People v. Phung

Filed 7/31/18; On rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G051876

v. (Super. Ct. No. 11WF0963)

TOM PHUNG, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, James A.
Stotler, Judge. Reversed and remanded.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr., Randall D. Einhorn and Anthony Da Silva, Deputy Attorneys General,
for Plaintiff and Respondent.
 Defendant Tom Phung was 17 years old when he and fellow Tiny Rascal
Gang (TRG) members, riding in about five cars, chased a fleeing vehicle containing eight
rival gang members. A TRG member two cars ahead shot and killed one rival and
seriously wounded a second. A jury convicted defendant, as an aider and abettor, of the
1
lesser included crime of second degree murder (Pen. Code, § 187, subd. (a); count 1),
attempted murder (§§ 664, subd. (a), 187, subd. (a); count 2), shooting at an occupied
motor vehicle (§ 246; count 3), and street terrorism (§ 186.22, subd. (a); count 4). With
respect to the first three crimes, the jury found true the allegations that defendant
committed them for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and
vicariously discharged a firearm causing great bodily injury and death (former
§ 12022.53, subds. (d), (e)(1)).
The court sentenced defendant to an aggregate state prison term of 40 years
to life, consisting of a 15-year-to-life term for second degree murder and a consecutive
25-year-to-life term for vicariously using a firearm in that crime; concurrently with count
1, a five-year term for attempted murder and a 25-year-to-life enhancement for
vicariously using a firearm in that crime; and, also concurrently with count 1, a three-year
term for shooting at an occupied vehicle and a 25-year-to-life enhancement for
vicariously using a firearm in that crime. The court dismissed for sentencing purposes
the gang enhancement to counts 1, 2, and 3. It imposed and stayed execution of sentence
on the street terrorism conviction pursuant to section 654. Judgment was entered in April
2015. Defendant appealed.
While that appeal was pending, the electorate passed Proposition 57, the
Public Safety and Rehabilitation Act of 2016, which went into effect in November 2016.
(People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).) Proposition 57,
among other things, prohibits the direct filing of charges in criminal court against a

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

2
minor. (Welf. & Inst. Code, § 707, subd. (a).) Charges must be filed in juvenile court,
and the district attorney must move the court for a transfer order to charge a minor as an
adult in criminal court. (Lara, at p. 303.)
In March 2017, we issued an opinion affirming the judgment. (People v.
Phung (2017) 9 Cal.App.5th 866, vacated by order on May 17, 2018. In April 2017,
defendant petitioned for review before the California Supreme Court. While that petition
was pending, another panel of this court issued People v. Vela (2017) 11 Cal.App.5th 68,
review granted July 12, 2017, S242298 (Vela), which held that Proposition 57 operates
2
retroactively under the rule announced in In re Estrada (1965) 63 Cal.2d 740 (Estrada).
Defendant’s counsel, however, was unaware of the filing of the Vela opinion, and did not
raise the issue before the California Supreme Court. That court denied review, following
which we issued the remittitur.
Approximately one week later, defendant filed a motion to recall the
remittitur on the ground that his counsel had provided ineffective assistance of counsel in
failing to raise the retroactivity of Proposition 57 to his own case. (See People v.
Valenzuela (1985) 175 Cal.App.3d 381, 394, overruled on other grounds by People v.
Flood (1998) 18 Cal.4th 470, 490, fn. 12 [“The motion to recall the remittitur is granted
on the sole ground that defendant . . . was deprived of his constitutional right to the
effective assistance of appellate counsel.”].) Defendant’s counsel admitted the error. We
granted the motion, recalled the remittitur, and solicited supplemental briefing.
In October 2017, defendant requested another round of supplemental
briefing, this time on the retroactivity of Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB
620), which amended the law so that courts now have discretion to strike firearm

2
The Vela opinion was later partially published after transfer from the
Supreme Court. (People v. Vela (2018) 21 Cal.App.5th 1099.)

3
 3
enhancements, a discretion the court did not have when initially sentencing defendant.
We granted the request and solicited further briefing.
In February 2018, the California Supreme Court issued Lara, supra, 4
Cal.5th 299, in which it adopted the rationale and holding of Vela, supra, 11 Cal.App.5th
68, review granted July 12, 2018, S242298. We subsequently vacated our prior opinion
by order on May 17, 2018.
In section I of the “DISCUSSION” section of this opinion, we repeat the
analysis from our original opinion affirming the judgment. In section II of the
“DISCUSSION” section, we conclude that both Proposition 57 and SB 620 retroactively
apply to defendant. Accordingly, we reverse and remand to hold a transfer hearing and to
resentence defendant, as explained in greater detail post.

FACTS

The Shooting
On March 20, 2011, about 20 people were partying at Andrew Tran’s
home, including defendant (a TRG member) and Leesa Huynh. The people talked about
“getting back at” rival gang Power of Vietnamese (POV) because POV had thrown a
brick through a window of a TRG member’s house, injuring the member’s “little sister.”
Around 11:00 p.m., Huynh left the party in a car driven by Tran. There
were three other passengers in Tran’s car — Benjamin Nguyen, Jonathan Tieu, and
Skyler Avila. Nguyen gave Tran a gun, which Tran hid in the dashboard behind the car’s
radio. Nguyen was a Hellside gang member. Tieu was a TRG member. Tran and Avila
had ties to both the TRG and Hellside gangs.

3
(Stats. 2017, ch. 682, §§ 1, 2, eff. Jan. 1, 2018.)

4
 Tran’s group stopped at a restaurant, where they were joined by three or
four other cars of people from the party, including Hellside gang members. From there,
they drove to the parking lot of a pool hall where POV members were known to hang out
at times. Tran’s car arrived at the pool hall first. Eventually, there might have been a
total of six or seven cars there.
Tran, Tieu, and Nguyen got out of the car and shouted at people in the pool
hall, yelling, “Tiny Rascal Gang,” “T.R.G., what’s up?”, and “Fuck VT.” Huynh thought
the men were shouting at people in TRG’s rival gangs, i.e., POV, Asian Family (AF), and
Viets Together (VT).
Tran and the others got back into the car. Nguyen sat in the front passenger
seat. Tran repositioned his car in the parking lot. His car and several other vehicles
formed a “barricade” that served as a “check point” for other vehicles trying to exit the
parking lot.
One car drove by the barricade. Someone in Tran’s car said, “That’s not
them.” Then an SUV (sport-utility vehicle) drove by. Tran said, “That’s them,” and
drove after the SUV onto Westminster Boulevard. Together with Tran’s car, at least two
other cars chased the SUV. When the SUV was in the middle lane, Tran’s car switched
to the left lane and was a little bit behind the SUV. Nguyen told Tran to accelerate.
Tran’s car pulled up to the driver’s side of the SUV. Nguyen shouted at the
people in the SUV through the car’s open window, asking what gang they were from.
Nguyen had the gun Huynh had seen earlier. Inside the SUV, Scottie Bui (a POV gang
member) said, “It’s Puffy [Tran] and C.J. [Tien Phung].”
Huynh heard five gunshots emanate from the passenger side of Tran’s car.
The SUV’s driver told everyone to duck down. Two guys were “hit,”
including Bui. The SUV’s occupants drove an unresponsive Bui to the hospital, carried
him “over there,” and left. Bui died from a gunshot wound to the head. Another male
suffered great bodily injury from a shot to his neck.

5
 After the shooting, the Tran group drove to a house in the “neighborhood,”
and then to get doughnuts, along with some other people who had been with them at the
party and the pool hall.
At trial, a TRG member (who pleaded guilty to attempted murder and street
terrorism based on the above underlying crimes) testified that TRG members are
expected to “back up” each other in fights and that a member would be “checked,” i.e.,
beaten up, if he failed to be a back up. He identified defendant in court as a fellow TRG
member and testified that defendant’s brother Tien Phung was the leader of TRG at the
time of the shooting.

Defendant’s Police Interview
Almost three months later, on June 16, 2011, a police officer interviewed
defendant. A video recording of the interview was played for the jury and a transcript
was distributed. In the interview, defendant gave the officer the following account of his
relationship with TRG and the events of the night of March 20, 2011 and the early
morning hours of March 21, 2011.
Defendant was 17 years old and had been on probation since he was 13 or
14 years old. Defendant did not associate with TRG; he had “stopped hanging out with
them since [his] last incident . . . . [He] helped the other detective, [he] went to school,
[he] got [his] laser [tattoo] removed . . . .” He had already had 14 painful laser treatments
to remove a TRG tattoo from his back.
Defendant was at the party the night of the shooting, but left to go to his
then girlfriend’s house because her mother was away from the home. He paid Cynthia to
4
drive him to the girlfriend’s house. He was there until 1:00 or 2:00 a.m. Defendant
phoned his brother to come pick him up, but his brother came and did not see him.

4
The gang expert identified Cynthia as Cynthia Sipaseuth.

6
Defendant talked on the phone to a TRG member who told him there were “VT’s at the
pool hall” and that defendant should come down there. Around 2:00 a.m., Cynthia and
Anthony Le picked defendant up.
With defendant in the backseat, they went to a McDonald’s restaurant and
then to the pool hall after learning that VT, POV, and AF members were there.
Defendant anticipated his group would “jump” (fight) the rival gang members. He went
there to back up TRG. He knew his help was not needed because the rivals’ single car
was out-numbered by defendant’s fellow gang members’ five cars. But he would have
jumped in to help if needed.
His brother “came out of nowhere,” stopped the car, and asked “what the
hell is going on.” There were a lot of cars and confusion; people passing by said that a
Lexus SUV was the enemy car. Tran’s car was “right behind it.” Defendant heard
shooting. Three cars were behind him, including his brother’s car. They then went to the
house of a Hellside gang member, where Hellside members said they had shot and
missed. “And they were yelling and saying that why you miss and just make me feel
terrible and sat there, you know, everybody just left, back doing their own thing and I
went with my brother.”
Defendant had started “kicking it” with TRG in 2008. He was “the good
one” in his family, the only one with “a high school diploma.” His older brother, Tien
Phung, did not want him to “screw up” his life, so Tien Phung only let him associate with
the gang. Defendant’s girlfriend let him “hang out” with TRG, but would not let him join
it. As a result of defendant’s association with the gang, he would back them up because
he would expect the same from them. Hellside had the “straps,” i.e., guns. TRG did not
“hook[] up” with Hellside, but the two gangs had the same enemies.

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Expert Testimony
The People’s gang expert described Asian street gang culture and behavior
in general, and TRG in particular. The expert explained that Asian gangs are very mobile
and do not have a neighborhood, but instead hang out at certain places like pool halls and
restaurants. They are secretive about their gang affiliation and do not openly claim their
gang, although they do get tattoos and dress in a gang-identifiable way. If a gang is
victimized by a rival gang, they lose respect and have to use equal or greater violence
against that rival.
The expert opined that TRG is a criminal street gang in Orange County and
other places, and that defendant and his brother Tien were active members of TRG on the
date of the shooting. TRG’s enemies are VT, POV, and AF. TRG gets along with
Hellside and True (or Tiny) Oriental Posse. Most TRG members are between 15 and 21
years old. TRG’s primary activities include murder, assault with a deadly weapon, illegal
possession of firearms, and narcotic sales.

DISCUSSION
I
The Original Opinion

Defendant’s Eighth Amendment Challenge to his Sentence Lacks Merit
Defendant contends that the “statutorily mandated imposition” on him of an
“enhanced 40-year-to-life prison term for second degree murder as a passive aider-
abettor, under a ‘natural and probable consequences’ theory of criminal liability, based on
disturbing the peace,” which includes a 25-year-to-life vicarious gun discharge
enhancement, “with no statutory discretion allowed to the trial court to consider [his] age
or personal circumstances or passive and nonviolent criminal behavior in mitigation of
the punishment, constituted excessive punishment and violated, as applied to him, [his]

8
constitutional rights under the Eighth and Fourteenth Amendments and article I, section
17, of the California Constitution.” He concludes “automatic reversal of the enhanced
sentences imposed on Counts 1 through 3 is warranted.” He requests this court to strike
his section 12022.53, subdivisions (d) and (e)(1) gun enhancements and to reduce his
sentence to 15 years to life.

1. The sentencing hearing
At the sentencing hearing (which took place when defendant was 21 years
old), defense counsel argued the court’s tentative sentence of 40 years to life appeared to
be “grossly disproportionate to the conduct,” in light of defendant’s “conduct” and
“background.” Defense counsel argued: “[T]he home life that this man had was terrible.
His mother [isn’t] in the situation[; his] older brother is in the gang. [Defendant] was
doing very well. Probation interviewed the people at the group home that he was living
at simply because mother couldn’t take care of anybody, and they were very, very
surprised. He was doing so well. . . . [H]e was having tattoos removed to try and get
away . . . from the problem of gangs. But when you have nowhere to live and you have
brothers, your friends, older brothers and their friends that are gang members, it makes it
very, very difficult. [¶] . . . [T]his young man found himself in a very difficult position. I
think the evidence was pretty clear that he did not know about a gun, that . . . he wasn’t
present when the people came to the party and they talked about some sort of revenge.
He had already left. He was at [his] ex-girlfriend’s house, and it was the brother coming
back by to pick him up because he was going to stay with the brother. And he gets in the
backseat of the car, not his brother’s car but someone else[‘s], and they’re going over to
where this confrontation may[]be. [¶] The [interrogating] officer got what he
wanted . . . him to say, ‘[W]ell, I’d help out if there was a fight.’ [¶] And those words
are what got him a second degree murder conviction.”

9
 The prosecutor argued that this event was “based on a bunch of people who
didn’t really do anything, and yet we have a dead body and another young man shot in
the neck.” Responsibility “is shared when a group of people get together and make an
event more likely to occur . . . .” The size of the group and “cloud of anonymity”
increase the chances of a gang succeeding without individual detection.
The probation report (which the court had considered) gave the following
information about defendant’s personal and family circumstances. His probation officer
first began supervising him when he was 14 years old. At that time, his father had left the
family several years earlier and his oldest brother was in prison. His mother, who “could
not maintain a home,” was mentally unstable and could not work. She depended on
CalWORKS (California Work Opportunity and Responsibility to Kids) to support the
family. After defendant and his brother Tien “became too much for their mother to
handle,” she gave up her Wraparound apartment and disappeared. Defendant was placed
in a group home where he “did extremely well.” He had worked “several internships”
and “was reported to be a hard worker.” He graduated from high school and had a job
interview scheduled the week of his arrest. The probation officer stated that “he seemed
to have turned his life around and had a bright future ahead of him.” In a jail interview,
defendant said he had spent a year in a group home trying to get out of the gang lifestyle
and that his probation officer had told him that if he got his tattoos removed, paid
restitution, graduated from high school, and found a job, his probation period would end
when he turned 18 years old. Defendant was the first person in his family to obtain a
high school diploma. The only work experience he had was as an intern in the Irvine
Unified School District’s regional occupational program, through which he had done
stock work and customer service at a Smart and Final store, and had walked dogs and
done maintenance work at the Pet Poundery. Defendant’s oldest brother was homeless
and his two other brothers were incarcerated.

10
 The trial court found a 40-year-to-life term was not a life without
possibility of parole sentence nor was it a “de facto” life sentence (in light of defendant’s
life expectancy of 76 years, as well as the statutory “juvenile parole hearing”). The court
believed it had the discretion to impose a lesser sentence. The court stated it had
“considered the defendant’s youth, the attend[ant] circumstances here, the nature of the
crime, [and] the juvenile’s lesser culpability in this case because he’s an aider and abettor
as opposed to a perpetrator.” The court further stated that it had considered the factors
outlined in Miller v. Alabama (2012) 567 U.S. 460, 489 (Miller) regarding a “juvenile’s
lesser culpability[,] seemingly a concept that includes more than simply age,” “a
juvenile’s greater capacity for change,” and “a juvenile offender who did not kill or
intend to kill [having] a twice diminished moral culpability” “when compared with an
adult murderer.” The court noted defendant’s record of multiple prior juvenile
adjudications starting when he was 13 years old, including weapons possessions, battery,
felony burglary, vandalism, possession of stolen property, and a gang-related assault with
a deadly weapon. The court gave defendant “the benefit of the doubt” that he was trying
to remove his gang tattoos “because he was trying to get out of the gang lifestyle.” The
court looked “at the big picture,” in which a group of young people had hunted down
another gang and all of them had arrived “for purposes of inflicting violence, even though
some of them [were] only there for back up,” in what was basically “an ambush [when]
they called the [rivals] out of the pool hall.” The court sentenced defendant to a principal
aggregate term of 40 years to life for second degree murder with a vicarious gun
enhancement.

2. Applicable law
The Eighth Amendment’s ban on “cruel and unusual punishment” prohibits
(1) the death penalty for any juvenile offense (See Roper v. Simmons (2005) 543 U.S.
551, 578); (2) life without parole (LWOP) for juvenile nonhomicide offenses (Graham v.

11
Florida (2010) 560 U.S. 48, 82 (Graham)); and (3) mandatory LWOP for juvenile
homicide offenses (Miller, supra, 567 U.S. at p. 489). Furthermore, “sentencing a
juvenile offender for a nonhomicide offense to a term of years with a parole eligibility
date that falls outside the juvenile offender’s natural life expectancy” violates the Eighth
Amendment because such a sentence is the “‘functional equivalent’” of LWOP. (People
v. Caballero (2012) 55 Cal.4th 262, 265, 267-268 (Caballero) [concerning a 110-year-to-
life sentence for a 16-year-old nonhomicide offender].) Similarly, the Eighth
Amendment protects a juvenile homicide offender from a mandatory indeterminate
sentence that is equivalent to LWOP. (People v. Franklin (2016) 63 Cal.4th 261, 276
(Franklin).) And, although juvenile homicide offenders are shielded only from
mandatory LWOP (actual or de facto), the Unite States Supreme Court in Miller stated
that the instances where a juvenile homicide offender could constitutionally be sentenced
to LWOP would be uncommon, because rarely would a juvenile offender’s “‘crime
reflect[] irreparable corruption.’” (Miller, at pp. 479-480.)5
As to all the above LWOP restrictions, a “State need not guarantee the
[juvenile] offender eventual release, but if it imposes a sentence of life it must provide
him or her with some realistic opportunity to obtain release before the end of that term.”
(Graham, supra, 560 U.S. at p. 82.) More specifically, the State must provide “‘some
meaningful opportunity to obtain release based on demonstrated maturity and

5
Miller did not decide the appellants’ “alternative argument that the Eighth
Amendment requires a categorical bar on [LWOP] for juveniles, or at least for those 14
and younger.” (Miller, supra, 567 U.S. at p. 479.) Nonetheless, the high court stated,
“[W]e think appropriate occasions for sentencing juveniles to this harshest possible
penalty will be uncommon. That is especially so because of the great difficulty we noted
in Roper and Graham of distinguishing at this early age between ‘the juvenile offender
whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.’ [Citations.] Although we do not foreclose a
sentencer’s ability to make that judgment in homicide cases, we require it to take into
account how children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” (Ibid., fn. omitted.)

12
rehabilitation.’” (Miller, supra, 567 U.S. at p. 479; see Caballero, supra, 55 Cal.4th at
pp. 268-269.)
The rationale for this special treatment of juvenile offenders is that
“children are constitutionally different from adults for purposes of sentencing” in at least
three ways. (Miller, supra, 567 U.S. at p. 471.) “First, 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].’” (Ibid.)
In Caballero, the California Supreme Court “urge[d] the Legislature to
enact legislation establishing a parole eligibility mechanism that provides a defendant
serving a de facto [LWOP sentence for juvenile] nonhomicide crimes . . . with the
opportunity to obtain release on a showing of rehabilitation and maturity.” (Caballero,
supra, 55 Cal.4th at p. 269, fn. 5.) In response, the California Legislature enacted Senate
Bill No. 260 (2013-2014 Reg. Sess.) sections 1 and 4, which added section 3051 to and
amended section 4801 to the Penal Code. Section 1 of Senate Bill No. 260 states in part:
“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 [Caballero, Graham, and
Miller]. . . . It is the intent of the Legislature to create a process by which growth and
maturity of youthful offenders can be assessed and a meaningful opportunity for release
established.” (See Stats. 2013, ch. 312, § 1.)

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 Section 3051, subdivision (a)(1) provides, “A youth offender parole hearing
is a hearing by the Board of Parole Hearings for the purpose of reviewing the parole
suitability of any prisoner who was under 23 years of age at the time of his or her
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controlling offense.” The prisoner’s “‘controlling offense’” is “the offense or
enhancement for which any sentencing court imposed the longest term of imprisonment.”
(§ 3051, subd. (a)(2)(B).) If the prisoner is serving a term of 25 years to life for a
controlling offense, he or she 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).) A prisoner serving a life term of less than 25 years to life
for a controlling offense is eligible for release after a youth offender parole hearing
during the 20th year of incarceration, unless previously statutorily released or entitled to
earlier parole consideration. (Id., subd. (b)(2).) A prisoner serving a determinate
sentence for a controlling offense is eligible for release after a youth offender parole
hearing during the 15th year of incarceration, unless previously statutorily released. (Id.,
subd. (b)(1).) In all cases, the “youth offender parole hearing to consider release shall
provide for a meaningful opportunity to obtain release.” (Id., subd. (e).) The statute does
not apply “to three strikes sentences, one strike sentences, or LWOP sentences, or to
those who commit certain additional offenses after reaching the age of [23].” (People v.
Scott (2016) 3 Cal.App.5th 1265, 1278 (Scott); see § 3051, subd. (h).)
Section 4801, subdivision (c) provides, “When a prisoner committed his or
her controlling offense . . . prior to attaining 23 years of age, the board, in reviewing a
prisoner’s suitability for parole . . . , 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 of the prisoner in accordance with relevant case law.”
6
Prior to a 2015 amendment, sections 3051 and 4801 applied to inmates who
were under 18 years of age at the time of the offense. (Stats. 2015, ch. 471.)

14
 Sections 3051 and the amended section 4801 became effective on January
1, 2014, approximately 15 months before defendant was sentenced on April 3, 2015.
While this appeal was pending, the California Supreme Court decided
Franklin, supra, 63 Cal.4th 261. In Franklin, a jury convicted the juvenile offender “of
first degree murder and found true a personal firearm-discharge enhancement. The trial
court was obligated by statute to impose two consecutive 25-year-to-life sentences, so
[his] total sentence was life in state prison with the possibility of parole after 50 years.”
(Id. at p. 268.) Our Supreme Court held that “sections 3051 and 4801 — recently enacted
by the Legislature to bring juvenile sentencing in conformity with Miller, Graham, and
7
Caballero — moot[ed the defendant’s] constitutional claim.” (Franklin, at p. 268.)
Consequently, Franklin did “not decide whether a life sentence with parole eligibility
after 50 years of incarceration is the functional equivalent of an LWOP sentence and, if
so, whether it [was] unconstitutional in” that case. (Ibid.)

3. Under Franklin, defendant’s challenge to his sentence lacks merit
After we granted defendant’s motion to submit supplemental briefing on
Franklin’s effects (if any) on this case, both parties submitted supplemental briefs.
Defendant continues to request this court to reduce his sentence to 15 years to life,
contending that, even in Franklin’s aftermath, his minimum term of 25 years to life,
“when viewed in light of the particular circumstances of his life and his crime, remains
excessive punishment prohibited by the Eighth Amendment and the state constitution.”
He bases his contention on two alternative assertions. He first asserts that Franklin is not
“stare decisis” as to his argument that Miller’s reasoning “should extend logically to a
harsh non-LWOP indeterminate life sentence.” Alternatively, he asserts the Supremacy
Clause requires this court to disregard Franklin because Franklin allegedly contravenes
7
The Franklin defendant was sentenced before sections 3051 and the
amended 4081 became effective.

15
Miller by failing to require a sentencing court to factor in a juvenile’s individualized
factors at the time of sentencing.
As to defendant’s “stare decisis” contention, he argues that Franklin did not
decide the exact issue presented here, i.e., whether a “severe non-LWOP indeterminate
life sentence[ is] subject to the sentence-mitigating considerations of Miller by logical
extension.” He notes that in Franklin, the defendant argued his 50-year-to-life term was
the functional equivalent of an LWOP sentence (Franklin, supra, 63 Cal.4th at p. 273),
whereas, here, defendant asserts his 40-year-to-life term is severe, but “not quite the
functional equivalent of LWOP.” This distinction has no bearing, however, on whether
Franklin constitutes controlling, or persuasive, precedent for the case at hand. This is
because Franklin never reached the defendant’s contention that his 50-year-to-life term
was effectively an LWOP sentence. Rather, Franklin held the issue was moot because
sections 3051 and 4801 have “superseded the statutorily mandated sentences of” most
juvenile inmates by providing them “with a parole hearing during or before their 25th
year of incarceration.” (Franklin, at p. 278.) Like the defendant in Franklin, defendant
here “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 [he] is not serving an LWOP sentence or its functional equivalent,
8
no Miller claim arises here.” (Id. at pp. 279-280.)

8
Defendant argues, “Although Graham and Miller specifically address
LWOP situations, their open-ended language about the ‘most serious penalties,’ ‘harshest
sentences,’ or ‘most severe punishments’ can be read reasonably to extend logically
beyond LWOP and death-penalty cases to other harsh or severe indeterminate-life
sentences imposed mandatorily on juveniles like” him. We note, first, that defendant
does not dispute the Attorney General’s statement that “no court has held that a sentence
of 40 years to life for a juvenile offender is cruel and unusual.”
Defendant nevertheless argues that his effective term of 25 years to life
under section 3051 is excessive, or grossly disproportionate, punishment “when the
particular circumstances of his life and his crime are viewed through the youth-based
sentence-mitigating lens of Miller.” He stresses that, unlike the defendant in Franklin, he

16
 Alternatively, defendant contends Franklin “is directly contrary to the
holding of Miller that a sentencing judge must impose an ‘individualized’ sentence for a
juvenile facing ‘the most serious penalties,’ and must yield to that holding by operation
of the Supremacy Clause.” He argues Miller requires the sentencing judge (as opposed to
a parole board 25 years later) “to tailor the juvenile’s sentence — i.e., to confect an
‘individualized sentence’” by factoring in “the particular circumstances of the juvenile’s
life and crime, in light of the youth-based mitigation factors of Miller.” In his view, a
sentencing court must “consider a particular juvenile offender’s ‘youth’ and ‘special’ or

“was not the actual shooter/killer, but someone sitting in the back seat of a vehicle that
was not involved in the shooting but was removed from where the shooting took place.”
But, although Franklin was indeed the actual shooter/killer (Franklin, supra, 63 Cal.4th at
p. 270), the provocation for the shooting included that members of the victim’s gang had
shot into Franklin’s “home while his family was inside,” “shot the windows out of [his]
mother’s car and slashed her tires,” came to Franklin’s classroom and displayed a gun as
a threat (id. at p. 269), and attacked his 13-year-old brother (ibid.). Franklin’s older
brother had loaned him a gun for protection the morning of the murder. (Ibid.) “Franklin
testified at trial that he was angry and afraid for his family. He did not know what the
[victim’s] gang was going to do next and wanted to confront them. According to
Franklin, he did not plan to shoot anyone but knew there was a ‘possibility that [he]
might.’” (Id. at p. 270.) Thus, 16-year-old Franklin acted impulsively, was subject to
negative influences and pressures from his family and peers, and was unable to extricate
himself from a “horrific, crime-producing setting[].” (Miller, supra, 567 U.S. at p. 471.)
In terms of factual distinctions between Franklin and the case at hand,
although defendant here was not the actual shooter, he knew that rival gang members
were at the pool hall and he went there to back up TRG and to jump in if needed. When
he thought that the actual shooter had missed the target, he felt terrible. At the time of the
shooting, defendant was 17 years and seven months old, just five months shy of adult
status. Miller’s youth-based sentence-mitigating factors do not entitle defendant to a
parole hearing prior to the 25th year of his sentence (for example, during the 15th year of
his sentence, if his mandatory 25-to-year-life gun enhancement under section 12022.53,
subdivisions (d) and (e)(1) [regarding gang members], were held to violate the Eighth
Amendment). Defendant’s appellate counsel acknowledges he is “unaware of any
reported decision authorizing a sentencing court in a murder case to mitigate a juvenile’s
automatic indeterminate-life punishment under section 12022.53[, subdivisions]
(d)/(e)(1) when the resultant enhanced sentence is not a de facto or de jure LWOP
sentence.”

17
‘attendant’ circumstances, as ‘sentencing factors,’ which may point to the minor’s ‘crime
reflect[ing] “‘unfortunate yet transient immaturity’”’ but not ‘irreparable corruption.’”
The problem with defendant’s argument is that, in the vast majority of
cases, a judge will be unable to determine, at the time of sentencing, whether the juvenile
offender suffers only from transient immaturity as opposed to irreparable corruption.
This is because of “the great difficulty . . . of distinguishing at this early age between ‘the
juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare
juvenile offender whose crime reflects irreparable corruption.’” (Miller, supra, 567 U.S.
at pp. 479-480, italics added.) “‘It is difficult even for expert psychologists to
differentiate between the juvenile offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’”
(Graham, supra, 560 U.S. at p. 73.) 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, at p. 471.) A child has the capacity to change.
(Graham, at p. 68.) “Graham mandates the chance to obtain release based on
demonstrated maturity and rehabilitation. This crucial determination cannot in most
cases be achieved at sentencing because the juvenile offender will not yet have had an
opportunity to exhibit these traits. Rehabilitation and maturity await the passage of time
before they can reliably reveal themselves, and this is precisely what Graham directs.”
9
(Scott, supra, 3 Cal.App.5th at p. 1280.)
9
In his supplemental reply brief, defendant places great reliance on the U.S.
Supreme Court’s recent decision in Montgomery v. Louisiana (2016) 577 U.S. ___ [136
S.Ct. 718] (Montgomery). Defendant contends that “Montgomery explains portions of
the Miller decision that are pertinent to the instant appeal.”
Montgomery held that “Miller announced a substantive rule that is
retroactive in cases on collateral review.” (Montgomery, supra, 577 U.S. at p. ___ [136
S.Ct. at p. 732].) In explaining this conclusion, Montgomery summarized in less than
four pages Miller’s 15-page decision. (Montgomery, at p. ___ [136 S.Ct. at pp. 732-
735].) Necessarily, Montgomery’s summary provides merely a shorthand description of
Miller’s reasoning. Nonetheless, defendant argues that the U.S. “Supreme Court in

18
 “It is for the State, in the first instance, to explore the means and
mechanisms for” complying with Graham’s requirement that juvenile offenders be given
a “meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.” (Graham, supra, 560 U.S. at p. 75.) Section 3051 establishes what is, in
the view of the Legislature of this State, “the appropriate time to determine whether a
juvenile offender has ‘rehabilitated and gained maturity’ . . . .” (Franklin, supra, 63
Cal.4th at p. 278.) The “criteria for parole suitability set forth in . . . sections 3051 and
4801 contemplate that the Board’s decision making at [the] eventual parole hearing will
be informed by youth-related factors, such as his cognitive ability, character, and social
and family background at the time of the offense.” (Id. at p. 269.) Consequently, a trial
court must afford the parties an opportunity “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’

Montgomery describes the Miller decision in terms of what Eighth Amendment principles
require the sentencing court to consider at the time when the minor is being sentenced
[citation], and not at some future time when the minor may qualify for parole
consideration (as, for example, under section 3051).”
Montgomery does state: “Even if a court considers a child’s age before
sentencing him or her to a lifetime in prison, that sentence still violates the Eighth
Amendment for a child whose crime reflects ‘“unfortunate yet transient immaturity.”’
[Citations.] Because Miller determined that sentencing a child to life without parole is
excessive for all but ‘“the rare juvenile offender whose crime reflects irreparable
corruption,”’ [citations], it rendered life without parole an unconstitutional penalty for ‘a
class of defendants because of their status’ — that is, juvenile offenders whose crimes
reflect the transient immaturity of youth.” (Montgomery, supra, 577 U.S. at p. ___ [136
S.Ct. at p. 734].)
The above excerpt from Montgomery cites to the passage in Miller which
recognizes the difficulty of distinguishing at an early age between an immature but
remediable juvenile and an irreparably incorrigible one. We decline to place inordinate
reliance on Montgomery’s shorthand summary of what Miller says, rather than on
Miller’s own language in its original context.

19
[citation].” (Franklin, at p. 284.) Sections 3051 and 4801 (together with the bans on
death penalty, LWOP, and de facto LWOP sentences established in Roper, Graham,
Miller, Caballero, and Franklin) guarantee that imposition of punishment on a juvenile
offender in this State proceeds with full recognition that he or she was a child when
committing the crime.
In sum, Franklin does not contravene Miller. And, in any case, defendant
did, in fact, receive individualized sentencing from the trial judge, who expressly
considered “defendant’s youth,” “the atten[dant] circumstances” in this case, “the nature
of the crime,” his “lesser culpability in this case because he’s an aider and abettor as
opposed to a perpetrator,” “a juvenile’s greater capacity for change,” and defendant’s
criminal history (which started “at age 13”). Accordingly, under the rationale of
Franklin, and the individualized sentencing defendant received, his constitutional
challenge to his sentence lacks merit.

Defendant’s Punishment for Count 3 Is Not Barred by Section 654
Defendant contends his concurrent sentence for the count 3 crime of
shooting at an occupied vehicle should be stayed under section 654 on grounds it is based
on the same act and continuous course of conduct as his crimes of murder and attempted
murder — i.e., “sitting in the back of a car during a shooting incident.”
Section 654, subdivision (a), provides: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.”
Section 654 “‘literally applies only where [multiple] punishment arises out
of multiple statutory violations produced by the “same act or omission.” [Citation.]
However, . . . its protection has been extended to cases in which there are several offenses
committed during “a course of conduct deemed to be indivisible in time.” [Citation.]’”

20
(People v. Hicks (1993) 6 Cal.4th 784, 789.) As explained by our Supreme Court in
People v. Britt (2004) 32 Cal.4th 944, 951-952: “‘Whether a course of criminal conduct
is divisible and therefore gives rise to more than one act within the meaning of section
654 depends on the intent and objective of the actor. If all of the offenses were incident
to one objective, the defendant may be punished for any one of such offenses but not for
more than one.’ [Citation.] A decade ago, we criticized this test but also reaffirmed it as
the established law of this state. [Citation.] We noted, however, that cases have
sometimes found separate objectives when the objectives were either (1) consecutive
even if similar or (2) different even if simultaneous. In those cases, multiple punishment
was permitted.”
A defendant’s criminal objective should not be defined too broadly and
amorphously. In People v. Perez (1979) 23 Cal.3d 545, our Supreme Court “held that the
defendant could be separately punished for separate sex offenses against the same victim.
‘[F]ocus[ing] on the question whether defendant should be deemed to have entertained
single or multiple criminal objectives’ [citation], [Perez ] rejected the defendant’s
argument that he had but a single objective in committing each sex offense — to obtain
sexual gratification. ‘Such an intent and objective is much too broad and amorphous to
determine the applicability of section 654. . . . To accept such a broad, overriding intent
and objective to preclude punishment for otherwise clearly separate offenses would
violate the statute’s purpose to insure that a defendant’s punishment will be
commensurate with his culpability.’” (People v. Britt, supra, 32 Cal.4th at p. 953.)
In People v. Trotter (1992) 7 Cal.App.4th 363, the defendant fired a
gunshot at a police car, then fired a second shot about a minute later, and seconds later
fired a third shot. (Id. at p. 366.) The trial court imposed consecutive sentences for two
of the assaults, and the appellate court affirmed the sentence, stating: “Each shot posed a
separate and distinct risk to [the officer] and nearby freeway drivers. . . . Each shot
required a separate trigger pull. All three assaults were volitional and calculated, and

21
were separated by periods of time during which reflection was possible. None was
spontaneous or uncontrollable. ‘[D]efendant should . . . not be rewarded where, instead
of taking advantage of an opportunity to walk away from the victim, he voluntarily
resumed his . . . assaultive behavior.’” (Id. at p. 368.)
Here, substantial evidence shows a separate intent and objective for murder,
attempted murder, and shooting at an occupied vehicle. (People v. Herrera (1999) 70
Cal.App.4th 1456, 1466, disapproved on another ground in People v. Mesa (2012) 54
Cal.4th 191 [whether defendant held multiple criminal objectives is factual question
subject to substantial evidence standard of review]; People v. Blake (1998) 68
Cal.App.4th 509, 512 [trial court’s implied finding defendant harbored separate intents
10
and objectives upheld on appeal if supported by substantial evidence].) An appellate
court views the evidence in a light most favorable to the respondent and presumes in
support of the sentencing order the existence of every fact the trier could reasonably
deduce from the evidence. (People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113.)
So viewed, the record shows that (1) the rival gang-occupied SUV contained eight
people, (2) around five bullets were shot at the SUV, which was later found to have three
bullet holes in it, and (4) officers found five expended bullet casings and one bullet at the
scene. The crime of shooting at an occupied vehicle “is not limited to shooting directly at
[the] occupied target.” (People v. Overman (2005) 126 Cal.App.4th 1344, 1355-1356.)
Rather, the applicable statute “proscribes shooting either directly at or in close proximity
to an . . . occupied target under circumstances showing a conscious disregard for the
probability that one or more bullets will strike the target or persons in or around it.” (Id.
at p. 1356.)

10
Because defendant did not lodge a section 654 objection below to the
concurrent sentence on count 3, the court made no finding on the issue. Nonetheless,
defendant may raise the issue on appeal. (Scott, supra, 9 Cal.4th at p. 354 & fn. 17.)

22
 Two persons in the SUV were struck by bullets. Those two persons were
the named murder (count 1) and attempted murder (count 2) victims. Each of the five
gunshots involved a consecutive (albeit similar) intent and objective. As in Trotter (and
in the Attorney General’s words), “each shot fired at the SUV was a separate trigger pull,
accompanied by a separate intent and objective, and constituted a separate risk to its
11
passengers . . . .”
Thus, we conclude the court properly punished defendant for count 3.

Defendant’s Abstract of Judgment Must Be Corrected
Defendant correctly points out that his abstract of judgment incorrectly
describes his conviction for count 3 as discharging a firearm at an “inhabited dwel[ling].”
We will direct the trial court to correct defendant’s abstract of judgment to accurately
describe his conviction for count 3 as shooting at an “occupied motor vehicle.”

II
Proposition 57, and SB 620

“In November 2016,” while the appeal in this case was pending, “the
electorate passed Proposition 57, the ‘Public Safety and Rehabilitation Act of 2016’
(Proposition 57). Proposition 57 prohibits prosecutors from charging juveniles with
crimes directly in adult court. Instead, they must commence the action in juvenile court.

11
Because the gunshots reflected separate intents and objectives, we do not
address the Attorney General’s alternative argument the multiple victim exception
applies. As to this exception, defendant argues: “Trotter pertained to three counts of
assault on a peace officer, each of which counts involved a specific victim (the identical
officer). Unlike the counts in Trotter, the section 246 count here has no named victim
and needs none.” Nonetheless (and without commenting on the merits of that argument),
we simply repeat that Trotter’s analysis concerning the separate intent and objective test
is applicable to the case at hand.

23
If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct
what we will call a ‘transfer hearing’ to determine whether the matter should remain in
juvenile court or be transferred to adult court. Only if the juvenile court transfers the
matter to adult court can the juvenile be tried and sentenced as an adult.” (Lara, supra, 4
Cal.5th at p. 303.)
We must decide whether this part of Proposition 57 applies retroactively to
benefit defendant. In Estrada, supra, 63 Cal.2d 740 the California Supreme Court “held
that a statute that reduced the punishment for a crime applied retroactively to any case in
which the judgment was not final before the statute took effect.” (Lara, supra, 4 Cal.5th
at p. 303.) At the time defendant and the People filed their supplemental briefing on this
issue, there was a split in the Courts of Appeal regarding whether Proposition 57
amounted to a reduction in punishment such that the Estrada rule of retroactivity applies.
(See id. at p. 310.) Since that briefing, the California Supreme Court has resolved the
issue. Estrada applies. (Id. at p. 303.)
The Lara court expressly approved of the disposition reached in Vela,
supra, 11 Cal.App.5th 68, review granted. (Lara, supra, 4 Cal.5th at p. 313.) Vela
provided the following instructions to the trial court, which were republished in People v.
Vela, supra, 21 Cal.App.5th 1099, following remand from the Supreme Court: “The
cause is remanded to the juvenile court with directions to conduct a transfer hearing, as
discussed within this opinion, no later than 90 days from the filing of the remittitur. If, at
the transfer hearing, the juvenile court determines that it would have transferred [the
defendant] to a court of criminal jurisdiction, then the convictions shall be reinstated as of
that date.” (Id. at p. 1114.) “If, at the transfer hearing, the juvenile court determines that
it would not have transferred [the defendant] to a court of criminal jurisdiction, then [the
defendant’s] criminal convictions and enhancements will be deemed to be juvenile
adjudications as of that date. The juvenile court is then to conduct a dispositional hearing

24
within its usual time frame.” (Id. at pp. 1114-1115.) We echo those instructions for the
trial court in this case.
After we recalled the remittitur in this case, and thus when the case was not
final, Governor Brown signed SB 620 into law, which took effect on January 1, 2018.
(People v. Matthews (2018) 21 Cal.App.5th 130, 132.) That bill amended Penal Code
sections 12022.5 and 12022.53, which set forth firearm enhancements, so that the court
may now, in its discretion, strike the enhancements in the interests of justice. (Pen. Code,
§§ 12022.5, subd. (c), 12022.53, subd. (h).) The People concede that the Estrada rule of
retroactivity applies to SB 620 and that we should remand to the trial court to exercise its
discretion in deciding whether to strike the firearm enhancements. We agree.

DISPOSITION

The judgment is conditionally reversed. The cause is remanded with
instructions that it be transferred to the juvenile court to conduct a transfer hearing no
later than 90 days from the filing of the remittitur.
If, at the transfer hearing, the juvenile court determines that it would have
transferred defendant to a court of criminal jurisdiction, then the matter shall be
transferred to the criminal court and defendant’s conviction is to be reinstated. The court
shall then resentence defendant and must exercise its discretion under SB 620.

25
 If, at the transfer hearing, the juvenile court determines that it would not
have transferred defendant to a court of criminal jurisdiction, then defendant’s
criminal convictions and enhancements will be deemed juvenile adjudications as of the
date of the verdict. The juvenile court shall exercise its discretion pursuant to SB 620 in
deciding whether to strike the firearm enhancements. The juvenile court is then to
conduct a dispositional hearing within its usual timeframe.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.

26