen even stepped out of the gate; there was also no evidence that a group
had assembled on the street in a “threatening manner.”
       Given the state of the evidence, in which nothing suggests Allen posed an
imminent danger to Turner’s life or that he created an imminent risk of inflicting great
bodily harm to Turner, and there is no evidence from which the jury can infer that to be
the case. Because the subjective elements required for imperfect self-defense are lacking,
we conclude that the trial court correctly refused to instruct the jury on self-defense.
B.     Kill Zone Instruction
       Turner argues that insufficient evidence supported the trial court’s instruction on
attempted murder based on a kill zone theory. According to Turner, the record lacks
substantial evidence that he specifically intended to kill Starks and Raven. Rather, he
contends that he “merely acted with a conscious disregard for their lives.” And, as such,
the kill zone instruction impermissibly created an exception to the requirement that a
specific intent to kill must be established in all attempted murder cases.
       The trial court instructed the jury with CALJIC No. 8.66.1, which provides as
follows: “A person who primarily intends to kill one person, may also concurrently
intend to kill other persons within a particular zone of risk. This zone of risk is termed
the ‘kill zone.’ The intent is concurrent when the nature and scope of the attack, while
directed at a primary victim, are such that it is reasonable to infer the perpetrator intended
to kill the primary victim by killing everyone in that victim’s vicinity. [¶] Whether a
perpetrator actually intended to kill the victim either as a primary target or as someone
within the kill zone or zone of risk is an issue to be decided by you.”
       Preliminarily, the Attorney General argues that Turner has forfeited this issue by
not objecting below to the kill zone instruction. Electing to circumvent Turner’s
ineffective assistance of counsel claim raised in his related petition for writ of habeas



                                             10
corpus, we exercise our discretion (see In re Sheena K. (2007) 40 Cal.4th 875, 887) and
review this otherwise forfeited claim, and conclude that it fails on the merits.
        “A trial court must instruct the jury on every theory that is supported by
substantial evidence, that is, evidence that would allow a reasonable jury to make a
determination in accordance with the theory presented under the proper standard of proof.
[Citation.] We review the trial court’s decision de novo. In so doing, . . . we must
determine whether a reasonable trier of fact could have found beyond a reasonable
doubt” that Turner committed attempted murder based on a kill zone theory. (People v.
Cole (2004) 33 Cal.4th 1158, 1206; § 1093.) That determination must be made without
reference to the credibility of the evidence. (People v. Marshall (1996) 13 Cal.4th 799,
847.)
        We first consider the mental state required for attempted murder, which “has long
differed from that required for murder itself. Murder does not require the intent to kill.
Implied malice—a conscious disregard for life—suffices.” (People v. Bland (2002) 28
Cal.4th 313, 327 (Bland).) “ ‘In contrast, “[a]ttempted murder requires the specific intent
to kill and the commission of a direct but ineffectual act toward accomplishing the
intended killing.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 739.) “The mental state
required for attempted murder is further distinguished from the mental state required for
murder in that the doctrine of ‘transferred intent’ applies to murder but not attempted
murder.” (Id. at pp. 739-740.) “In its classic form, the doctrine of transferred intent
applies when the defendant intends to kill one person but mistakenly kills another. The
intent to kill the intended target is deemed to transfer to the unintended victim so that the
defendant is guilty of murder.” (Bland, supra, 28 Cal.4th at p. 317.) In contrast, “ ‘[t]o
be guilty of attempted murder, the defendant must intend to kill the alleged victim, not
someone else.’ ” (People v. Smith, supra, 37 Cal.4th at p. 740.)
        Under a concurrent intent or kill zone theory, however, a defendant may be guilty
of the attempted murder of victims who were not the defendant’s primary target but were
located within the kill zone. (People v. McCloud (2012) 211 Cal.App.4th 788, 798.)
This occurs “ ‘when the nature and scope of the attack, while directed at a primary


                                             11
victim, are such that we can conclude the perpetrator intended to ensure harm to the
primary victim by harming everyone in that victim’s vicinity. For example, an assailant
who places a bomb on a commercial airplane intending to harm a primary target on board
ensures by this method of attack that all passengers will be killed. Similarly, consider a
defendant who intends to kill A and, in order to ensure A’s death, drives by a group
consisting of A, B, and C, and attacks the group with automatic weapon fire or an
explosive device devastating enough to kill everyone in the group. The defendant has
intentionally created a “kill zone” to ensure the death of his primary victim, and the trier
of fact may reasonably infer from the method employed an intent to kill others concurrent
with the intent to kill the primary victim.’ ” (Bland, supra, 28 Cal.4th at pp. 329-330.)
“In a kill zone case, the defendant does not merely subject everyone in the kill zone to
lethal risk. Rather, the defendant specifically intends that everyone in the kill zone die.”
(People v. McCloud, supra, 211 Cal.App.4th at p. 798.) A rational jury may infer this
specific intent “from the facts that (1) the defendant targeted a primary victim by
intentionally creating a zone of harm, and (2) the attempted murder victims were within
that zone of harm.” (People v. Adams (2008) 169 Cal.App.4th 1009, 1023.)
       Substantial evidence supports the trial court’s instruction on attempted murder
based on a kill zone theory. Allen, Starks, and Raven walked through a corridor between
two apartment complexes. As Raven, approached the 90th Avenue gate ahead of Allen,
Turner, positioned across the street, aimed a gun at Raven and started shooting. A bullet
grazed Raven as he turned and ran back inside the gate. Allen also turned and ran back
inside as Turner continued shooting. Starks, who was farther back, also turned to flee as
the shooting began. As he ran, a bullet grazed Starks. In all, Turner fired at least eight
shots into the corridor, which hit three people. From this evidence, the jury could draw a
reasonable inference, in light of the direction of the shots and the number of shots, that
Turner harbored a specific intent to kill every living being in the corridor. (See People v.
Vang (2001) 87 Cal.App.4th 554, 563-564 [finding the jury “drew a reasonable inference,
in light of the placement of the shots, the number of shots and the use of high-powered,



                                             12
wall-piercing weapons, that defendants harbored a specific intent to kill every living
being within the residences” at which they shot].)
       Turner, nevertheless, disputes the propriety of the kill zone theory, arguing that, as
to Allen’s death, the prosecutor asked the jury to convict him of second degree murder on
an implied malice theory. He posits that “if the ‘kill zone’ theory of attempted murder is
rooted in the notion of concurrent intent, and [he] did not harbor the specific intent to kill
[Allen] (but rather shot him with a conscious disregard for life), then he also did not
harbor the specific [intent] to kill [Starks] or [Raven], whom the prosecution never
claimed (and the evidence did not show) were the shooter’s primary targets.” Rather, he
asserts that the evidence shows only that he shot at Allen, Starks, and Raven in a manner
that subjected all three of them to the risk of fatal injury with conscious disregard.
According to Turner, the kill zone instruction was inapplicable because there is no
evidence he specifically intended to kill anyone. By this argument, Turner essentially
disputes the existence of a primary target. In People v. Stone (2009) 46 Cal.4th 131, 140
(Stone), however, our Supreme Court explained that “[a]n indiscriminate would-be killer
is just as culpable as one who targets a specific person.” “Although a primary target
often exists and can be identified, one is not required.” (Ibid.) “ ‘[G]uilt of attempted
murder must be judged separately as to each alleged victim.’ [Citation.] But this is true
whether the alleged victim was particularly targeted or randomly chosen.” (Id. at p. 141.)
       Turner acknowledges the holding in Stone, but argues it is not dispositive since
nothing suggests a person may be convicted of attempted murder when there is no
primary target and no specific intent to kill. He further contends that where there is no
primary target, Stone requires a specific intent to kill everyone in the “kill zone,” such
that it is of little consequence that there is no specific intent to kill a particular person.
Even assuming arguendo, that this interpretation of Stone is valid, Turner’s claims,
nevertheless, fail. Here, although the prosecutor asked the jury to convict Turner of
second degree murder on an implied malice theory, when discussing the attempted
murder counts, the prosecutor referred to evidence indicating that Turner acted with “a
definite and unambiguous intent to kill” as he shot at Allen, Starks, and Burnett.


                                               13
Specifically, the prosecutor stated: “[W]e know from the witnesses that when the shots
rang out, they started running down the corridor to get away. We know that James Allen
was struck in the chest. We know that Damonte Starks and Burnett Raven were
essentially grazed . . . . That’s how close the bullets are flying in this constricted area as
these young people are running down the [corridor]. It’s not one shot, not two shots, not
three shots. It’s far more than that. [¶] A direct step indicates a definite and
unambiguous intent to kill. Shooting at close range at a crowd of people who have
almost no means of escape, you’re running down a corridor and you’re just praying the
bullets miss as they’re flying by.” We agree that the totality of the evidence suggests that
Turner specifically intended to kill Allen, Starks, and Raven, but the jury convicted
defendant of second degree murder on an “implied malice” theory.
       Turner next argues that the jury was confused by the prosecutor’s argument
because it asked for clarification of the definition of the mental state for attempted
murder. Citing CALJIC No. 8.66.1, the trial court responded that a defendant must have
a “specific intent to kill another human being and anyone else in the ‘zone of risk.’ ”
Less than a half hour later, the jury returned its verdicts.
       In sum, we conclude the trial correctly instructed the jury with CALJIC No. 8.66.1
on the kill zone theory. Substantial evidence supports Turner’s attempted murder
convictions under that theory.
C.     Cruel and Unusual Punishment Under the Eighth Amendment
       Relying on Miller v. Alabama (2012) 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d
407 (Miller), Graham v. Florida (2010) 560 U.S. 48 (Graham), and People v. Caballero
(2012) 55 Cal.4th 262 (Caballero), Turner argues his 84 years to life sentence constitutes
a de facto life sentence because he was a juvenile offender who will not be eligible for
parole until he is 99 years old–an age outside his natural life expectancy. He further
claims on direct appeal and in his consolidated petition for writ of habeas corpus that his
defense counsel rendered ineffective assistance by failing to object to the sentencing and
by failing to offer readily available mitigating evidence.



                                              14
       The Attorney General asserts that Turner forfeited the challenge to his sentence
because he failed to object in the trial court. The Attorney General further adds that
Senate Bill 260 (Sen. Bill 260) cures any defect in Turner’s sentence, and thus defense
counsel was not ineffective for failing to object to the sentence imposed.
       1.     Turner’s Sentence of 84 Year to Life Affording Him an Initial Parole
              Hearing at Age 99 Violates the Eighth Amendment

       The Eighth Amendment to the United States Constitution prohibits “cruel and
unusual punishments.” (See also Cal. Const., art. I, § 17 [proscribing the infliction of
“cruel or unusual punishment”].) This restriction proscribes punishment that it is grossly
disproportionate to the offender’s culpability. (U.S. Const., 8th Amend.) In the context
of juvenile offenders, because they “cannot with reliability be classified among the worst
offenders,” categorical rules have developed to prevent the imposition of disproportionate
punishment. (Roper v. Simmons (2005) 543 U.S. 551, 569.)
       In Graham, supra, 560 U.S. 48, the Supreme Court held a nonhomicide juvenile
offender may not be sentenced to life without parole (hereafter LWOP). (Id. at p. 74.)
The Court required juvenile offenders be given “some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation” absent exceptional
circumstances. (Id. at p. 75.)
       After Graham came Miller, supra,567 U.S. __ [132 S.Ct. 2455], in which the high
court prohibited sentencing a juvenile homicide offender to mandatory LWOP and
required the sentencing court to consider the mitigating qualities of youth, including: (1)
age and its hallmark features such as immaturity, impetuosity, and failure to appreciate
risk and consequences; (2) family and home environment; and (3) circumstances of the
homicide offense, including the extent of participation and familial or peer pressure. (Id.
at pp. 2467-2468, 2475.)
       Following Graham and Miller, in Caballero, supra, 55 Cal.4th 262, the California
Supreme Court prohibited a term-of-years sentence that amounts to the “functional
equivalent” of LWOP for juvenile nonhomicide offenders. (Caballero, supra, 55 Cal.4th
at pp. 267-268.) The court explained the Eighth Amendment requires that at sentencing,


                                             15
a juvenile nonhomicide offender must be provided with “a meaningful opportunity to
demonstrate their rehabilitation and fitness to reenter society in the future,” and “the
sentencing court must consider all mitigating circumstances attendant in the juvenile’s
crime and life, including but not limited to his or her chronological age at the time of the
crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and
his or her physical and mental development.” (Id. at pp. 268-269.)
       In developing these rules, the courts relied on three fundamental differences
between juveniles and adults to conclude juveniles are constitutionally different from
adults for sentencing purposes. (Graham, supra, 560 U.S. at p. 68.) First, as compared
to adults, “children have a ‘ “lack of maturity and an underdeveloped sense of
responsibility,” ’ leading to recklessness, impulsivity, and heedless risk-taking.
[Citation.] Second, children ‘are more vulnerable . . . to negative influences and outside
pressures,’ including from their family and peers; they have limited ‘contro[l] over their
own environment’ and lack the ability to extricate themselves from horrific, crime-
producing settings. [Citation.] And third, a child’s character is not as ‘well formed’ as
an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of
irretrievabl[e] deprav[ity].’ ” (Miller, supra, 567 U.S. __ [132 S.Ct. at p. 2464].)
       Because of these characteristics, “ ‘juvenile offenders cannot with reliability be
classified among the worst offenders.’ [Citation.] A juvenile is not absolved of
responsibility for his actions, but his transgression ‘is not as morally reprehensible as that
of an adult.’ ” (Graham, supra, 560 U.S. 48, 68.) Yet, “a juvenile offender will on
average serve more years and a greater percentage of his life in prison than an adult
offender.” (Id. at p. 70.) Accordingly, “appropriate occasions for sentencing juveniles to
[LWOP or its functional equivalent] will be uncommon.” (Miller, supra, 567 U.S. __
[132 S.Ct. at p. 2469].)
       In the wake of these cases, “[t]he issue of how long someone under the age of 18
may be sentenced to prison has been the subject of considerable judicial attention.”
(People v. Perez (2013) 214 Cal.App.4th 49, 55.) A long sentence with eligibility for
parole will be constitutional “if there is some meaningful life expectancy left when the


                                               16
offender becomes eligible for parole.” (Id. at p. 57 [no case has struck “down as cruel
and unusual any sentence against anyone under the age of 18 where the perpetrator still
has substantial life expectancy left at the time of eligibility for parole”] (Fn. omitted.).)
How much life expectancy must remain at the time of parole eligibility remains unclear.
(See People v. Solis (2014) 224 Cal.App.4th 727, 733, review granted June 11, 2014,
S218757 [sentence allowing for parole eligibility at age 68 constituted the functional
equivalent of LWOP]; People v. Perez, supra, 214 Cal.App.4th at pp. 57-58 [sentence
allowing for parole eligibility at age 47 did not constitute the functional equivalent of
LWOP].)
       It is undisputed that Turner committed the crimes when he was 15 years old and
under his sentence, he would first become eligible for parole at the age of 99. Turner
argues his sentence offers him no realistic opportunity for release during his lifetime. He
contends that, considering the reduced life expectancy that results from incarceration, he
will have no meaningful chance at life after parole before he reaches his life expectancy,
assuming he even survives long enough to reach his first parole eligibility date. (See
People v. Solis, supra, 224 Cal.App.4th at p. 734.)
       “[L]ife expectancy projections derived on appeal [have varied] widely in recent
juvenile LWOP cases,” from as high as 80 years for an 18–year–old defendant to as low
as 64.6 years for a 17–year–old defendant. (See People v. Gonzalez (2014) 225
Cal.App.4th 1296, 1307, review granted July 23, 2014, S219167; People v. Mendez
(2010) 188 Cal.App.4th 47, 63 [life expectancy for an 18–year–old male is 76 years]
[citing National Center for Health Statistics, Centers for Disease Control, National Vital
Statistics Reps. (June 28, 2010) table 2, vol. 58, No. 21, and People v. Romero (2002) 99
Cal.App.4th 1418, 1427–1428]; People v. Solis, supra, 224 Cal.App.4th at p. 734, fn. 2
[life expectancy for a 17–year–old is 72 years based on actuarial tables].)
       Even assuming a high range life expectancy of 80, Turner’s initial parole hearing
at age 99 is unquestionably too late to ensure a “meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.” (Graham, supra, 560 U.S. at p. 75.)
Turner’s sentence offering him his first chance at parole just shy of his 100th birthday


                                              17
affords him little opportunity to become a contributing member of society. Rather, it
constitutes an impermissible judgment on his value and place in society that deprives him
of a meaningful opportunity to demonstrate his rehabilitation and fitness to reenter
society in the future. (Id. at p. 74; Caballero, supra, 55 Cal.4th at p. 268.) Turner’s
sentence therefore conflicts with the mandate of Graham, Miller, and Caballero that
absent exceptional circumstances, juvenile offenders must be afforded a realistic
possibility of life outside of prison as a reformed individual. “Although proper
authorities may later determine that [Turner] should remain incarcerated for [his] natural
[life],” standing alone Turner’s sentence of 84 years to life constitutes the functional
equivalent of LWOP in violation of the Eighth Amendment. (Caballero, supra, 55
Cal.4th at p. 268.)
       2.     Section 3051 Cures the Constitutional Violation
       Although we conclude Turner’s sentence violates the Eighth Amendment, recently
enacted section 3051 cures this constitutional deficiency. In response to Graham, Miller,
and Caballero, the Legislature enacted Senate Bill No. 260 to establish section 3051
addressing juvenile sentencing concerns, effective January 1, 2016.
       Section 1 of Senate Bill 260 states in relevant part: “The Legislature finds and
declares that, as stated by the United States Supreme Court in [Miller], ‘only a relatively
small proportion of adolescents’ who engage in illegal activity ‘develop entrenched
patterns of problem behavior,’ and that ‘developments in psychology and brain science
continue to show fundamental differences between juvenile and adult minds,’ including
‘parts of the brain involved in behavior control.’ The Legislature recognizes that
youthfulness both lessens a juvenile’s moral culpability and enhances the prospect that,
as a youth matures into an adult and neurological development occurs, these individuals
can become contributing members of society. The purpose of this act is to establish a
parole eligibility mechanism that provides a person serving a sentence for crimes that he
or she committed as a juvenile the opportunity to obtain release when he or she has
shown that he or she has been rehabilitated and gained maturity, in accordance with the
decision of the California Supreme Court in [Caballero] and the decisions of the United


                                             18
States Supreme Court in [Graham] and [Miller].” (Legis. Counsel’s Dig., Sen. Bill No.
260 (2013–2014 Reg. Sess.) § 1, pp. 2–3.) The Legislature declared its intent “to create a
process by which growth and maturity of youthful offenders can be assessed and a
meaningful opportunity for release established.” (Ibid.)
       Section 3051 provides in pertinent part that subject to inapplicable exceptions, “[a]
person who was convicted of a controlling offense that was committed before the person
had attained 23 years of age and for which the sentence is a life term of 25 years to life
shall be eligible for release on parole by the board during his or her 20th year of
incarceration at a youth offender parole hearing, unless previously released or entitled to
an earlier parole consideration hearing pursuant to other statutory provisions.” (§ 3051,
subds. (b)(3), (h).) “The youth offender parole hearing to consider release shall provide
for a meaningful opportunity to obtain release” and “take into consideration the
diminished culpability of juveniles as compared to that of adults, the hallmark features of
youth, and any subsequent growth and increased maturity of the individual.” (§ 3051,
subds. (e), (f)(1).)
       California Courts of Appeal disagree as to the effect of section 3051 on sentences
in violation of the Eighth Amendment. However, the majority of cases addressing the
issue conclude section 3051 cures any constitutional violation. (See In re Alatriste
(2013) 220 Cal.App.4th 1232, review granted Feb. 19, 2014, S214652; People v. Martin
(2013) 222 Cal.App.4th 98, review granted Mar. 26, 2014, S216139; People v. Franklin
(2014) 224 Cal.App.4th 296, review granted June 11, 2014, S217699; People v.
Gonzalez, supra, 225 Cal.App.4th 1296, review granted July 23, 2014, S219167; People
v. Saetern (2014) 227 Cal.App.4th 1456, review granted Oct. 1, 2014, S220790; People
v. Garcia (2015) 240 Cal.App.4th 1282, review granted Jan. 13, 2016, S230616.)
       In comparison , only a handful of cases conclude section 3051 fails to ameliorate
any constitutional deficiency in sentencing. (See In re Heard (2014) 223 Cal.App.4th
115, review granted Apr. 30, 2014, S216772; In re Rainey (2014) 224 Cal.App.4th 280,
review granted June 11, 2014, S217567 [approving of In re Heard, supra, 223
Cal.App.4th 115 in dicta]; People v. Solis, supra, 224 Cal.App.4th 727, review granted


                                             19
June 11, 2014, S218757; People v. Garrett (2014) 227 Cal.App.4th 675, review granted
Sep. 24, 2014, S220271). Currently pending before the California Supreme Court is the
issue of whether section 3051, which provides that the hearing to consider the above
factors will take place no later than 25 years into a youth offender’s sentence, satisfies the
concerns set forth in Graham, Miller, and Caballero that the factors be considered as part
of the original proceedings.
       In In re Alatriste, supra, 220 Cal.App.4th 1232, the court reasoned that “Graham,
Miller and Caballero merely hold that a juvenile defendant may not be incarcerated for
life or its functional equivalent without some meaningful opportunity for release on
parole during his or her lifetime. These cases do not require that the time when that
meaningful opportunity might occur should be determined at the time of sentencing.”
(Id. at p. 1240.) The new procedure under section 3051 therefore provides juveniles with
the requisite opportunity compelled by these judicial decisions by affording them a
meaningful chance to obtain release based on demonstrated maturity and rehabilitation.
(In re Alatriste, supra, 220 Cal.App.4th at p. 1240; accord, People v. Martin, supra, 222
Cal.App.4th 98.)
       Similarly, in People v. Franklin, supra, 224 Cal.App.4th 296, our colleagues in
Division Three of this judicial district concluded that “[w]hile an effective LWOP
sentence imposed prior to the enactment of . . . section 3051 may have violated
constitutional restrictions when rendered, the new section has provided the parole
opportunity that was constitutionally lacking. Without the recent legislation, defendant
here arguably faced ‘the functional equivalent of a life without parole sentence,’ . . .
triggering the need for the exercise of discretion under Miller. However, with the new
parole eligibility date provided by . . . section 3051, defendant’s sentence is no longer the
functional equivalent of an LWOP sentence and no further exercise of discretion at this
time is necessary.” (Id. at p. 306.) In so holding, the court agreed with the court in In re
Alatriste, supra, 220 Cal.App.4th 1232, that Graham, Miller, and Caballero do not
require “the trial judge at the time of initial sentencing to make a determination as to
when a particular juvenile offender should become eligible for parole consideration,” and


                                             20
noted the procedure under section 3051 allowed parole eligibility to be considered more
intelligently and more fairly than if predicted at the time of sentencing. (Franklin, supra,
224 Cal.App.4th at p. 306; see People v. Gonzalez, supra, 225 Cal.App.4th at pp. 1310-
1311 [application of section 3051, which makes the defendant eligible for parole at age
46, results in a sentence that does not constitute the functional equivalent of LWOP and
therefore Graham, Miller, and Caballero do not apply].)
       At the time of this writing, the only published case addressing section 3051, which
is not subject to pending review by the California Supreme Court is People v. Garcia
(Oct. 5, 2015, E059452) 240 Cal.App.4th 1282 (Garcia). In Garcia, the court held that a
defendant’s sentence of 32 years to life for crimes committed at age 15 did not violate the
Eighth Amendment for two reasons. (Id. at p. 1290.) First, the defendant’s 32-years-to-
life sentence was not an actual or effective life sentence without the possibility of parole.
(Ibid.) By its terms, the sentence allowed for the defendant to seek release at 47 years
old, well within his life expectancy. (Ibid.) And second, “even for sentences that are
actual or effective life sentences, which [Garcia’s] emphatically is not, the recently
enacted section 3051 guarantees defendant a youthful offender [a] parole hearing after
25 yeas, when a 15-year-old offender would be approximately 40 years old.” (Ibid.) In
so holding, the court reasoned that “section 3051 has in effect abolished de facto life
sentences in California. Section 3051 universally provides each juvenile offender
convicted as an adult with a mandatory parole eligibility hearing on a legislatively
specified schedule, and after no more than 25 years in prison.” (Id. at p. 1291.)
       In contrast, the court in In re Heard, supra, 223 Cal.App.4th 115 disagreed with
the conclusion of these opinions on the ground that it allowed the sentencing court to
disregard its constitutional duty at sentencing to consider the differences between
juveniles and adults established in Graham, Miller, and Caballero. (In re Heard, supra,
223 Cal.App.4th at pp. 130-131.) The court interpreted section 3051 as a “ ‘safety net’ to
guarantee a juvenile offender the opportunity for a parole hearing during his or her
lifetime” that did not relieve the sentencing court of its duty to impose a constitutional
sentence for a juvenile defendant. The court reasoned its conclusion was made “all the


                                             21
more true because there is no guarantee that [section 3051] will remain in existence when
[a defendant] would be eligible to benefit from it.” (In re Heard, supra, 223 Cal.App.4th
at pp. 130-131; see People v. Garrett, supra, 227 Cal.App.4th 675, 688-689 [“[t]he
statutory promise to have a future parole board review an improperly considered sentence
does not cure the constitutional error” because it cannot substitute for the sentencing
court’s required consideration of the factors of youth and maturity at the time of
sentencing].)
       Likewise, in People v. Solis, supra, 224 Cal.App.4th 727, the court agreed with In
re Heard that section 3051 should act as “a ‘ “safety net” ’ ” rather than a “cure-all” for
juvenile sentences that violate the Eighth Amendment, for fear that trial courts may forgo
applying the principles of Graham, Miller, and Caballero. (People v. Solis, supra, 224
Cal.App.4th at p. 736.) The court then determined that because the defendant’s juvenile
characteristics were considered at the sentencing hearing, it could cure any constitutional
defect by modifying the sentence to reflect the defendant was entitled to a parole hearing
after serving 25 years in prison. (Id. at pp. 736-737.)
       Pending a ruling from our supreme court, we conclude that section 3051 as applied
to Turner’s sentence satisfies the constitutional mandates articulated in Graham, Miller,
and Caballero. These judicial decisions articulate that given the differences between
juveniles and adults, juveniles are less deserving of the worst punishments. (Graham,
supra, 560 U.S. at p. 68.) Accordingly, in considering a juvenile’s sentence, the
sentencing court must take into account the characteristics of youth that may mitigate the
justifications for imposing the harshest penalties. (Miller, supra, 567 U.S. ___ [132 S.Ct.
at p. 2468].) Absent exceptional circumstances, a sentence will be overly harsh, and thus
constitute cruel and unusual punishment, when it acts as the functional equivalent to
LWOP by affording no meaningful opportunity for parole within the juvenile’s life
expectancy. (Caballero, supra, 55 Cal.4th at pp. 268-269.)
       Under section 3051, Turner will receive a parole hearing in his 25th year of
incarceration, at the age of 40. At his parole hearing, the Board of Parole Hearings will
“take into consideration the diminished culpability of juveniles as compared to that of


                                             22
adults, the hallmark features of youth, and any subsequent growth and increased maturity
of the individual” in considering Turner’s release. (§ 3051, subds. (e), (f)(1).) Section
3051 thus provides Turner with a meaningful opportunity to obtain release based on
demonstrated growth and rehabilitation by affording him his first parole hearing well
within his life expectancy. Like the court in Franklin, supra, 224 Cal.App.4th at
pages 306-307, “[w]e believe that the procedure adopted in . . . section 3051 is preferable
to the determination of parole eligibility dates for juvenile offenders when they are
sentenced. The underlying rationale for constitutionally requiring that juvenile offenders
be afforded an opportunity for meaningful parole is that many will outgrow the youthful
characteristics responsible for their criminal conduct and with maturity become capable
of leading constructive and law-abiding lives. (Miller, supra, 567 U.S. at pp.____, [132
S.Ct. at pp. 2464-2465].) Whether a particular juvenile acquires the maturity and insight
to justify parole certainly can be determined more intelligently and more fairly with the
passage of time, rather than by a prediction at the time of sentencing. The statute
provides predictability for most juvenile offenders and relieves trial judges of the great
uncertainty inherent in setting an alternative parole eligibility date. (See Caballero,
supra, 55 Cal.4th at pp. 268-269, [declining to provide trial courts with a precise
timeframe for setting future parole hearings but requiring sentencing courts to ‘consider
all mitigating circumstances attendant in the juvenile’s crime and life, including but not
limited to his or her chronological age at the time of the crime, whether the juvenile
offender was a direct perpetrator or an aider and abettor, and his or her physical and
mental development, so that it can impose a time when the juvenile offender will be able
to seek parole from the parole board’].)”
       In section 3051, the Legislature has imposed a statutory time when a juvenile
offender may seek release. This is precisely what the court in Caballero, supra, 55
Cal.4th at page 269, footnote 5, urged the Legislature to adopt: “We urge the Legislature
to enact legislation establishing a parole eligibility mechanism that provides a defendant
serving a de facto life sentence without possibility of parole for nonhomicide crimes that
he or she committed as a juvenile with the opportunity to obtain release on a showing of


                                             23
rehabilitation and maturity.” In section 3051, the Legislature has gone further and
created a mechanism applicable to most juvenile offenders, including those guilty of
homicide crimes.
       We therefore conclude that with enactment of section 3051 affording Turner the
opportunity for a parole hearing in his 25th year of incarceration, Turner’s sentence will
satisfy the constitutional requirements of Graham, Miller, and Caballero because he will
receive his first opportunity for parole well within his life expectancy. However, we
must ensure a defendant receives a constitutional sentence at the time of sentencing. (See
Caballero, supra, 55 Cal.4th at pp. 268-269.) Accordingly, out of an abundance of
caution we will modify his sentence to include a minimum parole eligibility date of 25
years. We can thus conclude with certainty that Turner has been provided with a
sentence that passes constitutional muster.
       3.       Ineffective Assistance of Counsel Claim
       In his writ of habeas corpus petition, Turner asserts his counsel was ineffective
because he failed to argue his sentence was unconstitutional under Graham, Miller, and
Caballero, and did not present readily available mitigating evidence of youth and
inexperience.
       “Under existing law, a defense attorney who fails to adequately understand the
available sentencing alternatives, promote their proper application, or pursue the most
advantageous disposition for his client may be found incompetent. [Citations.]” (People
v. Scott (1994) 9 Cal.4th 331, 350-351.)
       “A defendant claiming ineffective assistance of counsel must satisfy Strickland’s
[Strickland v. Washington (1984) 466 U.S. 668] two-part test requiring a showing of
counsel’s deficient performance and prejudice. [Citation.] As to deficient performance,
a defendant ‘must show that counsel’s representation fell below an objective standard of
reasonableness’ measured against ‘prevailing professional norms.’ [Citation.] ‘Judicial
scrutiny of counsel’s performance must be highly deferential,’ a court must evaluate
counsel’s performance ‘from counsel's perspective at the time’ without [ ] ‘the distorting
effects of hindsight,’ and ‘a court must indulge a strong presumption that counsel’s


                                              24
conduct falls within the wide range of reasonable professional assistance . . . .’
[Citation.]” (People v. Jacobs (2013) 220 Cal.App.4th 67, 75 (Jacobs).)
       Even under these highly deferential standards, defense counsel’s performance in
connection with the sentencing was deficient. Defense counsel did not file a sentencing
brief and submitted at the hearing without raising any objections to the probation report.
It is also unclear whether defense counsel even reviewed the probation report with
Turner. Most importantly, defense counsel did not assert any established California
Constitution protections against grossly disproportionate cruel and unusual juvenile
punishments discussed above. In essence, defense counsel did nothing to advocate on
behalf of Turner regarding the sentencing in this case.
       Of course, Turner must also demonstrate prejudice as a result. “The prejudice
prong requires a defendant to establish that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’
[Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence
in the outcome.’ [Citation.]” (Jacobs, supra, 220 Cal.App.4th at p. 75.)
       Turner argues that his case is “materially indistinguishable” from People v.
Speight (2014) 227 Cal.App.4th 1229 (Speight), which held that a 17-year-old defendant
was prejudiced by his attorney’s failure to raise an Eighth Amendment objection to the
length of the sentence imposed. (Id. at pp. 1233, 1248-1249.) Once again, section 3051
is relevant in our analysis of Turner’s claim. Speight did not address the effect of section
3051 on the defendant’s sentence or its application in assessing his claim of ineffective
assistance of counsel. In fact, there is no mention in Speight of section 3051 or Senate
Bill 260 at all. Accordingly, Speight is not dispositive of the issue on appeal.
       Rather, we conclude that even if counsel had raised the challenge Turner now
faults him for omitting, there is no possibility on the record presented on appeal he would
have received in the trial court a sentence with an earlier parole eligibility date than under
section 3051. Moreover, as Turner’s sentence was not unconstitutional, it follows that his
counsel was not ineffective for failing to argue that it was.



                                             25
D.     Probation Investigation Fee
       At Turner’s sentencing hearing, the trial court imposed a probation investigation
fee of $710. Defense counsel asked if the court would consider waiving the fee “in view
of the sentence.” The court responded that it lacked the authority to waive the fee under
section 1203.1, but agreed to reduce the fee to $200.
       Turner argues, and the Attorney General concedes, that the trial court erred by
finding that it could not waive the probation investigation fee. Section 1203.1b,
subdivision (a) “requires the probation officer to determine a defendant’s ability to pay
all, or a portion of the reasonable cost of probation supervision and probation report
preparation. The statute also requires the probation officer to inform the defendant he has
a right to have the court determine his ability to pay and the payment amount. The
defendant may waive the right to such a determination only by a knowing and intelligent
waiver. ([]§ 1203.1b, subd. (a).) Absent such a waiver, a court must conduct an
evidentiary hearing. If the court determines the defendant is able to pay all or part of the
costs, the court is required to set the amount of the payment and order the defendant to
pay that amount to the county in a manner that is reasonable and compatible with the
defendant’s financial ability. ([]§ 1203.1b, subd. (b).) The statute also provides for
additional hearings during the period of probation to review the defendant's ability to pay
the probation costs. ([]§ 1203.1b, subd. (c).)” (People v. Hall (2002) 103 Cal.App.4th
889, 892-893.)
       Although the probation officer recommended a $710 fee, there is no indication the
probation officer determined Turner’s ability to pay the fee. The probation officer noted
that 18-year old Turner had never been employed and had no verifiable income. It is
unclear whether Turner was informed of his statutory right under section 1203.1b to have
the court determine his ability to pay the fee, as required. (People v. Hall, supra, 103
Cal.App.4th at p. 893.) Moreover, there is no indication Turner waived his rights to a
court hearing and judicial determination. The court did not conduct a hearing or receive
evidence regarding Turner’s financial ability to pay the probation investigation fee. The
court made no finding regarding Turner’s ability to pay all or part of the probation fees.


                                             26
       As the court in People v. Hall, supra, 103 Cal.App.4th 889 explained, “section
1203.1b does not specify the procedure a trial court should follow if it determines a
defendant is unable to pay any part of his probation costs. The obvious implication from
the language of . . . section 1203.1b, subdivision (b)(2), however, is that the court should
not order the defendant to pay any portion of the costs. This conclusion follows from the
following language: ‘if the court determines that the defendant has the ability to pay all
or part of the costs, the court shall set the amount to be reimbursed and order the
defendant to pay that sum to the county . . . .’ ([], § 1203.1b, subd. (b)(2).) If the court
determines the defendant lacks the ability to pay any part of the costs, it cannot,
consistent with section 1203.1b, subdivision (b)(2), order the defendant to reimburse the
county for any costs.” (People v. Hall, supra, 103 Cal.App.4th at pp. 893-894, italics
added.)
       Here, the court ordered Turner to reimburse the county for his probation
investigation fee in the amount of $200. The court’s order was no doubt well-
intentioned, but nonetheless erroneous. The trial court’s order requiring Turner to pay
$200 is stricken.




                                    IV. DISPOSITION
       Turner’s sentence is modified to reflect he shall be entitled to a parole hearing
after serving 25 years in prison. Additionally, the $200 probate investigation fee shall be




                                              27
stricken. The clerk of the trial court is directed to prepare a new abstract of judgment
with these modifications and to send a certified copy thereof to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed. The
petition for writ of habeas corpus is denied.



                                                     _________________________
                                                     REARDON, ACTING P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.




                                                28
Trial Court:                             Alameda County Superior Court



Trial Judge:                             Hon. Vernon K. Nakahara



Counsel for Appellant:                   Jonathan Soglin
                                         Jeremy Price
                                         First District Appellate Project



Counsel for Respondents:                 Kamala D. Harris
                                         Attorney General
                                         Dane R. Gillette
                                         Chief Assistant Attorney General
                                         Gerald A. Engler
                                         Senior Assistant Attorney General
                                         Rene A. Chacon
                                         Supervising Deputy Attorney General
                                         Joan Killeen
                                         Deputy Attorney General




People v. Turner, In re Turner A138649, A142829




                                                  29
