People v. Garcia, 2d Crim. B269836

Decision Date17 December 2018
Docket Number2d Crim. B269836
Citation30 Cal.App.5th 316,241 Cal.Rptr.3d 349
CourtCalifornia Court of Appeals Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Izick David GARCIA, Defendant and Appellant.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan S. Pithy, Shawn M. Webb, Supervising Deputy Attorneys General, Alene M. Games, and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

PERREN, J.

In 1996, appellant Izick David Garcia was convicted of multiple violent sex offenses and sentenced to a prison term of 94 years to life. Appellant was 17 at the time he committed the crimes. We affirmed the judgment. (People v. Garcia (July 29, 1997, B104833) [nonpub. opn.] (Garcia I ).)

In 2012, appellant filed a petition for writ of habeas corpus challenging the constitutionality of his sentence. He claimed he was entitled to resentencing under a new line of cases holding that a juvenile’s sentence for a nonhomicide offense violates the Eighth Amendment’s prohibition against cruel and unusual punishment if it amounts to a de facto life without the possibility of parole (LWOP) sentence. (See Miller v. Alabama (2012) 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ); Graham v. Florida (2010) 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 ( Graham ); People v. Caballero (2012) 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291 ( Caballero ).) The trial court granted appellant’s petition and resentenced him to 50 years to life in state prison. It determined the revised sentence is constitutional in that it affords appellant a meaningful opportunity for a parole hearing within his natural life expectancy. (See Caballero , at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291.)

Appellant contends, and the Attorney General concedes, that Proposition 57 requires that we vacate the sentence, conditionally reverse the convictions, and remand to the trial court with directions to refer the case to the juvenile court for a transfer hearing to determine the propriety of prosecution of the case in adult criminal court. (See Welf. & Inst. Code, § 707, subd. (a) ; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 310, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ).)

If the juvenile court determines it would not have transferred appellant to criminal court under current law, the juvenile court shall treat appellant’s convictions as juvenile adjudications and impose an appropriate disposition. ( Lara , supra , 4 Cal.5th at p. 310, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

If the juvenile court decides it would have transferred appellant to criminal court, the case shall be transferred to criminal court, which shall reinstate appellant’s convictions but conduct a resentencing hearing in accordance with People v. Contreras (2018) 4 Cal.5th 349, 383, 229 Cal.Rptr.3d 249, 411 P.3d 445 ( Contreras ). The Supreme Court in that case held that a sentence of 50 years to life constitutes a de facto LWOP sentence in violation of the Eighth Amendment. ( Id. at p. 379, 229 Cal.Rptr.3d 249, 411 P.3d 445.)

Finally, appellant argues that Penal Code section 30511 violates the equal protection clause and the Eighth Amendment because it excludes him and other juveniles sentenced under the One Strike law from a youth offender parole hearing after 25 years in prison. Contreras considered this argument but declined to decide the issue, stating "[i]t suffices to note ... that the current penal scheme for juveniles may warrant additional legislative action." ( Contreras , supra , 4 Cal.5th at p. 382, 229 Cal.Rptr.3d 249, 411 P.3d 445.) Because the matter must be remanded to the trial court for further proceedings, we conclude the issue is not ripe for review.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of the underlying crimes are minimally relevant to the issues raised on appeal. Briefly, on January 8 or 9, 1995, appellant, who was 17 years old, approached Jill N., threw her to the ground and choked her. Appellant forced Jill N. at knifepoint to orally copulate him. He also raped her. Appellant choked her into unconsciousness and when she awoke, appellant was gone, along with her belongings. (Garcia I , supra , B104833.)

On January 28, 1995, appellant raped Jane Doe in her hotel room. Appellant also hit her in the face and kicked her in the stomach and chest area. She suffered a fractured eye socket, ruptured eardrum, massive bruising and loosened teeth. After appellant left, she discovered that her wallet and other property were missing. (Garcia I , supra , B104833.)

On February 6, 1995, appellant attacked Hulda I. as she was walking on the beach. He grabbed her by the neck, put a gun to her side and said he would kill her if she called out. Appellant then choked her and hit her repeatedly in the face. After a passerby responded to her screams, appellant ran away. (Garcia I , supra , B104833.)

A jury convicted appellant of crimes against the three victims, including forcible oral copulation (count 1; § 288a, subd. (c) ), forcible rape (counts 2 & 7; § 261, subd. (a)(2) ), assault by means of force likely to produce great bodily injury (counts 3 & 10; § 245, subd. (a)(1) ), robbery (counts 4 & 8, § 211), kidnapping for sexual purposes (counts 5 & 12; §§ 207, subd. (a), former 208, subd. (d) ), forcible penetration by a foreign object (count 6; § 289, subd. (a) ), first degree burglary (count 9; § 459), and assault with intent to commit rape (count 11; § 220). The jury also found true allegations that appellant personally used a deadly weapon and inflicted great bodily injury on Jill N. (§§ 12022, subd. (b), 12022.3, 12022.7, 12022.8), and that he inflicted great bodily injury on Jane Doe (§§ 12022.7, 12022.8). Further, the jury found true the allegation that the crime of forcible penetration by a foreign objection (§ 289, subd. (a) ) against Jane Doe occurred during the commission of a burglary pursuant to section 667.61, subdivisions (a) and (d). The jury also found true the allegation that appellant personally used a firearm during the commission of the offenses against Hulda I. (§ 12022.5, subd. (a).) Appellant was sentenced to an aggregate term of 94 years to life in prison. (Garcia I , supra , B104833.)

Miller , Graham and Caballero were decided years after appellant was sentenced.

Based on these authorities, appellant filed a habeas petition challenging the legality of his sentence. The trial court issued an order to show cause, observing that since appellant "can only earn credit at the rate of 15%, he will be approximately 97 years old when he is first eligible for parole. [Appellant] turned 30 in 2007. At that time, a 30 year old African-American male was expected to live to the age of 72.7 years. [Citation.] Therefore, [appellant’s] parole eligibility date ... falls outside his natural life expectancy."

At the show cause hearing, the prosecution requested a sentence that would render appellant eligible for a parole hearing date when he is approximately 77 years old. Defense counsel asked for a determinate sentence of 45 years, emphasizing certain mitigating factors, including appellant’s childhood history of foster care and impoverishment and the improvements in his attitude and behavior in prison. Appellant testified on his own behalf.

Noting that Miller , Graham and Caballero require that juvenile offenders be given "a meaningful opportunity to rehabilitate and to demonstrate that [they] should be paroled within their natural life expectancy," the court imposed a sentence of 50 years to life. The sentence was comprised of two terms of 25 years to life, for counts 2 and 7, pursuant to section 667.61, known as the One Strike law.2 The court found that this sentence would give appellant "an opportunity to prove that [he’s] capable of living on the outside at the age of 59. That’s my calculation. Maybe it’s 60, maybe it’s 58, but somewhere in that ballpark. So, that’s not young, but it’s not 77 either."

DISCUSSION
Appellant is Entitled to a Juvenile Court Transfer Hearing

In supplemental briefing, appellant contends that, due to the passage of Proposition 57, he is entitled to a hearing in juvenile court regarding whether his case should be transferred to adult criminal court. Appellant requests that the judgment be conditionally reversed, so that the hearing may take place. The Attorney General concedes appellant is entitled to a transfer hearing.3

Appellant was charged with the offenses in 1995. Under the law at the time, appellant’s case had to be brought in juvenile court. (See former Welf. and Inst. Code section 707 ; Juan G. v. Superior Court (2012) 209 Cal.App.4th 1480, 1489 & fn. 4, 147 Cal.Rptr.3d 816.) In order to try appellant as an adult, the district attorney had to file a motion pursuant to former Welfare and Institutions Code section 707, subdivision (c) for a judicial determination that appellant was not fit to be dealt with under juvenile court law. For purposes of the motion, appellant was "presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, ... that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court," based on five criteria: "(1) The degree of criminal sophistication exhibited by the minor. [¶] (2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. [¶] (3) The minor’s previous delinquent history. [¶] (4) Success of previous attempts by the juvenile court to rehabilitate the minor. [¶] (5) The circumstances and gravity of the offenses alleged in the petition to have been committed by the minor." (Ibid .) In order to...

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