Filed 9/29/16 P. v. Diaz CA5
Opinion following remand




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068070
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF107543)
                   v.

MARIANO DIAZ, JR.,                                                                       OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Darryl B.
Ferguson, Judge.
         Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Galen Farris
and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                    INTRODUCTION
       Appellant Mariano Diaz, Jr., received a prison sentence of 55 years to life for
crimes he committed when he was 17 years old. In our unpublished opinion in People v.
Diaz (Aug. 19, 2015, F068070), we determined his sentence did not violate the Eighth
Amendment as a functional equivalent of a life sentence without the possibility of parole
(LWOP). We reached that conclusion in light of Penal Code section 3051,1 which gives
him a parole eligibility hearing during his 25th year of incarceration. (§ 3051, subd.
(b)(3).)
       The California Supreme Court granted review of our opinion and ordered briefing
deferred pending decision in People v. Franklin, S217699. On May 26, 2016, the
Supreme Court decided People v. Franklin (2016) 63 Cal.4th 261 (Franklin), and
transferred this matter back to this court with directions to vacate our decision and
reconsider the cause in light of Franklin at pages 268-269 and 283-284.
       In light of Franklin, we again affirm appellant’s sentence because he has a
meaningful opportunity for release during his 25th year of incarceration. As such, his
constitutional claim is moot. (Franklin, supra, at pp. 268, 279-280.) However,
consistent with Franklin, we remand this matter to the trial court for the purpose of
determining whether appellant was afforded an adequate opportunity to make a record of
information that will be relevant to the Board of Parole Hearings (Board) at his future
eligibility hearing. We affirm but remand for that limited purpose.
                 FACTUAL AND PROCEDURAL BACKGROUND
I.     The Underlying Crime.
       These facts are taken from this court’s nonpublished opinion in People v. Diaz
(Dec. 22, 2008, F052637). In March 2003, appellant, a gang member, fired a handgun in
Tulare County at two rival gang members. He used gang slurs just prior to the attack and

1      All future statutory references are to the Penal Code unless otherwise noted.


                                             2.
he fired his weapon after an older male told him to shoot. One of the victims suffered
multiple gunshot wounds but survived. Appellant fled the scene and was not
apprehended until September 2005. He was 17 years old when these crimes occurred.
       In 2007, a Tulare County jury convicted appellant of two counts of attempted
premeditated murder (§§ 664/187, subd. (a); counts 1 & 2) and two counts of assault with
a deadly weapon (§ 245, subd. (a); counts 3 & 4). Several gun use enhancements, a great
bodily injury enhancement, and a criminal street gang enhancement were all found true.
(§§ 186.22, subd. (b), 12022.7, subd. (a), 12022.53, subds. (c)-(d).) Appellant was
sentenced to a total term of 75 years to life. On December 22, 2008, this court affirmed
the judgment and the Supreme Court subsequently denied review. (People v. Diaz
(Dec. 22, 2008, F052637) [nonpub. opn.], review denied March 11, 2009, S170006.)
II.    The Habeas Corpus Petitions.
       In 2011, appellant filed a petition for writ of habeas corpus in this court, arguing
his sentence was a de facto LWOP and violated the Eighth Amendment, in part, under
Graham v. Florida (2010) 560 U.S. 48 (Graham). (In re Mariano Diaz, Jr., on Habeas
Corpus (June 2, 2011, F062572).) In 2012, our Supreme Court issued People v.
Caballero (2012) 55 Cal.4th 262 (Caballero), which held the Eighth Amendment’s
prohibition against cruel and unusual punishment is violated in a nonhomicide case when
a juvenile offender is sentenced to a term of years with a parole eligibility date that falls
outside the juvenile’s natural life expectancy. (Caballero, supra, at p. 268.)
       On August 29, 2012, this court denied appellant’s petition without prejudice in
light of Caballero. Appellant was permitted to file a petition for writ of habeas corpus in
the trial court to allow the lower court to weigh the mitigating evidence and determine the
extent of incarceration before a parole eligibility hearing. (In re Mariano Diaz, Jr., on
Habeas Corpus (Aug. 29, 2012, F062572) [nonpub. opn.].) Appellant subsequently filed
a habeas petition in the trial court, which ultimately resulted in a second sentencing
hearing.

                                              3.
III.   The Resentencing.
       On September 11, 2013, the trial court conducted a hearing to modify appellant’s
sentence. Appellant’s counsel filed a statement in mitigation prior to the resentencing
hearing. The statement outlined the requirements of Graham and Caballero, and argued
the trial court’s indicated sentence of 55 years to life would violate those authorities.
Defense counsel took the position appellant’s life expectancy was 78.9 years based on the
United States Life Tables by Hispanic Origin, Vital and Health Statistics (October 2010)
Series 2, No. 152, p. 18 from the United States Department of Health and Human
Services, Centers for Disease Control and Prevention. The defense pointed out
appellant’s youthfulness, lack of a criminal history, and strong support from friends and
family as evidenced by numerous letters submitted in support in his original probation
file. The defense also submitted that he was a member of a gang, and subjected to
intense peer pressure and codes of behavior, and appellant reluctantly engaged in the
shooting after an adult gang member told him to shoot. The defense outlined the
California Rules of Court factors affecting probation and mitigation before concluding
that the court should use counts 3 and 4 rather than counts 1 and 2 as the unstayed terms,
and impose concurrent rather than consecutive terms.
       Prior to the resentencing hearing, the prosecution filed a sentencing brief which
argued appellant’s anticipated minimum parole eligibility date was September 5, 2060,
based on his custody credits from the time of his arrest on September 5, 2005. Based on
the trial court’s indicated sentence of 55 years, the prosecution asserted both Graham and
Caballero were satisfied, in part, because appellant would be 74 years old at that time of
parole eligibility, which would be more than four years before his statistical life
expectancy.
       On September 11, 2013, the trial court heard oral arguments from appellant’s
counsel and the prosecution. Appellant’s counsel stated, in part, that the trial court’s
indicated sentence of 55 years would give appellant a minimum parole eligibility when

                                              4.
he was 74 or 76 years old, which would provide him a life expectancy of approximately
“two point something years longer than that.” Defense counsel argued this approach ran
against the “thrust” of Graham and Caballero, which required that the juvenile offender
have a “meaningful or realistic opportunity” to show rehabilitation.
       The prosecution argued appellant’s statistical life expectancy was 80 years old
based on an unidentified report from the United States Government, which was handed to
the court during the arguments. The prosecution contended the indicated sentence was
proper under Caballero because it gave appellant a chance at parole within his lifetime,
and appellant was not guaranteed a “long happy life afterwards.”
       At the conclusion of oral arguments, the trial court modified appellant’s sentence
to 55 years to life in prison, broken down in relevant portion as follows:
       Count 1: 15 years to life (§§ 664/187, subd. (a)) plus an additional consecutive 25
years to life (§ 12022.53, subd. (d));
       Count 2: 15 years to life (§§ 664/187, subd. (a)) consecutive to count 1;
       Count 3: three years (§ 245, subd. (a)), which was stayed (§ 654); and
       Count 4: three years (§ 245, subd. (a)), which was stayed (§ 654).
       The court struck or stayed all remaining enhancements found true by the jury. The
court awarded appellant credit with 3,014 days in custody.
                                         DISCUSSION
       On appeal before this court in People v. Diaz (Aug. 19, 2015, F068070), appellant
asserted that his modified sentence of 55 years to life is unconstitutional as it continues to
represent cruel and unusual punishment under Graham, supra, 560 U.S. 48 and
Caballero, supra, 55 Cal.4th 262. He argued he will not be eligible for parole within his
life expectancy or, if he is, it will be for only several “meaningless” years. He further
contended Senate Bill No. 260 does not render moot his constitutional challenge and the
need for resentencing.



                                              5.
       Respondent countered that appellant does not have a de facto life sentence because
the trial court gave him a parole eligibility date within his life expectancy, meeting the
requirements of Graham and Caballero. Respondent further contended Senate Bill No.
260 has rendered moot any need for further resentencing. In our unpublished opinion in
People v. Diaz (Aug. 19, 2015, F068070), we agreed with respondent and rejected
appellant’s claims. After considering Franklin, supra, 63 Cal.4th 261, we again affirm
appellant’s sentence.
I.     The Controlling Cases Prior To Franklin.
       Relevant to our discussion, we provide an overview of the three controlling cases
prior to Franklin regarding the Eighth Amendment and juvenile sentencing.
       First, in Graham, supra, 560 U.S. 48, it was held that the Eighth Amendment
prohibits states from sentencing a juvenile convicted of nonhomicide offenses to LWOP.
(Graham, supra, at p. 75.) The Supreme Court noted a “moral” difference between
homicide and nonhomicide crimes, and it commented on various scientific data showing
the developmental differences between juvenile and adult minds, including the ability of
juveniles to change more readily than adults. (Id. at pp. 68-69.) Graham determined that
a state, while not required to guarantee eventual freedom to a juvenile offender, must give
such offenders “some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” (Id. at p. 75.) A state is prohibited from making a judgment
at the outset that a juvenile offender will never be fit to reenter society. (Ibid.)
       Second, in Miller v. Alabama (2012) 567 U.S.           [132 S.Ct. 2455] (Miller) the
court held that the Eighth Amendment prohibits the imposition of a mandatory LWOP
sentence on a juvenile offender even in a case of homicide. (Miller, supra, 132 S.Ct. at
p. 2469.) Miller determined that the Eighth Amendment does not necessarily foreclose
an LWOP sentence on a juvenile but the trial court, before imposing such a sentence,
must “take into account how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.” (Miller, supra, 132 S.Ct. at

                                               6.
p. 2469.) Miller sets forth a list of factors for the trial court to determine before imposing
an LWOP sentence, including “immaturity, impetuosity, and failure to appreciate risks
and consequences”; whether “the family and home environment that surrounds” the
juvenile is “brutal and dysfunctional”; “the circumstances of the homicide offense,
including the extent of his participation in the conduct and the way familial and peer
pressures may have affected him”; and “the possibility of rehabilitation.” (Miller, supra,
132 S.Ct. at p. 2468.) LWOP may then be sentenced if the court, after considering all the
relevant information, determines the case involves one of the “‘rare juvenile offender[s]
whose crime reflects irreparable corruption.’ [Citations.]” (Miller, supra, 132 S.Ct. at
p. 2469.)
       Finally, in Caballero, supra, 55 Cal.4th 262, our Supreme Court reviewed
Graham and Miller and held the Eighth Amendment’s prohibition against cruel and
unusual punishment is violated in a nonhomicide case when a juvenile offender is
sentenced to a term of years with a parole eligibility date that falls outside the juvenile’s
natural life expectancy. (Caballero, supra, at p. 268.) In Caballero, the juvenile
defendant received a 110-year-to-life sentence after he was convicted of three counts of
attempted murder. The Caballero court concluded the sentence was the “functional
equivalent” of LWOP and it reversed because the Eighth Amendment was violated.
(Caballero, supra, at pp. 267-268.)
       In reversing, Caballero emphasized Graham’s requirement that a state must
provide a juvenile offender with a “‘meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation’” within his or her expected lifetime.
(Caballero, supra, 55 Cal.4th at p. 269.) The state may not deprive juvenile offenders “at
sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to
reenter society in the future.” (Id. at p. 268.) Our Supreme Court stated “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,

                                              7.
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 [Board]. The [Board] will then determine
whether the juvenile offender must be released from prison ‘based on demonstrated
maturity and rehabilitation.’ [Citation.]” (Id. at pp. 268-269.)
       Caballero, however, neither analyzed nor determined how much potential life
expectancy a state must provide a juvenile offender beyond the initial parole eligibility
hearing date in order to satisfy the Eighth Amendment.
II.    Franklin Found No Eighth Amendment Violation.
       In Franklin, the defendant was 16 years old when he shot and killed another
teenager. He was convicted of first degree murder and a firearm-discharge enhancement
was found true. He received two consecutive 25-year-to-life sentences in prison.
(Franklin, supra, 63 Cal.4th at p. 268.) Our Supreme Court granted review to answer
two questions: “Does … section 3051 moot [the defendant’s] constitutional challenge to
his sentence by requiring that he receive a parole hearing during his 25th year of
incarceration? If not, then does the state’s sentencing scheme, which required the trial
court to sentence [the defendant] to 50 years to life in prison for his crimes, violate
Miller’s prohibition against mandatory LWOP sentences for juveniles?” (Ibid.) Franklin
held that sections 3051 and 4801 mooted the defendant’s constitutional claim, making it
unnecessary to answer the second question. (Ibid.)
       Senate Bill No. 260 became effective January 1, 2014, and it added sections 3051,
3046, subdivision (c), and 4801, subdivision (c), to the Penal Code. (Franklin, supra, 63
Cal.4th at p. 276.) “[T]he Legislature passed Senate Bill No. 260 explicitly to bring
juvenile sentencing into conformity with Graham, Miller, and Caballero.” (Franklin,
supra, 63 Cal.4th at p. 277.)
       Section 3051 provides that “any prisoner who was under 23 years of age at the
time of his or her controlling offense” shall be afforded a “youth offender parole hearing”

                                              8.
before the Board. (§ 3051, subd. (a)(1).) Juvenile offenders with determinate sentences
of any length shall receive a hearing during the 15th year of incarceration. (Id., subd.
(b)(1).) Those sentenced to life terms of less than 25 years to life shall receive a hearing
during the 20th year of incarceration. (Id., subd. (b)(2).) Those sentenced to an
indeterminate base term of 25 years to life will receive a hearing during the 25th year of
incarceration.2 (§ 3051, subd. (b)(3).) The hearing “shall provide for a meaningful
opportunity” for the former juvenile defendant to obtain release. (Id., subd. (e).) When
considering a juvenile offender’s parole suitability, the Board is 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 in accordance
with relevant case law.” (§ 4801, subd. (c), see also § 3051, subd. (f)(1).)
       “Section 3051 thus reflects the Legislature’s judgment that 25 years is the
maximum amount of time that a juvenile offender may serve before becoming eligible for
parole. Apart from the categories of offenders expressly excluded by the statute, section
3051 provides all juvenile offenders with a parole hearing during or before their 25th year
of incarceration. The statute establishes what is, in the Legislature’s view, the
appropriate time to determine whether a juvenile offender has ‘rehabilitated and gained
maturity’ (Stats. 2013, ch. 312, § 1) so that he or she may have ‘a meaningful opportunity
to obtain release’ (§ 3051, subd. (e)).” (Franklin, supra, 63 Cal.4th at p. 278.)
       After reviewing the relevant law, Franklin held that the combined operation of
Senate Bill No. 260 gave the defendant a meaningful opportunity for release, and the
defendant’s sentence was neither LWOP nor its functional equivalent. (Franklin, supra,




2       Section 3051 does not apply to certain limited inapplicable exceptions, including
sentencing pursuant to section 1170.12, subdivisions (b) to (i), inclusive, of section 667,
or section 667.61, or where the juvenile was sentenced to life in prison without the
possibility of parole. (§ 3051, subd. (h).)


                                             9.
63 Cal.4th at pp. 279-280.) Accordingly, no Miller claim was present. (Franklin, supra,
at p. 280.)
       Here, in the prior briefing before us, the parties did not agree on appellant’s
“normal life expectancy” and they disputed whether or not his current sentence is the
functional equivalent of LWOP. Appellant cited data from, and requested that we take
judicial notice of, the Centers for Disease Control and Prevention, National Vital
Statistics Reports, showing his shortest life expectancy of 71.9 years when measured
from his birth year. He noted other longer life expectancies exist depending on how the
data is viewed. He argued he will not be eligible for parole until he is 72 years old (17 +
55), and further contended reaching that age may be optimistic when the health hazards
of prison life are considered.
       Respondent asserted we should disregard appellant’s life expectancy data on
appeal because it was outside the appellate record, was not considered by the trial court,
and is contrary to the life expectancy of 78.9 years that the parties submitted to the trial
court at the resentencing hearing. In any event, respondent contended appellant’s current
sentence is not a de facto LWOP because his minimum parole eligibility date falls within
his natural life expectancy.
       In light of Franklin, these disputed issues are no longer relevant to a material
issue. As such, we deny appellant’s request to take judicial notice of the National Vital
Statistics Reports, United States Life Tables, attached to his opening brief as exhibits A
and B. (Evid. Code, § 452; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24
Cal.4th 415, 422, fn. 2 [“any matter to be judicially noticed must be relevant to a material
issue.”.) Pursuant to the holding in Franklin, appellant’s sentence is neither LWOP nor
its functional equivalent regardless of his disputed life expectancy because he has “a
meaningful opportunity for release during his 25th year of incarceration.” (Franklin,
supra, 63 Cal.4th at pp. 279-280.) Accordingly, appellant’s constitutional claim is moot.
(Franklin, supra, at pp. 268, 279-280.)

                                             10.
III.   We Remand The Matter To Ensure A Complete Record.
       As a class, juveniles are “ ‘constitutionally different from adults’ due to
‘distinctive attributes of youth’ that ‘diminish the penological justifications for imposing
the harshest sentences on juvenile offenders.’ ” (Franklin, supra, 63 Cal.4th at p. 283,
quoting Miller, supra, 567 U.S. at p.      [132 S.Ct. at p. 2458].) “Among these
‘hallmark features’ of youth are ‘immaturity, impetuosity, and failure to appreciate risks
and consequences,’ as well as the capacity for growth and change.” (Franklin, supra, 63
Cal.4th at p. 283, quoting Miller, supra, 567 U.S. at p.      [132 S.Ct. at p. 2468].)
       Senate Bill No. 260 contemplated “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. For example,
section 3051, subdivision (f)(2) provides that ‘[f]amily members, friends, school
personnel, faith leaders, and representatives from community-based organizations with
knowledge about the individual before the crime … may submit statements for review by
the board.’ Assembling such statements ‘about the individual before the crime’ 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.” (Franklin, supra,
63 Cal.4th at pp. 283-284, quoting § 3051, subd. (f)(2).) “In addition, section 3051,
subdivision (f)(1) provides that any ‘psychological evaluations and risk assessment
instruments’ used by the Board in assessing growth and maturity ‘shall take into
consideration … any subsequent growth and increased maturity of the individual.’
Consideration of ‘subsequent growth and increased maturity’ implies the availability of
information about the offender when he was a juvenile.” (Franklin, supra, 63 Cal.4th at
p. 284, quoting § 3051, subd. (f)(1).) At a juvenile’s parole eligibility hearing, the Board
is to give “great weight to the diminished culpability of juveniles as compared to adults,



                                             11.
the hallmark features of youth, and any subsequent growth and increased maturity of the
prisoner in accordance with relevant case law.” (§ 4801, subd. (c).)
       In Franklin, the Supreme Court determined it was unclear whether the defendant
“had sufficient opportunity to put on the record the kinds of information that sections
3051 and 4801 deem relevant at a youth offender parole hearing.” (Franklin, supra, 63
Cal.4th at p. 284.) The defendant had been sentenced in 2011, before Miller was decided
and before enactment of Senate Bill No. 260. (Franklin, supra, 63 Cal.4th at p. 282.)
The trial court admitted very little materials in mitigation because it recognized a lack of
discretion in sentencing. (Id. at pp. 282-283.) As such, Franklin remanded the matter so
the trial court could determine whether the defendant “was afforded sufficient
opportunity to make a record of information relevant to his eventual youth offender
parole hearing.” (Id. at p. 284.) The Supreme Court noted the defendant need not be
resentenced and his two consecutive 25-year-to-life sentences remained valid. (Ibid.)
       Here, appellant was resentenced in 2013 before enactment of Senate Bill No. 260.
During the 2013 resentencing, the parties focused on the appropriate length of sentence,
and whether the court’s indicated sentence was constitutional or not. Given the change in
the legal landscape regarding juvenile sentencing, it is unclear whether appellant “had
sufficient opportunity to put on the record the kinds of information that sections 3051 and
4801 deem relevant at a youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at
p. 284.) As such, consistent with Franklin, we remand the matter so the trial court can
determine whether appellant “was afforded sufficient opportunity to make a record of
information relevant to his eventual youth offender parole hearing.” (Id. at p. 284.)
Appellant need not be resentenced and his sentence of 55 years to life remains valid.
       Franklin set forth the following guidelines upon remand. “If the trial court
determines that [the defendant] did not have sufficient opportunity, then the court may
receive submissions and, if appropriate, testimony pursuant to procedures set forth in
section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of

                                             12.
evidence. [The defendant] may place on the record any documents, evaluations, or
testimony (subject to cross-examination) that may be relevant at his eventual youth
offender parole hearing, and the prosecution likewise may put on the record any evidence
that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise
bears on the influence of youth-related factors. The goal of any such proceeding is to
provide an opportunity for the parties to make an accurate record of the juvenile
offender’s characteristics and circumstances at the time of the offense so that the Board,
years later, may properly discharge its obligation to ‘give great weight to’ youth-related
factors (§ 4801, subd. (c)) in determining whether the offender is ‘fit to rejoin society’
despite having committed a serious crime ‘while he was a child in the eyes of the law’
[citation].” (Franklin, supra, 63 Cal.4th at p. 284.)
                                      DISPOSITION
       The judgment is affirmed. The matter is remanded to the trial court for the limited
purpose of determining, consistent with this opinion and Franklin, supra, 63 Cal.4th at
pages 268-269, 283-284, whether appellant was afforded an adequate opportunity to
make a record of information that will be relevant to the Board as it fulfills its statutory
obligations under sections 3051 and 4801.

                                                                  _____________________
                                                                        LEVY, Acting P.J.
WE CONCUR:


 _____________________
KANE, J.


 _____________________
POOCHIGIAN, J.




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