Filed 8/12/16 P. v. Leavy CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069687
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F12904662)
                   v.

MARQUISE D. LEAVY,                                                                       OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
         Allen G. Weinberg, 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, Stephen G. Herndon and Max
Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Appellant/defendant Marquise D. Leavy (defendant), a member of the Hoover
Crips gang, used a shotgun to commit a drive-by shooting at two brothers, Maurice and
Marquise Graves, who were affiliated with the rival Northside gang. Maurice Graves
was killed and Marquise was wounded.
       After a jury trial, defendant was convicted of count I, first degree murder of
Maurice Graves (Pen. Code, §187, subd. (a))1 with two special circumstances: the
murder was committed by intentionally discharging a firearm from a motor vehicle
(§ 190.2, subd. (a)(21)); and the murder was intentional, defendant was an active
participant in a criminal street gang, and it was committed to further the activities of a
criminal street gang (§ 190.2, subd. (a)(22)). Defendant was also convicted of count II,
attempted premeditated murder of Marquise Graves (§ 187, subd. (a)), § 664, subd. (a)),
with firearm enhancements found true for both counts (§ 12022.53, subd. (d)).2
       Defendant was 16 years old when he committed the murder. As we will discuss
below, the United States Supreme Court has held that the Eighth Amendment to the
federal Constitution prohibits a mandatory life without parole (LWOP) sentence for a
juvenile offender who commits homicide; the sentencing court must have individualized
discretion to impose a less severe sentence; and in exercising that discretion, the court
must take into account specific youth-related mitigating factors. (Miller v. Alabama
(2012) 567 U.S. __ [132 S.Ct. 2455, 2460, 2468–2469] (Miller).)
       At the sentencing hearing in this case, the court made lengthy findings pursuant to
Miller and declined to sentence defendant to an LWOP term. Instead, the court sentenced
him to 25 years to life for count I, first degree murder; a consecutive term of 25 years to




       1   All further statutory references are to the Penal Code unless otherwise indicated.
       2 The information also alleged gang enhancements for both counts (§ 186.22,
subd. (b)(1)). However, the court dismissed the gang allegations after the jury was
discharged, when it realized the jury failed to make any findings on those allegations
because the verdict forms were never sent to the jury room.

                                               2.
life for the firearm enhancement; life with the possibility of parole for count II, attempted
murder; plus 25 years to life for the second firearm enhancement.3
       In his opening appellate brief, defendant argued his sentence was the functional
equivalent of an LWOP term, and violated the Eighth Amendment and Miller.
       While this case was pending on appeal, the California Supreme Court addressed
and rejected the identical arguments in People v. Franklin (2016) 63 Cal.4th 261
(Franklin). Thereafter, we asked the parties for further briefing. Defendant
acknowledged the holding in Franklin, argued that it was wrongly decided, and requested
remand of his case for further sentencing proceedings.
       While defendant’s constitutional challenges to his sentence have been rejected in
Franklin, we order a limited remand of the matter for additional proceedings out of an
abundance of caution – not to modify his sentence, but to preserve the record in
anticipation of defendant’s eventual section 3051 parole hearing in the 25th year of his
incarceration. We also direct the abstract of judgment be corrected as explained below.
                                          FACTS
       Marquise “Sleepy” Graves (Marquise) and his brother Maurice “Juice” Graves
(Maurice)4 were members of the Pleasant gang, which was affiliated with the Northside
gang. Marquise, who survived the shooting and testified at defendant’s trial, knew their
gang was having issues with the Hoover gang.
       Marquise testified that he and his brother did not know defendant and/or
defendant’s 12-year-old brother, Lorenzo Leavy (Lorenzo). They had never confronted



       3In contrast to the court’s oral pronouncement of judgment, the abstract of
judgment and minute order erroneously state that defendant’s aggregate term was life
with parole plus 50 years to life. We order the trial court to correct the abstract of
judgment on remand.
       4  Since several parties have the same last name, we will refer to certain people by
their first names for ease of reference; no disrespect is intended.


                                             3.
or pulled a gun on either of them. Marquise further testified they never had any type of
confrontation with someone from the Hoover gang.
       Defendant and his brother, Lorenzo, were part of the Hoover Crips gang. Lorenzo
testified they had problems with rival gang members who lived in their apartment
complex.
The murder
       Around 11:45 p.m. on June 24, 2012, Marquise and Maurice were walking home
on West Robinson Avenue near Atlas Way in Fresno. Marquise testified that he and his
brother were not carrying weapons that night.
       Mauquise testified that a car pulled up and stopped on the street in front of them.
At trial, Marquise testified he did not recognize the car and could not clearly see the
number of occupants. Shortly after the murder, however, Marquise told the police that he
saw three African-Americans in the car: a woman was driving, and two men were with
her.
       Marquise testified that someone in the car yelled “North,” representing Northside.
Marquise believed the person in the car was trying to lure them closer by making them
think the occupants were friendly. Marquise later decided that the person who shouted
“North” was not from the Northside gang, and it was “just a front.”
       Marquise testified that he and his brother stopped walking. Within a few seconds,
a shot was fired at them from the car’s backseat, behind the driver’s seat. The bullet
fragments grazed Marquise’s chest, and both brothers tried to run away. Marquise
testified he heard a second shot and Maurice fell down. Marquise turned back and tried
to help his brother.
       Michelle Martinelli lived in the neighborhood and was standing outside her
apartment. She saw a light colored car, possibly white or silver, slowly drive down the
street and then stop. A few moments later, she heard a gunshot and saw a flash of light



                                             4.
from the car. She ran inside her residence. About five seconds later, she heard a second
gunshot. The vehicle sped away and she called 911.
The fatal wound
        The police responded to the scene and found Maurice lying face down on the
ground, bleeding from a shotgun wound. Marquise was holding Maurice’s body, and he
was very emotional.
        Marquise suffered a nonfatal chest wound from a shotgun slug that grazed his
body.
        Emergency personnel transported Maurice to the hospital, where he died from
wounds inflicted by a single shotgun slug, which entered the left side of his spine. The
slug went through Maurice’s spinal cord and ribs, damaged the right lung, and lodged in
his right chest.
        An expended shotgun shell casing was found at the murder scene.
        There was an imprint found on the back of Maurice’s right elbow, which was
consistent with being made by a shotgun wad, the packaging material for a slug inside a
shotgun shell. The wadding did not penetrate Maurice’s body, which indicated that the
weapon would have been as close as 12 to 15 feet from him when it was fired.
The investigation
        On June 25, 2012, the day after the murder, the police obtained a videotape from a
security camera at an apartment complex near the crime scene. Officer Chris Serrano
testified the videotape showed a vehicle at the intersection of Atlas and West Robinson at
11:47 p.m. The car made a slight turn and stopped, and the vehicle’s lights were still on.
A flash was visible from the car’s interior, followed by a second flash from the interior,
consistent with a shotgun being discharged. The car made a U-turn and left the scene.
        Also on June 25, 2012, Officer Serrano learned of a “Crime Stoppers” tip
regarding the murder. He conducted a records search and found a report of a stolen
vehicle, which was relevant to the tip.

                                             5.
       Based on that information, Officer Serrano contacted Latasha “Chloe” Fradue
(Fradue). She had filed a report at 12:51 p.m. on June 25, 2012, that her rented silver
Ford sedan had been stolen. Serrano issued an “all points bulletin” for the vehicle,
indicating it was associated with defendant and the murder of Maurice.
       At approximately 6:30 p.m., Officer Tim Sullivan saw the car parked in front of a
house on South Weldon. Defendant was sitting in the driver’s seat, and three other
people were in the car. Defendant was taken into custody without incident for possession
of a reported stolen car. Defendant’s brother, Lorenzo, was not in the car.
       Officer Serrano testified the other three occupants of the car were questioned
about the murder and released. The car was searched, but the officers did not find any
firearms, ammunition, gunshot residue, or forensic evidence connected to the murder.
Defendant’s postarrest interview
       Officer Serrano met defendant at the police department and conducted a recorded
interview with him around midnight on June 26, 2012. Defendant was 16 years old (born
1995). Serrano advised defendant of the Miranda5 warnings, and defendant agreed to
answer questions.
       Officer Serrano asked defendant about the car. Defendant said he borrowed the
car from Chloe Fradue without her permission.
       Officer Serrano asked defendant if he had been in that car on the night of June 24,
2012. He also asked defendant about the shooting on West Robinson. Defendant said he
was not there at that time. He didn’t take Fradue’s car until around 11:00 a.m. on June
25, 2012, and his brother, Lorenzo, was with him.
       On further questioning, defendant changed his story and said he was a passenger
in the front seat of Fradue’s car, and he was at the intersection of West Robinson and
Atlas. He would not reveal the driver’s name.

       5   Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).


                                            6.
      Officer Serrano asked defendant if he had seen Maurice and Marquise Graves.
Defendant again changed his story and said he was the driver and no one else was with
him. Defendant said he saw the two men walking on the street. Defendant said he
recognized the men, but he did not know their names. A few weeks earlier, two African-
American males in a car had confronted defendant’s brother in the same area. The men
said they were in the Northside gang, and they thought Lorenzo was in the rival Hoover
gang. One of the men, who had braids, pulled a gun and chased Lorenzo out of the area.
      Defendant said when he saw the two men on the street that night, he thought they
were the same Northside men who had confronted Lorenzo because they also had braids.
Defendant said a shotgun was in the car trunk. Fradue had bought it about a week earlier.
Defendant reached through the backseat cushions into the trunk, and pulled the shotgun
into the car’s passenger compartment. Defendant decided he was going to scare the two
men with the shotgun.
      Defendant said he drove up to the two men and spoke to them through the front
passenger window. He asked if they had pulled a gun on his brother. The men asked
defendant for his brother’s name. Defendant replied his brother’s name was Lorenzo.
The men said yes. Defendant said the men argued with him.
      Defendant became mad and raised the shotgun, but he put the safety on. He
pointed the shotgun out of the front passenger window, pulled the trigger, and it made a
“click” sound. The two men started to run away. Defendant said one man (later
identified as Marquise) stopped and looked back at the car. This man told the second
man (later identified as Maurice) to stop running because the gun was malfunctioning.
      Defendant said he continued to pull the trigger to make the clicking sound because
the safety was on, but the shotgun discharged. The gun recoiled and hit defendant in the
forehead. Officer Serrano testified that he noticed a fresh abrasion on defendant’s
forehead, consistent with such a motion.



                                            7.
       Defendant said he was dazed from the gun hitting him in the forehead. His finger
continued to depress the trigger, and the gun went off by itself and discharged a second
shot. Defendant said one man immediately fell to the ground.
       Officer Serrano testified that defendant said he pulled the trigger three times and
heard the “click” sound. Defendant claimed that he never turned off the safety, but the
admitted the gun discharged twice.
       Defendant said he drove away and returned to Fradue’s house. He left the car
there, and then walked home and took a shower. He later returned to Fradue’s house and
told her what happened. Fradue said she was going to return the rental car. She never
said she was going to report it stolen. Defendant said he gave the shotgun to someone
who knew Fradue and/or her father, and the weapon was now “somewhere far out there
like the country.”
       Officer Serrano asked defendant to describe the shotgun. Defendant said Fradue
bought it, and it was a “rusty old gun.” The barrel was chopped off, it had a pistol grip,
and it was about two feet long. Serrano asked defendant if either of the two victims had a
weapon, and defendant said no. Serrano asked if he spoke to one particular man.
Defendant said he primarily talked to the man who survived, later identified as Marquise.
       At the conclusion of the interview, Officer Serrano asked defendant if he wanted
to write a letter to the victim’s family about what happened. Defendant agreed, and said
he never meant to shoot him.
The cell phone photographs of a shotgun
       The shotgun used to shoot the victims was never found.
       The police examined Fradue’s cell phone and found five photographs of a
shotgun, with date-stamps of June 20, 2012. A firearms expert examined the photographs
and testified that weapon was consistent with a Remington 870 Wingmaster 12-gauge
pump-action shotgun, with “after-market conversions.” It had been altered to remove the
back end of the stock; it had a pistol grip and a “side saddle” attached to the side of the

                                              8.
weapon which contained live ammunition. The gun had to be “racked” or pumped to
chamber a live round. Once the round was fired, the shotgun could not be fired again
simply by pulling the trigger. The shotgun had to be racked again to chamber the next
live round, and then it could be fired.
       The expert testified the expended shell found at the murder scene appeared to be a
12-gauge shell, consistent with being ejected when a shotgun was racked. The weapon in
the cell phone photographs was capable of firing 12-gauge shotgun shells, which could
have contained either a slug or pellets.
Defendant’s statements about the shotgun
       Officer Serrano conducted another interview with defendant and showed him the
cell phone photographs of the shotgun. Defendant had never seen the pictures, but he
said the shotgun in the photographs was the firearm he used that night.
Lorenzo Leavy’s pretrial statement
       On June 29, 2012, Officer Serrano interviewed Lorenzo, defendant’s brother.
Lorenzo was 12 years old at the time, and he was not aware the interview was being
recorded. Serrano advised Lorenzo of the Miranda warnings, and Lorenzo agreed to
answer questions.
       Officer Serrano told Lorenzo that they had already talked to his brother
(defendant), who said that something happened to Lorenzo a few weeks earlier. Lorenzo
said a car drove up to him, someone pulled a gun, and he ran away.
       As for the shooting, Lorenzo said he wasn’t there when it happened, but defendant
told him about it. Defendant and Lorenzo spent the night of the shooting at Fradue’s
house. The next morning, defendant and Lorenzo left in Fradue’s car. During the drive,
defendant told Lorenzo that he was with Fradue the previous night. Defendant said
Fradue was driving and he was in the backseat.6 Defendant said they saw two Northside

       6 Marquise told the police that a female was driving and there were two men in the
car. At trial, Marquise testified that he thought the gunshot was fired from the backseat.

                                            9.
guys, and Fradue told him to get the gun. Defendant said the shotgun belonged to
Fradue. Defendant told Lorenzo that the two guys were “banging out North,” and
defendant argued with them. Defendant told Lorenzo that he decided to shoot them, he
tried to fire, but the shotgun was on safety. Defendant said he fired twice and shot
someone. Lorenzo knew that someone had been killed.
Lorenzo’s trial testimony
       Lorenzo was 14 years old when he testified at defendant’s trial. Lorenzo testified
about an incident that occurred several months before the murder, when he was walking
home from school with two girls. Someone tapped him on the shoulder. Lorenzo turned
around and saw two men with a gun, and two more men standing behind them. Lorenzo
immediately ran away. A car was not involved in this incident.
       Lorenzo testified that about three or four months later, he was walking down the
street when a car pulled in front of him. Two men with braids jumped out. They had a
gun and told Lorenzo not to run. Lorenzo ran away into an apartment complex.
       Lorenzo admitted that he and his brother were part of the Hoover Crips gang, and
they had been having problems with rival gang members who lived in their apartment
complex. Lorenzo testified he was with defendant when they had another encounter with
rival gang members at a convenience store.
       Lorenzo testified he and defendant stayed at Fradue’s house on June 24, 2012, and
they borrowed Fradue’s car the next morning. Lorenzo denied that he told the police that
defendant said he shot someone the previous night. When Lorenzo learned his interview
had been recorded, he claimed the police told him what to say. He also claimed the
recording was a “made-up video” that had been altered to make it sound like he said
certain things.
Expert testimony
       Officer Ron Flowers testified as the prosecution’s gang expert. In his opinion,
defendant was a member of the 107 Hoover Crips, based on defendant’s tattoos, prior

                                             10.
arrests, and association with other Hoover gang members. The 107 Hoover Crips was a
“stand-alone” gang.
       Officer Flowers believed Maurice and Marquise Graves were affiliated with the
Pleasant gang, which was part of the Northside gang. Flowers testified that the Pleasant
and Northside gangs were having problems with the Hoover gang at the time of the
murder.
                             SENTENCING PROCEEDINGS
       As explained above, defendant was 16 years old when he committed the crimes in
this case. He was tried as an adult and convicted of first degree murder with two special
circumstances. We now turn to the applicable legal principles relevant to defendant’s
sentence, and the trial court’s findings in this case.
Roper, Graham, Miller and Caballero
       There are a series of cases which limit the sentence which may be imposed on a
juvenile offender. The death penalty may not be imposed on juvenile offenders. (Roper
v. Simmons (2005) 543 U.S. 551, 578 (Roper).) A juvenile who commits a nonhomicide
offense may not be sentence to LWOP. (Graham v. Florida (2010) 560 U.S. 48, 74
(Graham).)
       In Miller, the United States Supreme Court held that a juvenile who commits a
homicide offense may not be automatically sentenced to an LWOP term. (Miller, supra,
132 S.Ct. at p. 2460.) Miller held that the sentencing authority must have individualized
discretion to impose a less severe sentence and, in exercising that discretion, must take
into account the following youth-related mitigating factors. (Id. at pp. 2468–2469.)

       “Mandatory life without parole for a juvenile precludes consideration of his
       chronological age and its hallmark features – among them, immaturity,
       impetuosity, and failure to appreciate risks and consequences. It prevents
       taking into account the family and home environment that surrounds him –
       and from which he cannot usually extricate himself – no matter how brutal
       or dysfunctional. It neglects the circumstances of the homicide offense,
       including the extent of his participation in the conduct and the way familial


                                              11.
       and peer pressures may have affected him. Indeed, it ignores that he might
       have been charged and convicted of a lesser offense if not for [the]
       incompetencies associated with youth – for example, his inability to deal
       with police officers or prosecutors (including on a plea agreement) or his
       incapacity to assist his own attorneys. [Citations.] And finally, this
       mandatory punishment disregards the possibility of rehabilitation even
       when the circumstances most suggest it.” (Miller, supra, 132 S.Ct. at
       p. 2468, italics added.)
       Shortly after the decision in Miller, the California Supreme Court held in People v.
Caballero (2012) 55 Cal.4th 262, 265, 268 (Caballero) that a juvenile defendant’s
sentence of 110 years to life for three counts of attempted murder was the “functional
equivalent” of an LWOP term, and violated Graham’s prohibition against LWOP
sentences for juvenile offenders convicted of nonhomicide offenses.
       Just before defendant was sentenced in this case, the California Supreme Court
held in People v.Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez), that a sentencing court has
discretion to sentence a juvenile convicted of first degree murder with special
circumstances to LWOP or 25 years to life, with no presumption in favor of life without
parole. Gutierrez held that Miller requires the court, “in exercising its sentencing
discretion, to consider the ‘distinctive attributes of youth’ and how those attributes
‘diminish the penological justifications for imposing the harshest sentences on juvenile
offenders’ before imposing life without parole on a juvenile offender. [Citation.]”
(Gutierrez, supra, 58 Cal.4th at p. 1361.)
       Gutierrez further held that in considering whether to impose an LWOP term, a
sentencing court must consider the five factors enumerated in Miller (as italicized above):
(1) the inherent impact of the juvenile’s age on his culpability; (2) the juvenile’s home
and family environment; (3) the circumstances of the homicide offense; (4) the juvenile’s
ability to deal with law enforcement officers and prosecutors as well as effectively assist
in his own defense; and (5) the possibility of rehabilitation. (Gutierrez, supra, 58 Cal.4th
at pp. 1389–1390.)



                                             12.
Section 3051
       Caballero urged 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 rehabilitation and maturity.”
(Cabellero, supra, 55 Cal.4th at p. 269, fn. 5.)
       In response to Miller, Graham, and Caballero, the California Legislature passed
Senate Bill No. 260, which became effective January 1, 2014, and enacted sections 3051,
3046, subdivision (c) and 4801, subdivision (c). The express purpose of the legislation
was to provide a parole eligibility mechanism in accordance with the decisions in these
cases. (Franklin, supra, 63 Cal.4th at p. 277; Stats. 2013, ch. 312, § 1; see Historical and
Statutory Notes, 51B pt. 2, West’s Ann. Pen. Code (2015 supp.) foll. § 3041, pp. 78–79.
       “At the heart of Senate Bill No. 260 was the addition of section 3051, which
requires the Board [of Parole Hearings] to conduct a ‘youth offender parole hearing’
during the 15th, 20th, or 25th year of a juvenile offender’s incarceration. (§ 3051,
subd. (b).) The date of the hearing depends on the offender’s ‘ “controlling offense,” ’
which is defined as ‘the offense or enhancement for which any sentencing court imposed
the longest term of imprisonment.’ (Id., subd. (a)(2)(B).) A juvenile offender whose
controlling offense carries a term of 25 years to life or greater is ‘eligible for release on
parole by the board during his or her 25th 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.’ (Id., subd. (b)(3).) The statute excludes several
categories of juvenile offenders from eligibility for a youth offender parole hearing:
those who are sentenced under the ‘Three Strikes’ law (§§ 667, subds. (b)–(i), 1170.12)
or Jessica’s Law (§ 667.61), those who are sentenced to life without parole, and those
who commit another crime ‘subsequent to attaining 23 years of age ... for which malice
aforethought is a necessary element of the crime or for which the individual is sentenced

                                              13.
to life in prison.’ (§ 3051, subd. (h); see Stats. 2015, ch. 471, § 1 [changing the age after
which malice aforethought crimes are disqualifying from 18 to 23].)” (Franklin, supra,
63 Cal.4th at pp. 277–278.)
       “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.)
Defendant’s sentencing statement
       On April 16, 2014, after defendant was convicted, defense counsel filed a
sentencing statement and acknowledged that defendant faced an LWOP term for his
conviction of first degree murder with special circumstances. Counsel argued a
mandatory LWOP term for a juvenile offender violated the Eighth Amendment, multiple
life terms would be the functional equivalent of an LWOP term, and consideration of the
Miller factors weighed in favor of a prison term which allowed for the possibility of
parole within defendant’s lifetime.
       In support of his motion, counsel attached defendant’s educational and
disciplinary records and argued:

       “[Defendant’s] lack of maturity, even for his age, is evidence from his poor
       attendance and frequent disturbances in class. This undeveloped sense of
       responsibility is exhibited by reckless and impulse behavior. [Defendant]
       has been disciplined for taking and hiding the teacher’s radio, refusing to
       turn the volume down while using the computer, making disruptive
       comments, and for fighting with others. His discipline records reflect his
       reckless and often impulsive behavior.



                                             14.
              “Additionally, [defendant] suffered from the environment in which
       he grew up and was unable to change his environment or his circumstances.
       [Defendant’s] parents passed away when he was a child. His parents did
       not provide for any support for him or his siblings in their absence and in
       turn [defendant] grew up without any parental guidance. His sister, 8 years
       his senior, took care of him as best she could, but even she was involved in
       the gang lifestyle. [Defendant] did have a great aunt that was noted in his
       school records from time to time, but due to her age and her blindness she
       was unable to care for him. As a result, most of his time was spent living
       on the streets of Fresno.

               “[Defendant] has displayed the ability to improve and excel during
       his middle school and high school career. [Defendant] went from failing all
       classes in his seventh grade spring semester to maintaining A’s and B’s
       during his ninth grade summer semester. His student transcript reflects his
       poor performance in academics, but also reflects his ability to change and to
       succeed. Although, he was enrolled in special education courses, at the age
       of fifteen his reading comprehension was that of a 7th or 8th grader. It
       appears that [defendant] could perform well in the structured environment
       of a classroom. His teachers noted his ability to follow along in class, his
       ability to work well with others, to follow directions, and to participate.
       They also noted his need for confidence, practice of the subject matter, and
       that often he was so embarrassed by his mistakes that he would give up.”
       Defense counsel concluded that defendant’s appreciation of the gravity of his
actions was “hindered by his lack of maturity, impulsivity and underdeveloped sense of
responsibility. [Defendant] grew up without his parents in a neighborhood fraught with
gang activity and his own sister who cared for him was involved in the gang lifestyle.
[Defendant] had no other relatives that could care for him and was therefore restricted to
the circumstances he found himself in. His good grades and positive comments from his
educators demonstrate his ability to change and to excel in a structured environment.”
Probation report
       Defendant told the probation officer that his mother was in prison for six to seven
years because she “ ‘cut a police [officer].’ ” Defendant lived with various family and
friends until his mother’s release. When his mother died, defendant lived with his 20-




                                            15.
year-old sister for a while. At the time of the offenses, defendant said he lived with
family friends and “ ‘it was just crazy.’ ”
       The probation report summarized the police reports about the murder, and stated
that Fradue reported the rental car was stolen to conceal that it was used in the murder.
The sentencing hearing
       On June 2, 2014, the court conducted the sentencing hearing and stated it was
inclined not to impose an LWOP term. Defense counsel repeated the arguments raised in
the sentencing statement and did not move to introduce additional evidence about
defendant.
       Defense counsel argued even if the court imposed multiple terms of 25 years to
life, it would still constitute a de facto life sentence that was unconstitutional under Miller
and Graham. Counsel asked the court to impose concurrent instead of consecutive
sentences.
       The court asked defense counsel about the potential applicability of section 3051
to defendant’s sentence. Counsel replied that section 3051 reflected the current state of
the law and provided for defendant to appear before a parole board in 25 years, but
argued that the constitutionality of the statute had not been resolved.
       The court stated it had reviewed Miller, Gutierrez, and Caballero, and considered
defendant’s sentencing statement. The court declined to sentence defendant to LWOP for
first degree murder with special circumstances.

       “[W]eighing the five factors set forth in Gutierrez and Miller, the Court
       believes that the exercise of its discretion when considering life without the
       possibility of parole for a first degree murder conviction of a juvenile, 16 or
       17 years old, and particularly in this case, that the factors weigh heavily in
       favor of imposing the term of 25 years to life ….”
       The court sentenced defendant to 25 years to life for count I, first degree murder; a
consecutive term of 25 years to life for the firearm enhancement; life with the possibility
of parole for count II, attempted premeditated murder; plus 25 years to life for the second


                                              16.
firearm enhancement, for an aggregate sentence of three consecutive terms of 25 years to
life plus life with the possibility of parole. The court declined defendant’s request to
impose concurrent terms because there were two separate shots fired at two separate
victims.
The court’s sentencing findings
       After the court imposed the sentence, it made extensive findings under Miller and
Gutierrez, and explained why it declined to impose an LWOP term, and instead
sentenced defendant to multiple terms of 25 years to life.
       First, the court noted defendant was 16 years at the time of the offenses. It
reviewed his academic record, which was attached to defendant’s sentencing statement,
and said that defendant’s disciplinary record at school demonstrated “an immaturity and a
failure to appreciate consequences.”
       Second, the court considered defendant’s family home environment. Defendant
told the probation officer that his mother was in prison for assaulting an officer, and his
upbringing was crazy. The sentencing statement mentioned that defendant lost his
mother and father when he was young, but it was “never made clear in anything that the
Court read or the evidence at trial approximately when that took place. But it is clear the
defendant did grow up for a large portion of his life without the benefit of a sustainable
family structure,” and “that he was taken from home to home, from family member to
family member during the time of his upbringing.”
       Third, the court looked at the circumstances of the homicide. While defendant
was “clearly” the shooter, the court believed that Fradue “had a great deal of influence on
what happened in this case” because defendant used her car and gun, and defendant and
his brother were with Fradue before and after the shooting. The court believed that,
based on the trial evidence, Fradue “was probably at the scene of the shooting and may
have been the driver of the vehicle while defendant was in the passenger seat,” and the
court believed “there was an exertion of pressure” on defendant to carry out the offense.

                                             17.
The court believed defendant used controlled substances, but dismissed defendant’s
statement to the probation officer, that he consumed 1.5 pints of Hennessy and four
Ecstasy pills on the day of the crime, and used cocaine and heroin on a daily basis. The
court found it difficult to believe that defendant was able to finance the use of such a
large amount of substances.
       Fourth, the court considered “evidence of incompetencies” and his inability to deal
with officers or assist counsel. The court said that defendant’s recorded interview
showed his immaturity and lack of sophistication dealing with law enforcement and
serious issues. There was no information about any inability to assist counsel.
       Finally, the court looked at the possibility of rehabilitation, and noted defendant
did not have any criminal history.
       The court concluded:

       “[C]onsideration of these five factors under Miller and Gutierrez point to a
       diminished and illogical justification for imposing the harshest sentence
       that a Court could impose on a juvenile offender, and in this instance, that
       would be life without the possibility of parole…. [A]fter the Court has
       considered all of those factors and for the very specific reasons stated, the
       Court selected in the exercise of its discretion … the 25-years-to-life
       sentence rather than life without the possibility of parole.”

                              APPELLATE CONTENTIONS
       In his opening brief on appeal, defendant argued his sentence must be reversed
because he was 16 years old at the time of the offenses, and the sentence of 75 years to
life (plus life for attempted murder) was the functional equivalent of an LWOP term.
Defendant argued such a term for a juvenile offender violated the Eighth Amendment and
was unconstitutional pursuant to Miller, because it did not provide for a meaningful
opportunity for parole.
       Defendant argued the court failed to adequately consider or discuss the “Miller
factors” when it sentenced him, such as the “hallmark features of youth,” his background



                                             18.
and upbringing, mental and emotional development, and possibility of rehabilitation.7
Defendant further argued the court never considered the possibility of imposing a
sentence less than 50 years to life for count I.
       Defendant acknowledged that section 3051 had been enacted to provide youthful
offenders with parole hearings after serving 25 years. Defendant asserted the procedures
established by section 3051 did not “cure” the alleged constitutional errors in his
sentence. “A sentence which puts off such considerations and transfers them to the
possibility of a parole board 25 years into the future is completely at odds” with the
Eighth Amendment.
       Defendant argued the matter must be remanded for the court to consider the Miller
factors and impose a sentence of less than 50 years to life for count I to conform to the
Eighth Amendment. Defendant acknowledged that several cases addressing these issues
were pending before the California Supreme Court.
                                        FRANKLIN
       While this case was pending on appeal, the California Supreme Court decided
People v. Franklin, supra, 63 Cal.4th 261, which has addressed and rejected the same
issues raised in this appeal.
       In Franklin, the defendant was convicted of first degree murder; he was 16 years
old when he committed the offense. His sentencing hearing occurred before Miller and
Caballero were decided, and the court was obligated by statute to impose two
consecutive terms of 25 years to life. On appeal, the defendant challenged the
constitutionality of his aggregate term of 50 years to life. (Franklin, supra, 63 Cal.4th at
p. 268.)




       7 The record completely undermines this assertion, given the court’s extensive
analysis of defendant’s specific circumstances under the Miller factors.


                                              19.
       Franklin explained that since Miller and Graham were decided, “courts
throughout the country have examined whether the high court’s restrictions on LWOP
sentences apply to lengthy sentences with a release date near or beyond a juvenile’s life
expectancy.” (Franklin, supra, 63 Cal.4th at p. 275.) Franklin noted that Caballero
reached the conclusion that a juvenile defendant’s sentence of 110 years to life “was the
‘functional equivalent’ of life without parole and thus violated Graham’s prohibition
against LWOP sentences for juvenile offenders convicted of nonhomicide crimes.
[Citations.] But we did not further elaborate what it means for a sentence to be the
‘functional equivalent’ of LWOP, and we left open how our holding should be applied in
the case of a juvenile homicide offender. [Citation.]” (Franklin, supra, at pp. 275–276.)

               “We now hold that just as Graham applies to sentences that are the
       ‘functional equivalent of a life without parole sentence’ [citation], so too
       does Miller apply to such functionally equivalent sentences. As we noted
       in Caballero, Miller ‘extended Graham’s reasoning’ to homicide offenses,
       observing that ‘ “none of what [Graham ] said about children – about their
       distinctive (and transitory) mental traits and environmental vulnerabilities –
       is crime-specific.” ’ [Citation.] Because sentences that are the functional
       equivalent of LWOP implicate Graham’s reasoning [citation], and because
       ‘ “Graham’s reasoning implicates any life-without-parole sentence imposed
       on a juvenile” ’ whether for a homicide or nonhomicide offense [citation], a
       sentence that is the functional equivalent of LWOP under Caballero is
       subject to the strictures of Miller just as it is subject to the rule of Graham.
       In short, a juvenile may not be sentenced to the functional equivalent of
       LWOP for a homicide offense without the protections outlined in Miller.”
       (Id. at p. 276, italics added.)
       Franklin further held that the enactment of section 3051 entitled a juvenile
defendant to a parole hearing in his 25th year in prison, and thus rendered moot “any
infirmity in [his] sentence under Miller.” (Franklin, supra, 63 Cal.4th at p. 276.)

       “[S]ection 3051 has superseded [the defendant’s] sentence so that
       notwithstanding his original term of 50 years to life, he is eligible for a
       ‘youth offender parole hearing’ during the 25th year of his sentence.
       Crucially, the Legislature’s recent enactment also requires the Board not
       just to consider but to ‘give great weight to the diminished culpability of


                                             20.
       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).) For those juvenile offenders
       eligible for youth offender parole hearings, the provisions of Senate Bill
       No. 260 are designed to ensure they will have a meaningful opportunity for
       release no more than 25 years into their incarceration.” (Id. at p. 277.)
       Franklin held that section 3051 did not “envision that the original sentences of
eligible youth offenders would be vacated and that new sentences would be imposed to
reflect parole eligibility during the 15th, 20th, or 25th year of incarceration.” (Franklin,
supra, 63 Cal.4th at p. 278.)

       “The continued operation of the original sentence is evident from the fact
       that an inmate remains bound by that sentence, with no eligibility for a
       youth offender parole hearing, if ‘subsequent to attaining 23 years of age’
       the inmate ‘commits an additional crime for which malice aforethought is a
       necessary element ... or for which the individual is sentenced to life in
       prison.’ (§ 3051, subd. (h); Stats. 2015, ch. 471.) But section 3051 has
       changed the manner in which the juvenile offender’s original sentence
       operates by capping the number of years that he or she may be imprisoned
       before becoming eligible for release on parole. The Legislature has
       effected this change by operation of law, with no additional resentencing
       procedure required. [Citation.]” (Id. at pp. 278–279.)
       Franklin thus concluded that defendant’s constitutional challenge to his sentence
was moot. (Franklin, supra, 63 Cal.4th at p. 280.)

               “In sum, the combined operation of section 3051, section 3046,
       subdivision (c), and section 4801 means that [the defendant] is now serving
       a life sentence that includes a meaningful opportunity for release during his
       25th year of incarceration. Such a sentence is neither LWOP nor its
       functional equivalent. Because [the defendant] is not serving an LWOP
       sentence or its functional equivalent, no Miller claim arises here. The
       Legislature’s enactment of Senate Bill No. 260 has rendered moot [the
       defendant’s] challenge to his original sentence under Miller.” (Id. at
       pp. 279–280.)8


       8 Franklin is consistent with Montgomery v. Louisiana (2016) 577 U.S. __ [136
S.Ct. 718, 736], which held: “A State may remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole, rather than by resentencing
them. [Citation.] Allowing those offenders to be considered for parole ensures that

                                             21.
Remand for further sentencing hearing
       While Franklin affirmed defendant’s sentence in light of section 3051, it held the
matter had to be remanded for further proceedings since his sentencing hearing was held
before Miller and Caballero were decided. Franklin explained it was not clear whether
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.)
       “Senate Bill No. 260 directs the administrative entity that will determine if and
when [a juvenile defendant] is released to ‘give great weight’ (§ 4801, subd. (c)) to the
salient characteristics of youth outlined in Miller, Graham, and Caballero.” (Franklin,
supra, 63 Cal.4th at p. 282.) “The Legislature has declared that ‘[t]he youth offender
parole hearing to consider release shall provide for a meaningful opportunity to obtain
release’ (§ 3051, subd. (e)) and that in order to provide such a meaningful opportunity,
the Board ‘shall give great weight to the diminished culpability of juveniles as compared
to adults, the hallmark features of youth, and any subsequent growth and increased
maturity’ (§ 4801, subd. (c)). These statutory provisions echo language in constitutional
decisions of the high court and this court. [Citations.] The core recognition underlying
this body of case law is that children are, as a class, ‘constitutionally different from
adults’ due to ‘distinctive attributes of youth’ that ‘diminish the penological justifications
for imposing the harshest sentences on juvenile offenders.’ [Citation.] 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. [Citation.] It is
because of these ‘marked and well understood’ differences between children and adults
[citation] that the law categorically prohibits the imposition of certain penalties, including


juveniles whose crimes reflected only transient immaturity – and who have since matured
– will not be forced to serve a disproportionate sentence in violation of the Eighth
Amendment.”


                                             22.
mandatory LWOP, on juvenile offenders. [Citation.]” (Franklin, supra, 63 Cal.4th at
p. 283.)

              “In directing the Board to ‘give great weight to the diminished
       culpability of juveniles as compared to adults, the hallmark features of
       youth, and any subsequent growth and increased maturity of the prisoner’
       (§ 4801, subd. (c)), the statutes also contemplate that information regarding
       the juvenile offender’s characteristics and circumstances at the time of the
       offense will be available at a youth offender parole hearing to facilitate the
       Board’s consideration. 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. [Citation.] 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. [Citation.]” (Id. at pp. 283–284, italics
       added.)
       Franklin ordered a limited remand “[i]n light of the changed legal landscape” after
the decisions in Miller and Caballero “so that the trial court may determine whether [the
defendant] was afforded sufficient opportunity to make such a record at sentencing. This
remand is necessarily limited; as section 3051 contemplates, [defendant’s] two
consecutive 25-years-to-life sentences remain valid, even though the statute has made
him eligible for parole during his 25th year of incarceration.” (Franklin, supra, 63
Cal.4th at p. 269, italics added.)
       Franklin explained that if the trial court determined that 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



                                            23.
California Rules of Court, and subject to the rules of evidence. [The defendant] may
place on the record any documents, evaluations, or testimony (subject to cross-
examination) that may be relevant at his eventual youth offender parole hearing, and the
prosecution likewise may put on the record any evidence that demonstrates the juvenile
offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-
related factors. 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 pp. 284, italics added.)
                                         DISCUSSION
       In light of Franklin, this court asked the parties for briefing on the impact of the
decision on the issues raised in this appeal. Defendant submitted a letter brief and argued
that Franklin was wrongly decided, his sentence still violated Miller and the Eighth
Amendment, and maintained his right to the benefit of any subsequent decisions which
were contrary to Franklin.
       We decline defendant’s request to find Franklin was wrongly decided. We agree
with and, indeed, are required to follow the holding in Franklin. (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant’s sentence of 75 years to life,
plus life with parole, does not violate the Eighth Amendment given section 3051’s
provision for a parole hearing in his 25th year of incarceration. (Franklin, supra, 63
Cal.4th at pp. 278–279.) We note defendant has preserved any issues that might arise
should Franklin be reversed or overruled.
       Also in his post-Franklin letter brief, defendant asserts the sentencing court in this
case “gave little more than lip service to the now settled notion” that a court “may not

                                             24.
sentence a youthful offender to a term of imprisonment which does not provide for a
meaningful opportunity for parole without consideration of the ‘Miller factors.’ ”
Defendant raised a similar issue in his pre-Franklin opening brief, when he argued the
court failed to adequately consider or discuss the Miller factors when it sentenced him,
such as the “hallmark features of youth,” his background and upbringing, mental and
emotional development, and possibility of rehabilitation.
       These assertions are baseless and completely refuted by the record. As set forth
above, the sentencing court gave much more than “lip service” to its constitutional duty
in this case. It made lengthy findings as to each of the five Miller factors, and discussed
defendant’s difficult family life, substance abuse, and immaturity. The court explained
the reasons why it declined to impose an LWOP term, it was well aware of section
3051’s application to defendant’s case, and sentenced defendant to multiple terms of 25
years to life.
       Which leads us to defendant’s alternate argument, that he should receive the same
limited remand provided in Franklin to give him a sufficient opportunity “to make a
record of information relevant to his eventual youth offender parole hearing, and to
receive submissions and, if appropriate, testimony” pursuant to procedures set forth in the
California Rules of Court and subject to the rules of evidence.
       The People assert a remand is not necessary in this case. The People correctly
note that such a remand was necessary in Franklin because that defendant was sentenced
before Miller and Caballero were decided. In contrast, the relevant cases discussed
above had been decided when defendant was convicted in this case. Indeed, defense
counsel relied on Miller and Gutierrez when he filed his sentencing statement and argued
that defendant should not be sentenced to an LWOP term based on the Miller factors.
       We find the sentencing court properly exercised its discretion in this case. The
court reviewed Miller, Gutierrez, and Caballero, defendant’s sentencing statement, and
the provisions of section 3051. It made extensive findings based on the five factors set

                                            25.
forth in Miller and Gutierrez, and explained why it was going to exercise its discretion to
impose consecutive terms of 25 years to life instead of an LWOP term. As in Franklin,
the court did not abuse its discretion, defendant need not be resentenced, and his
aggregate term is constitutional.
       Out of an abundance of caution, however, we remand the matter to the sentencing
court for the limited purpose of determining whether defendant “was afforded sufficient
opportunity to make a record of information relevant to his eventual youth offender
parole hearing.” (Franklin, supra, 63 Cal.4th at p. 284.) While defense counsel was
obviously aware of the relevant authorities, his sentencing statement addressed the
court’s exercise of discretion to impose the sentence in the first instance, and may not
have considered additional factors that might be relevant to defendant’s eventual parole
hearing, as discussed in Franklin. Defense counsel was a vigorous advocate for
defendant, and the documents submitted with his sentencing statement may have been the
only available evidence relevant to the Miller factors.
       Nevertheless, given the holding in Franklin, and the factors which the Board must
consider at the parole hearing that will be held many years hence in the 25th year of his
incarceration, we will order a limited remand for both 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 .…” (Franklin, supra, 63
Cal.4th at p. 284.)
                                       DISPOSITION
       The matter is remanded for the limited purpose of affording both parties the
opportunity to make an accurate record of defendant’s characteristics and circumstances
at the time of the offense, as set forth in Franklin.



                                              26.
       On remand, the court shall correct the abstract of judgment as stated in the
reporter’s transcript of the sentencing hearing, that defendant was sentenced to 25 years
to life for count I; a consecutive term of 25 years to life for the section 12022.53 firearm
enhancement; life with the possibility of parole for count II, plus 25 years to life for the
second section 12022.53 enhancement, for an aggregate term of 75 years to life plus life
with parole. The trial court shall forward to all appropriate parties a certified copy of an
amended abstract of judgment.
       In all other respects, the judgment is affirmed.



                                                                  _____________________
                                                                  POOCHIGIAN, J.
WE CONCUR:


_______________________
LEVY, Acting P.J.


_______________________
PEÑA, J.




                                             27.
