People v. Ceballos CA1/2 ( 2021 )

Filed 4/23/21 P. v. Ceballos CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, A158314
v. (Solano County
ANDREW CEBALLOS, Super. Ct. No. VCR221474)
Defendant and Appellant.
ORDER MODIFYING OPINION
BY THE COURT:
The opinion filed herein on March 24, 2021, is modified as
follows.
On page 19, the second sentence in the first full paragraph
is modified to read:
As to the other arguments, the People assert that at least two of
them, arguments two (equal protection) and three (denial of
Romero motion) were waived, as the arguments could have been
made in the first appeal.
This modification does not effect a change in the judgment.
Date: 4/23/21 ________________
Kline, P.J.
1
Filed 3/24/21 P. v. Ceballos CA1/2 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A158314
v.
ANDREW CEBALLOS, (Solano County
Super. Ct. No. VCR221474)
Defendant and Appellant.
Defendant Andrew Ceballos was convicted of second degree murder and
assault with a semiautomatic firearm after he fired eight shots through the
closed door of a crowded bedroom, killing one of the five people inside.
Defendant appealed, and in August 2018, we affirmed the judgment of
conviction. But, based on a change in the law, we remanded the case “for the
sole purpose of allowing the trial court to exercise its discretion under
subdivision (h) of [Penal Code] section 12022.53” whether to strike the
25-year enhancement imposed for personal use of a firearm.
Prior to resentencing, defendant filed a sentencing memorandum that
raised additional claims attacking his sentence, claims not even responded to
in the People’s opposition memorandum. The trial court declined to strike
the enhancement. And as to defendant’s additional claims, the trial court
1
noted they had already been decided and rejected on appeal, and, even if it
were to consider the claims, it would deny them on the merits.
Defendant appeals again, contending the trial court abused its
discretion in refusing to strike the personal use enhancement. In addition,
defendant makes five other arguments, two of which are identical to
arguments rejected in his first appeal. He has also filed a petition for writ of
habeas corpus, claiming that his trial counsel rendered ineffective assistance
in various ways. The petition also asserts arguments rejected in his prior
appeal, and others that are identical to his claims on appeal.
We conclude that only two claims of error are properly before us on
appeal: (1) the refusal to strike the gun enhancement and (2) the imposition
of a restitution fine. As to the first, we remand to the trial court once again,
to exercise its discretion in light of all applicable legal principles. As to the
second, we affirm. And as to the habeas corpus petition, we issue an order to
show cause returnable in the trial court, in effect transferring the petition
there, a transfer agreed to by both sides.
BACKGROUND
The Facts
The victim, Willie Troy Johnson (Troy, sometimes called T-Roy) was
killed on July 14, 2014 in the home of defendant’s mother Judith Williams.
These are the facts leading to the killing.1
Twenty-four-year-old defendant and his three-year-old daughter were
living with Williams and her boyfriend, Major Carter, in Williams’s small,
one-bedroom home in Vallejo, having moved in about three months earlier.
1 We granted defendant’s motion to augment the record with the record
in the first appeal, No. A148521.
2
Williams and Carter slept in the bedroom, and defendant and his daughter in
the living room, where defendant slept on the couch. The home was a “trap
house” where people would use or buy heroin.
A day or so before July 14, defendant had an argument with Carter,
defendant believing that Carter was cheating on his mother by having an
affair. Defendant punched Carter numerous times, leaving his face swollen
and with two black eyes. Defendant claimed that after the beating his
mother told him he had to move out.
On the night before July 14, several people besides Williams were at
her house, including defendant, his daughter, Terrance Woods (a friend of
Williams and Carter), Troy, and his son Tynez Johnson. Woods heard
defendant arguing with his mother about having to leave the house, following
which argument defendant left the house, not to return that night. Shortly
after defendant left, Woods, Troy, and Tynez also left. Troy returned later
that evening and Tynez even later, joining his father to sleep in the living
room.
Sometime the next morning, defendant returned to the house, and then
left again for a few hours, asking Troy to watch his daughter.2 At that point,
Williams, Carter, Troy, Woods, Tynez and defendant’s daughter were at the
house. Sometime that morning, Williams made pancakes for everyone, and
they ate together in the bedroom. And the five adults spent the next few
hours together in the bedroom watching movies on television.3
It is not clear exactly when defendant left, but Tynez remembered
2
that defendant was there when he woke up.
The bedroom was a square, measuring nine feet, ten inches on each
3
side. The width of the bedroom door was two feet, eight inches.
3
Defendant returned to the house after a few hours, estimating he
arrived around 11:30 or noon. With the others still in the bedroom,
defendant lay down on the living room couch and went to sleep.
Williams, who had been sitting on the bed with Carter, left the
bedroom to do dishes and then make a phone call. To remain shut, the
bedroom door had to be latched from inside, and when Williams left the room,
Troy, who was closest to the door, latched it shut.
Sometime between 1:00 and 2:00 p.m., defendant’s former girlfriend,
Aqua Vincent, came by the house, driven by her friend Kayla Reed. Vincent
and Reed had come from a doctor’s appointment for Vincent’s newborn baby,
who was defendant’s son, and had gone to Williams’s house “to pick up money
from defendant.”4 Reed and the baby stayed in the car in the alley outside
the house, while Vincent went into the house where she saw defendant asleep
on the couch. Vincent tried to wake him up, without success, and went back
outside, where Williams was now sitting in the car with the baby. When
Vincent told Williams that defendant would not wake up, Williams said she
would try to wake him up, to which Vincent responded, “Good luck.”
Defendant became angry after his mother woke him up and they began
to argue. According to defendant, his mother told him that she and Carter
had decided that he could not live there but would not tell him why he had to
leave.
Around the same time, Jami Schooler was in the house to “get some
dope.” When she arrived, defendant was asleep on the couch, Williams was
in the kitchen, and Carter, Woods, Troy, and Tynez were in the bedroom.
Defendant and his daughter had lived with Vincent for nine months
4
before they severed their relationship and defendant moved in with his
mother.
4
About the time Schooler was going to leave, she saw defendant and his
mother arguing in the kitchen. She then saw defendant go into the living
room and return with a gun that he put in the waistband of his pants.
Schooler decided it was time to leave, went outside, and began to walk away,
when she heard gunshots.
Before the shooting, defendant had gone outside to the driver’s side of
Reed’s car and asked Vincent to take him to the store. Vincent refused,
saying she did not have time for that. Williams had followed him outside and
stood on the porch, continuing to argue with him about Carter and telling
him she wanted him and his daughter out of the house. Like Schooler,
Vincent also decided she did not want to stay, and she told police she heard
Williams say something like “shoot me or put that thing away.” Vincent and
Reed began to drive away, and moments later heard gunshots.
Just before the shooting, Tynez and Woods heard defendant and his
mother arguing loudly outside the bedroom, being able to hear over the sound
of the television. Then, after the shouting ended, defendant fired at least
eight bullets into the bedroom, primarily through the door. After the first
shot, Tynez, Troy, and Woods dove to the ground, and Carter backed himself
against the wall. Troy was hit by one of the bullets and within minutes died
of a gunshot wound that entered his left chest, passed through his heart,
stomach, and liver, and exited his abdomen.5
After the shooting, Tynez and Woods immediately went to provide aid
to Troy. Soon after, the latched door was “kicked open[],” and Williams ran
into the bedroom followed by defendant. Tynez heard defendant say “T-Roy,”
5 Police later recovered four casings from a nine-millimeter
semiautomatic, and identified seven bullet holes in the bedroom door that
“spanned from the bottom to the top of the door” and an additional bullet hole
in the frame to the left of the door.
5
and thought defendant seemed surprised he had shot Troy. Woods said that
defendant, while still holding the gun, said, “Oh, my God” and “What the fuck
have I done?” With the gun still in his hand, defendant left the house, went
to a friend’s house, and called Vincent, telling her he was sorry.
Defendant was found by police and arrested two weeks later. During
an interview with police, he denied that he was present at the shooting.
The Proceedings Below
On December 1, 2014, the district attorney filed an information
charging defendant with two counts: in count 1, with murder, and alleging
enhancements for discharge of a firearm resulting in death, discharge of a
firearm, and personal use of a firearm. (Pen. Code, §§ 187, subd. (a),
12022.53, subds. (b), (c), (d), 12022.5, subd. (a)(1))6; and in count 2, with
assault with a semiautomatic firearm, and alleging an enhancement for
personal use of a firearm (§§ 245, subd. (b), 12022.5, subd. (a)(1)). The
information also alleged a prior juvenile adjudication for robbery as a strike
offense. (§ 667, subds.(a)(1), (b), 1170.12, subds. (a)–(d).)
Following a seven-day trial, a jury found defendant guilty of the
charges and found true the firearm enhancements. Defendant waived jury
trial of his prior offenses, and on August 21, 2015, the trial court found true a
prior robbery, which was both a serious felony and a strike offense.
On May 9, 2016, the trial court denied defendant’s motion for new trial
and his Romero motion to dismiss his strike offense.7 Doing so, the court was
aware that defendant committed his strike offense as a juvenile, but
nonetheless found that he did not fall outside the spirit of the Three Strikes
sentencing scheme. The trial court noted that defendant had a long and
6 All statutory references are to the Penal Code unless noted.
7 People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.
6
continuous history of offenses and that he committed the present offense,
second degree murder, shortly after his release from California Youth
Authority (CYA) where he had served 76 months for the strike offense
robbery.
The trial court sentenced defendant to an aggregate term of 55 years to
life: a principal term of 30 years to life (15 years to life doubled by the prior
strike) for second degree murder and a consecutive 25 years to life term on
the firearm enhancement in count 1; concurrent high terms for the assault
offense (nine years, doubled to 18 years by the prior strike offense) and the
firearm enhancement (10 years) in count 2, punishment for which was stayed
under section 654.
Defendant appealed.
The First Appeal
In his first appeal, represented by attorney Laura Kelly, the attorney
who represents him here, defendant filed a 118-page opening brief that had
five arguments: (1) discriminatory exercise of peremptory challenges in
violation of Batson/Wheeler8; (2) insufficiency of the evidence for the assault
conviction; (3) prosecutorial misconduct in closing argument; (4) the sentence
violated the Eighth Amendment and section 17 of the California
Constitution; and (5) use of a juvenile adjudication as a strike violated
defendant’s right to jury trial. On August 2, 2018, we filed our unpublished
opinion rejecting all five arguments.
During the pendency of the appeal, the Governor signed Senate Bill No.
620, effective January 1, 2018, which amended section 12022.53 to give the
trial court the authority to strike in the interests of justice a firearm
8Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978)
22 Cal.3d 258.
7
enhancement allegation found true under that statute. (Stats. 2017, ch. 682,
§ 2.) In supplemental briefing, defendant asserted that the amendment
applied to him because his case was not yet final, and that the matter had to
be remanded to afford the trial court the opportunity to exercise its discretion
to strike the firearm enhancement that was no longer mandatory under
section 12022.53.
In the concluding three paragraphs of our opinion, we addressed
defendant’s claim:
“The Attorney General does not contest most of defendant’s reasoning.
But he does believe that comments made by the trial court at the time of
sentencing establish that it would not exercise its new discretion in
defendant’s favor. The Attorney General’s logic is not sufficiently persuasive.
“As the Attorney General points out, at the time of sentencing the court
denied defendant’s motion to strike his juvenile prior in accordance with
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, concluding: ‘From
his juvenile probation, he had an opportunity to rehabilitate himself or seek
some sort of rehabilitation. His crimes continued, undeterred. Also, he had a
lengthy 76-month term at CYA. That did not deter him from continued
criminal conduct as an adult. [¶] So for those reasons, in terms of applying
the applicable law here, the Romero motion is denied.’
“Still, we cannot agree that remand would be an idle act as a matter of
law. The court ‘recognize[d] that the defendant did not intend to kill this
particular victim.’ And it ran the sentence on the assault conviction
concurrently with the murder sentence. It may not be likely that the court
will give defendant another break, but it may. At bottom, this court feels a
deep reluctance to assume that it knows how a trial court would have
8
exercised a discretion it did not know it possessed. In short, we are loathe to
put words in the trial court’s mouth.”
And with that, we set forth our disposition: “The cause is remanded for
the sole purpose of allowing the trial court to exercise its discretion under
subdivision (h) of section 12022.53. The judgment of conviction is affirmed in
all other respects.”
Resentencing
The resentencing came on for hearing on August 30, 2019, before the
Honorable Tim Kam, the same judge who had presided over defendant’s trial
and sentencing. Defendant was represented by attorney Dustin Gordon, the
People by Deputy District Attorney Paul Sequeira.
Prior to the resentencing hearing, Mr. Gordon filed on behalf of
defendant a sentencing memorandum that inclusive of exhibits was 25 pages
long. Despite the limited nature of our remand, the sentencing memorandum
contained four arguments: (1) the court should strike defendant’s prior
juvenile robbery adjudication pursuant to section 1385 because his prior
juvenile strike does not warrant him being denied eligibility for relief
pursuant to section 3051; (2) the limitation contained in section 3051,
subdivision (h) prohibiting youthful offenders who have a prior juvenile strike
from receiving relief violates the equal protection clause of the United States
and California Constitutions; (3) the court should strike the gun
enhancements “due to [defendant’s] age and the fact that he did not intend to
kill anyone”; and (4) defendant’s sentence amounts to cruel and unusual
punishment. The fourth argument had been specifically rejected in our
opinion, although the argument, which we described as “pro forma,” had not
been fashioned in light of section 3051.
9
Defendant’s sentencing memorandum also referred to the 2008 offense,
for which defendant was adjudicated. And it also acknowledged this other
activity: “Other than the juvenile robbery conviction [defendant] had two
residential burglary adjudications that were sustained, both when he was 13
years old. It appeared he also had a juvenile petition when he was 16 years
old for violations of Penal Code sections 459, 496, and 243[, subdivision]
(d)(1). [¶] The only adult conviction was a felony hit and run, which
[defendant] was pending sentencing at the time of his instant offense.”
Then, after quoting the Penal Code section that caused our remand, the
sentencing memorandum asserted this:
“In the instant action the interests of justice favor striking the personal
use enhancements which will allow the court to fashion a more appropriate
sentence. In the instant action it is undisputed that [defendant] did not
intend to kill anyone. Yet the sentence that was previously imposed, 55 years
to life is tantamount to a sentence of life in prison without parole considering
that [defendant] will not be eligible for parole until he is 79-years-old. A
sentence of life in prison without parole is not warranted in a case where the
defendant did not have the intent to kill anyone.
“[Defendant]’s criminal history does not indicate that he is beyond
rehabilitation. His only other adult conviction is for a hit and run. His father
has turned his life around and has reconnected to [defendant]. [Citation.] He
has family that supports him and he has two kids that he hopes to see one
day when he is not in custody. Moreover, [defendant] recognizes that his own
choices and poor decisions have put him in this situation. [Citation.]”
Defendant’s sentencing memorandum also cited to Miller v. Alabama
(2012) 567 U.S. 460 (Miller), Graham v. Florida (2010) 560 U.S. 48 (Graham),
and People v. Caballero (2012) 55 Cal.4th 262 (Caballero.)
10
The district attorney filed a very brief opposition, responding only to
the third argument, seeking to strike the gun enhancement. The opposition
focused on defendant’s criminal history as a juvenile, and in its concluding
five-line argument—entitled “The Defendant’s Character and Prospects
Dictate The Gun Enhancement Not Be Stricken”—asserted that “defendant is
a reckless, violent killer. . . . [I]t appears likely that defendant will kill again.
The defendant presents an extreme danger to society. The imposition of the
gun enhancement . . . is just and appropriate.” Nothing was said about
defendant’s age, or any factors relating to it, nor was anything said about
section 3051. And the district attorney did not address, much less dispute,
the fact that the firearm enhancement meant that defendant would not be
eligible for parole until he was 79 years old.
Defendant filed a reply to the opposition, responding to the gun
enhancement argument, and also reiterating arguments that the use of the
prior juvenile adjudication to enhance his sentence violates defendant’s rights
“under the Fifth, Sixth and Fourteenth Amendments.” And as particularly
apt here, defendant’s reply said this: “In contrast the stated purpose of
Senate Bill 620 is to allow courts to strike the gun enhancements when it
would serve the ‘interests of justice.’ (See Penal Code section 12022.53 (g).)
Senate Bill 620 has given the courts discretion that they did not have prior to
the passage of the law. Thus, unlike the three strikes law which was passed
to enhance punishments for repeat offenders, Senate Bill 620 was passed to
give courts discretion to impose a lesser sentence when it satisfied the
interests of justice. Additionally, the passage of Senate Bill 620 cannot be
viewed in a vacuum. Over the past eight years several laws have been
passed which have lessened punishment, i.e., the realignment act (allowing
‘prison’ sentences for some crimes to be served at county jail and on
11
supervised release), Proposition 47 (which reclassified certain crimes from
felonies to misdemeanors and allowed courts to resentence some people given
a third strike sentence), Senate Bill 180 (otherwise known as the ‘RISE Act’
repealing three-year drug priors), and Senate Bill 1437 (abolishing the
felony-murder rule in certain circumstances). It is against this backdrop that
the court should take into consideration the practical impact of not striking
the gun enhancement.
“As stated in defendant’s sentencing memorandum a sentence of 55
years to life is tantamount to a sentence of life without parole for [defendant].
For someone as young as [defendant], where there was no intent to kill, there
should be a chance at redemption.”
The hearing on August 30 began with the court noting its “new
discretion under the law,” and also advising counsel that it had read both
parties’ resentencing materials, including the letters submitted on behalf of
defendant. The court then asked Mr. Gordon if he had any additional
comments, who then spent the next several pages in the reporter’s transcript
on issues unrelated to our remand, first noting that the “People’s brief didn’t
address my Romero argument for the constitutional argument” and then
proceeding to the equal protection claim. Mr. Gordon then turned to the
argument about striking the enhancement, which he argued for three more
pages, in the course of which he said this:
“Senate Bill 620 expanded or enhanced the court’s discretion, so I think
when the court is looking at whether it should exercise that discretion under
the newly passed law, I don’t think the mere fact the court chose not to strike
the strike previously, I don’t think that carries the day with the analysis here
because it’s different. I mean the standard is the further justice or interest of
justice, which is the underlying standard for [Penal Code section] 1385, it’s
12
somewhat informed by the discretion the court is granting. So in the Romero
situation when the court is choosing whether to exercise discretion under
[Penal Code section] 1385, kind of guiding the court’s discretion is does
[defendant] fall outside the spirit of the three strikes law. That same
analysis does not apply here when the court is considering whether to strike
the gun enhancement.
“I think the court’s discretion is much broader, and the court’s
consideration of the factors is much broader. What I mean by that, it
dovetails what I would say is the theme of my brief. The current sentence for
[defendant] does not provide a meaningful opportunity to be released, and I
think when you consider the state of the law how things have changed over
the past seven to eight years, I would say you consider the youthful offender
statute the reason why that law was passed and this law was passed, it
would be well within the court’s discretion to strike the gun enhancement.
Even if the court only made that decision, not getting into my other
argument, [defendant] has a sentence of 30 to life. Again, that means he just
has the opportunity to be paroled.”
Deputy District Attorney Sequeira responded briefly, followed by brief
reply by Mr. Gordon, who reiterated he thought his other arguments were
properly before the court. Following that, defendant apologized to the
victim’s family and told the court he regretted his actions.
The court announced that it appreciated and considered the arguments
from both sides, and then said this: “I recognize where I have discretion. The
court has given me new discretion, and the arguments you make, Mr.
Gordon, are, one, to strike the juvenile strike. I conducted the Romero motion
previously, but you’re asking me to reconsider Romero in light of the youthful
offender act. You’re asking me to look at the equal protection side of 3051 PC
13
in the context you stated it, and you’re asking me to look at the issue of
whether juvenile strike is a valid strike. That issue is on review to the U.S.
Supreme Court.”
Mr. Gordon briefly acknowledged that “The Nguyen decision is 2009.[9]
It’s ten years ago. I don’t disagree with Mr. Sequeira at all. It’s settled law.”
And then the court announced its decision: “Those are the issues you’re
asking me to look at in this context. At this point applying the law to this
case and understanding I have discretion I am going to deny that request. I
think Mr. Sequeira raises a very good point. We often do forget about those
who have been left behind, but you know my Romero factors. I listed those
previously in terms of his prior conviction as a juvenile. There [were] other
incidents if I recall. I did re-read the Court of Appeal opinion and saw the
comments that I made, so I’ll stand by those. Considering the facts of this
case, I’ll be pointing those out a little later here as well. They do not warrant
striking the strike, and my analysis under Romero has not changed in light of
PC 3051 referencing now someone under 25 their brains are not fully
developed. Looking at that picture to the extent I can consider this issue
given it was not remanded for this issue, I would still deny it. I’m not sure
this issue is properly before the court as it was not sent back on remand. If it
is, I still decline to strike the strike here in light of the previous history, just
the underlying facts of this case.
“I recognize [defendant] had a very tragic childhood as laid out in the
paperwork here. In my view it would not warrant striking the juvenile
strike. In terms of the equal protection argument and addressing the Nguyen
issues, again, those are not remanded to the trial court for those issues.
Technically I don’t think they are before me. It they are, I’m denying it as
9 People v. Nguyen (2009) 46 Cal.4th 1007.
14
well. The Legislature set forth the preference in [section] 3055 to further
punish individuals with a strike and could be rationally based on desire to
punish repeat offenders. I’m not sure that issue is before me, but that is my
thought on that. Similarly, Nguyen is settled law. If that law changes, you
make your record and seek review to the extent the law allows you to at that
point. On the 12022.53 (d) gun enhancement and 12022.5 (a) enhancement,
that is before the court.
“I heard your arguments. I don’t think it’s appropriate to strike that
allegation even in light of the defendant’s life as listed or described in the
papers. This was what strikes me and what stands out is this was over a
discussion or order, whatever you call it, to move out of the house, get out of
the house, whatever it might be. And that to me when I was thinking about
this falls within the normal range of things we just have to deal with in life.
It’s not particularly egregious or outlandish to be asked to move out, but
when you respond in this fashion firing shots behind a closed door ultimately
killing someone, that is very, very dangerous. And it’s what I think the
statute is designed to punish, this sort of conduct. Where is the
mitigation . . . ? You got someone who is killed in some fashion over
something that never should have led to that.
“So I just don’t see where there would be valid legal grounds or grounds
in the interest of justice to strike this enhancement. This is what the
Legislature contemplated for this very type of offense, and as to [the] cruel
and unusual punishment argument, again, this was not remanded to the
court for this issue. So I’m not conceding—or you raised it in the context of
new changes in the law, [section] 3051, so I’ll address it. Again, I’m not sure
if it’s in front of me to the extent whether I would have to consider whether
this is disproportionate sentence to all other similar type crime or are there
15
more serious crimes that are punished less severe than this one, some
unfairness in that regard, shock the conscious or offend human dignity. This
is what the Legislature imposed. I don’t find it disproportionate nor cruel
and unusual under the law. I mean, it is sad. There is a sad situation on
both sides here, but this is in my view proper under the law, this sentence.
So for those reasons I am denying the motion. His sentence will remain as
previously imposed.”
At no point during the hearing did the trial court even mention Miller,
Graham, or Caballero.
Immediately following the court’s ruling above, Mr. Gordon raised
another argument, one he had not made before. This is what occurred:
“MR. GORDON: There is one issue I forgot to mention because it’s not
as weighty as the other issues. There is a new case regarding fines and fees,
People v. Dueñas (2019) 30 Cal.App.5th 1157. When I looked at the judgment
from the sentencing it looked like the only fee the court imposed was $300,
the restitution fund fine. If I read Dueñas correctly, the court can impose
that. But it has to be stayed until it’s demonstrated he has ability to pay. I
apologize for not putting this in the brief. With the other issues this slipped
my mind, so I would ask the court in regards to the restitution fund fine stay
it pending hearing about his ability to pay.”
This colloquy followed:
“THE COURT: I have not read Dueñas. I heard it. It does instruct
the court to stay this fine at this point?
“MR. GORDON: That’s how I read it. You can put it over for that sole
issue.
“THE COURT: Why don’t you approach, and I’ll take a look at that.
So the operative language here, and again I know we’re talking about a
16
minimum fine, but it says we also hold that although Penal Code section
1202.4 bars consideration of the defendant’s ability to pay unless the judge is
considering increasing the fee over the statutory minimum, the execution of
any restitution fine imposed under this statute must be stayed unless I hold
inability to pay. $300 is the statutory minimum.
“MR. GORDON: It is.
“THE COURT: So that scenario I don’t have to stay it.
“MR. GORDON: Maybe I misread it. I was under the impression the
court had to impose it but stay pending ability to pay.
“THE COURT: I will rely on that and I read the law as requiring that
only if I impose above the minimum statutory fine under 1202.4, which $300
is the minimum. So deny your request at this point on that. Those are the
orders. So [defendant] will be remanded for delivery back to [the]
Department of Corrections to serve his sentence. Thank you.
“MR. SEQUEIRA: Thank you.”
The Second Appeal
On April 2, 2020, again represented by Ms. Kelly, defendant filed his
opening brief on this appeal. This brief has six arguments: (1) the trial court
abused its discretion in refusing to strike the enhancement; (2) section 3051
lacks a rational basis to the extent it denies youth offender parole hearings to
inmates with a juvenile strike, and violates equal protection; (3) the trial
court abused its discretion in refusing to strike the juvenile strike;
(4) defendant’s sentence violates the Eighth Amendment and Article 1,
section 17 of the California Constitution; (5) the use of defendant’s juvenile
adjudication as a strike prior violated his right to a jury trial under the Sixth
Amendment; and (6) the trial court erred in refusing to stay the section
1202.4 fine absent a determination that defendant is able to pay the fine.
17
On April 2, the same day defendant’s opening brief was filed, Ms. Kelly
filed on his behalf a petition for writ of habeas corpus (petition). The petition
is 79 pages, included within which are five declarations, of: (1) Robin
Keeney, defendant’s trial counsel; (2) defendant; (3) defendant’s father; (4)
Mr. Gordon, defendant’s attorney following remand; and (5) Ms. Kelly,
defendant’s attorney on the first appeal, this appeal, and the petition. On
August 28, Ms. Kelly filed a subsequent declaration concerning Mr. Keeney.
The petition has four arguments, numbered IV through VII in the table
of contents, which arguments we quote verbatim:
“IV. Trial counsel was ineffective in failing to inform Mr. Ceballos of a
potential plea agreement with a sentence of 17 or 18 years and in failing to
advise him to pursue such a plea bargain. [¶] . . . [¶]
“V. Penal Code section 3051, subdivision (h), violates Equal Protection
to the extent it denies youth offender parole hearings to inmates with
juvenile strikes. [¶] . . . [¶]
“VI. The trial court abused its discretion in refusing to strike Mr.
Ceballos’s juvenile strike. [¶] . . . [¶]
“VII. Mr. Ceballos’s sentence, which does not afford a meaningful
opportunity for release in his lifetime, violates the Eighth Amendment and
Article I, section 17 of the California Constitution.”
DISCUSSION
Introduction to the Analysis
Referring to the arguments in defendant’s opening brief on appeal and
in his petition, it is immediately apparent that two of the arguments in his
appeal and in his petition are identical to arguments defendant made in his
first appeal, which arguments we rejected. As to these arguments, defendant
18
acknowledges that they are set forth for purposes of exhaustion, and nothing
more will be said about them here.
The result is that what remains on the appeal are four arguments, only
one of which, the first, deals with the issue that caused our limited remand.
As to the other arguments, the People assert that at least two of them,
arguments numbered two (equal protection) and five (violation of right to jury
trial) were waived, as the arguments could have been made in the first
appeal. Defendant vigorously disagrees, the result of which is that the
parties devote significant portions of their briefs to the issue of waiver.
We will not weigh in on the issue here, for several reasons.
First, until the outcome of defendant’s petition for writ of habeas
corpus is known, defendant’s sentence situation may be different than it
currently is.
Second, and as noted, the arguments were not fully briefed below, and
the trial court did not have the benefit of the applicable law.
Third, defendant suggests the issues are cognizable in his petition for
writ of habeas corpus.
We thus turn to the two issues that are properly before us, beginning
with the trial court’s refusal to strike the arming enhancement.
The Refusal to Strike the Arming Enhancement Did Not Take
Into Account All Applicable Principles
The amended section 12022.53 provides that “(h) The court may, in the
interest of justice pursuant to Section 1385 and at the time of sentencing,
strike or dismiss an enhancement otherwise required to be imposed by this
section. The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.” As quoted, our
remand was for the court to “exercise its discretion under subdivision (h),”
and as defendant acknowledges we review the ruling for abuse of discretion.
19
The Law of Discretion
Defendant’s brief sets forth some boilerplate principles of discretion,
and what is involved in its exercise. But the brief does not set forth the
applicable principles governing what is its abuse, which has been described
in terms of a decision that “exceeds the bounds of reason” (People v. Beames
(2007) 40 Cal.4th 907, 920), or one that is arbitrary, capricious, patently
absurd, or even whimsical. (See, e.g., People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 390 [“ ‘ “arbitrary, capricious, or patently absurd” ’ ”];
People v. Benavides (2005) 35 Cal.4th 69, 88 [ruling “falls ‘outside the bounds
of reason’ ”]; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614
[“arbitrary, whimsical, or capricious”].) In its most recent observation on the
subject, our Supreme Court said that “A ruling that constitutes an abuse of
discretion has been described as one that is ‘so irrational or arbitrary that no
reasonable person could agree with it.’ ” (Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 773 (Sargon).)
If we were to apply those principles here, we could not conclude the
trial court abused its discretion.
But there is more to abuse of discretion than arbitrary, whimsical, or
capricious, as we discussed in People v. Jacobs (2007) 156 Cal.App.4th 728,
736–738:
“[T]here is other language which guides us here, illustrated by that in
City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 (Drew), where
the Third Appellate District rejected the contention that the sole test of abuse
of discretion was whether the trial court’s action was ‘whimsical, arbitrary, or
capricious,’ stating as follows: ‘This pejorative boilerplate is misleading since
it implies that in every case in which a trial court is reversed for an abuse of
20
discretion its action was utterly irrational. Although irrationality is beyond
the legal pale it does not mark the legal boundaries which fence in discretion.’
“Elaborating, the Court of Appeal further explained: ‘Very little of
general significance can be said about discretion. “ ‘The discretion of a trial
judge is not a whimsical, uncontrolled power, but a legal discretion, which is
subject to the limitations of legal principles governing the subject of its
action, and to reversal on appeal where no reasonable basis for the action is
shown. [Citation.]’ ” (Westside Community for Independent Living, Inc. v.
Obledo (198[3]) 33 Cal.3d 348, 355, citing to 6 Witkin, Cal Procedure (2d ed.
1971) Appeal, § 244.) The scope of discretion always resides in the particular
law being applied, i.e., in the “legal principles governing the subject of [the]
action . . . .” Action that transgresses the confines of the applicable principles
of law is outside the scope of discretion and we call such action an “abuse” of
discretion. [Citation.]’ (Drew, supra, 207 Cal.App.3d at p. 1297.) Finally, as
Drew noted, the ‘legal principles that govern the subject of discretionary
action vary greatly with context. [Citation.] They are derived from the
common law or statutes under which discretion is conferred.’ (Id. at p. 1298.)
[¶] . . . [¶]
“In Concord Communities v. City of Concord (2001) 91 Cal.App.4th
1407, 1417 our colleagues in Division Four of this court observed that ‘Abuse
of discretion has at least two components: a factual component . . . and a
legal component. [Citation.] This legal component of discretion was best
explained long ago in Bailey v. Taaffe (1866) 29 Cal. 422, 424: “The discretion
intended, however, is not a capricious or arbitrary discretion, but an
impartial discretion, guided and controlled in its exercise by fixed legal
principles. It is not a mental discretion, to be exercised ex gratia, but a legal
discretion, to be exercised in conformity with the spirit of the law and in a
21
manner to subserve and not to impede or defeat the ends of substantial
justice. . . .” ’
“All this is well described in Witkin where, likewise citing the still vital
Bailey v. Taaffe, supra, 29 Cal. 422, 424, the author distills the principle as
follows: ‘Limits of Legal Discretion. [¶] The discretion of a trial judge is not
a whimsical, uncontrolled power, but a legal discretion, which is subject to
the limitations of legal principles governing the subject of its action, and to
reversal on appeal where no reasonable basis for the action is shown. (See
5 Am.Jur.2d, Appellate Review § 695.) . . .’ (9 Witkin, Cal. Procedure (4th ed.
1997) Appeal, § 358, pp. 406–407.”10
Some Guiding Legal Principles
As quoted, amended section 12022.53 gives the trial court authority to
strike a firearm enhancement “in the interests of justice,” a term, we
conclude, that in the circumstances here must include some consideration of
defendant’s age and the factors attendant to it, as reflected in the spirit of
various developments in the law, including, by way of example, section 3051.
Section 3051 was enacted in recognition that “[e]xisting sentencing
laws do not distinguish youth from adults.” (Assem. Com. on Public Safety,
Analysis of Sen. Bill No. 260 (2013–2014 Reg. Sess.) July 2, 2013, p. 4.) The
purpose of the act was “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
In Sargon, quoted above, the Supreme Court went on to endorse this
10
expression of the standard: “ ‘The discretion of a trial judge is not a
whimsical, uncontrolled power, but a legal discretion, which is subject to the
limitations of legal principles governing the subject of its action, and to
reversal on appeal where no reasonable basis for the action is shown.’ ”
(Sargon, supra, 55 Cal.4th at p. 773, quoting 9 Witkin, Cal. Procedure (5th
ed. 2008) Appeal, § 364, p. 420.)
22
or she has been rehabilitated and gained maturity.” (Stats. 2013, ch. 312,
§ 1.)
“Despite the fact that the line between youth and adulthood has
traditionally been drawn at 18 years of age, recent amendments to
section 3051 recognize that the maturity process does not end at 18 and in
many cases extends to at least 25 years of age. In 2015, relying on the
evolving understanding of brain development, the Legislature amended
section 3051 to provide relief for most offenders who committed their offenses
before reaching the age of 23. (Stats. 2015, ch. 471, § 1.) According to the
author of the amendment, ‘Recent scientific evidence on adolescent and young
adult development and neuroscience shows that certain areas of the brain—
particularly those affecting judgment and decision-making—do not fully
develop until the early-to-mid-20s. Various studies by researchers from
Stanford University (2009), University of Alberta (2011), and the National
Institute of Mental Health (2011) all confirm that the process of brain
development continues well beyond age 18.’ (Sen. Com. on Public Safety,
Analysis of Sen. Bill No. 261 (2015–2016 Reg. Sess.) Apr. 28, 2015, p. 3.)”
(In re Jones (2019) 42 Cal.App.5th 477, 484–485, conc. opn. of Pollak, J.)
And Assembly Bill No. 1308, which became law on January 1, 2018,
raised the age limit for eligibility for relief under the Youth Offender Statute
to age 25, doing so, in the words of the legislative history, because:
“ ‘AB 1308 would align public policy with scientific research. This measure
would expand eligibility of the youth parole hearing process to certain
individuals who were 25 or under when they committed a crime for which
they received a lengthy or life sentence for a youth offender parole hearing.
Scientific evidence on adolescence and young adult development and
neuroscience shows that certain areas of the brain, particularly those
23
affecting judgment and decision-making, do not develop until the early-to-
mid-20s. Research has shown that the prefrontal cortex doesn’t have nearly
the functional capacity at age 18 as it does at 25. The prefrontal cortex is
responsible for a variety of important functions of the brain including:
attention, complex planning, decision making, impulse control, logical
thinking, organized thinking, personality development, risk management,
and short-term memory. These functions are highly relevant to criminal
behavior and culpability. [¶] Since the passage of [Senate Bill No.] 260 and
[Senate Bill No.] 261 motivation to focus on rehabilitation has increased. An
offender is more likely to enroll in school, drop out of a gang, or participate in
positive programs if they can sit before a parole board sooner, if at all, and
have a chance of being released.’ ” (Assem. Com. on Public Safety, Analysis of
Assem. Bill No. 1308, as amended March 30, 2017 (2017–2018 Reg. Sess.)
Apr. 25, 2017, pp. 2–3.)
It is apparent from the lengthy quotation of the trial court’s ruling set
forth above that the court made no analysis whether the “interests of justice”
included any analysis of defendant’s age, or any factors relating to it. More
specifically, other than a passing reference to defendant’s age in connection
with the court’s prior Romero ruling over two years before—“my analysis
under Romero has not changed in light of Penal Code section 3051
referencing now someone under 25 their brains are not fully developed”—the
trial court never mentioned, let alone analyzed, the numerous factors Miller,
supra, 567 U.S. 460 identified as bearing on the “ ‘distinctive attributes of
youth’ and how these attributes ‘diminish[ed] the penological justifications
for imposing the harshest sentences . . . .’ ” (In re Kirchner (2017) 2 Cal.5th
1040, 1042.) This would include, for example, evaluation of the
circumstances pertaining to defendant’s “immaturity, impetuosity, and
24
failure to appreciate risks and consequences” at the time of his offense and to
“the family and home environment that surround[ed] [him]—and from which
he [may not have been able to] usually extricate himself—no matter how
brutal and or dysfunctional.” (Miller, supra, 567 U.S. at p. 477.)
In sum, it is clear the trial court did not analyze the situation “in
conformity with the spirit of the law and in a manner to subserve and not to
impede or defeat the ends of substantial justice. . . .” (Bailey v.
Taaffe, supra, 29 Cal. at p. 424.)11 And we remand again, so it can do so,
11 For example, in refusing to strike the enhancement, the trial court
stated it considered defendant’s “life as listed or described in the papers.”
The trial court observed that the event that preceded the shooting—
defendant being told to move out of the house—was not particularly
provocative but rather was “within the normal range of things we just have to
deal with in life,” and defendant’s response was “very, very dangerous.” As to
this “dangerous” comment, we note that all cases involving the possible
imposition of a firearm enhancement necessarily involve “dangerous” actions.
But the amendment to section 12022.53, subdivision (h)—permitting a trial
court to exercise its discretion in the imposition of a 25-year enhancement—is
a clear message to trial courts that the punishment is not appropriate in
every case, including an implied malice second degree murder conviction.
The court further noted that the firearm enhancement was designed to
punish this sort of behavior and was not disproportionate to the crime, but
did not consider its application to a person of defendant’s age and in
defendant’s circumstances, for whom the firearm enhancement, in light of the
rest of the sentence, would result in the denial of parole until age 79—
resulting in a sentence commonly called a “de facto LWOP.”
Moreover, although the trial court adverted to defendant’s “life as . . .
described in the papers,” and was aware that defendant had a history of
juvenile offenses, beginning when he was 13, the trial court did not consider
the implications of defendant’s age or the facts of his juvenile strike: a
robbery committed with other teenagers; no weapon was used; there was only
minimal injury; and defendant was neither the instigator nor the main
aggressor.
25
especially in light of the court’s comment that defendant was “not a lost
cause.”12
The Refusal to Stay the Minimum Restitution Fine was Not
Error
At defendant’s original sentencing in May 2016, the trial court imposed
the minimum restitution fine of $300. As noted, at the resentencing hearing
defendant belatedly contended he was entitled to have that restitution fine
stayed or, in the alternative, stricken, pending a hearing on his ability to pay.
The trial court rejected the argument, a rejection defendant appeals here.
As indicated above, the issue of ability was raised orally at the end of
the sentencing hearing was there, as it is here, based on People v. Dueñas,
supra, 30 Cal.App.5th 1157 (Dueñas). Dueñas involved the now familiar case
of Velia Dueñas, a homeless, indigent person who was on her fourth
12 At the time of defendant’s original sentencing—before it had the
legal discretion to not impose the 25-year firearm enhancement—the trial
court stated, “I do want to take note of the defendant’s letter, something that
is striking and worthy of note, where he writes, ‘since that is not the case’—
regarding he could have taken some time to reflect and none of this would
have happened—‘since that is not the case, I pray that my punishment gives
my victims’ family some type of closure for their loss. Also, in deciding my
punishment, I ask humbly that you are able to recognize and believe that I
am in no way a lost cause.’ ”
The trial court continued, “That’s worthy to note, and that’s certainly—
I recognize the sentence is what it is, but that is worth noting. I don’t think
anyone here, at this point, thinks you are a lost cause Mr. Ceballos. You
have other opportunities. I recognized the pain of this sentence, as well. But
you are not a lost cause, and, at least, I want you to know that before leaving
here today.”
At the time the trial court made these remarks about defendant not
being a “lost cause” at the age of 24, it was required to impose the firearm
enhancement. Our remand gives the trial court the opportunity to consider
this issue anew in light of all of the factors discussed in this opinion.
26
conviction for driving with a suspended license, placed on probation and, yet
again, ordered to pay mandatory assessments and fines, including a $150
restitution fine under section 1202.4, subdivision (c).13 The court held that
“although the trial court is required by Penal Code section 1202.4 to impose a
restitution fine, the court must stay the execution of the fine until and unless
the People demonstrate that the defendant has the ability to pay the fine.”
(Dueñas, supra, 30 Cal.App.5th at p. 1172.)
Dueñas has spawned a plethora of cases, many of which have
distinguished it on the facts before them, with many others holding that
Dueñas was wrongly decided, several of which cases are pending before the
Supreme Court. A relatively early case illustrating all this is the 2-1 opinion
in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019,
S257844 (Kopp), where the majority opinion analyzed the issue based on the
distinction between fines and charges that are punitive in nature and those
that are not. And as to the former, the majority held they should be
challenged under the excessive fines clauses in the United States and
California Constitutions. (Id. at pp. 96–97.)
A recent case along those lines is People v. Cowan (2020)
47 Cal.App.5th 32, review granted June 17, 2020, S261952, where our
colleagues in Division Four have a lengthy discussion of Dueñas and its
progeny, including a collection of “the Dueñas critics” (Cowan, supra,
13 Section 1202.4 provides that “[t]he court shall impose the restitution
fine unless it finds compelling and extraordinary reasons for not doing so and
states those reasons on the record. A defendant’s inability to pay shall not be
considered a compelling and extraordinary reason not to impose a restitution
fine. Inability to pay may be considered only in increasing the amount of the
restitution fine in excess of the minimum fine pursuant to paragraph (1) of
subdivision (b).”
27
47 Cal.App.5th at p. 39), and adopts the excessive fines approach. (Id. at p.
42.) We adopt this view, concluding that the approach taken in Kopp is
correct, where the court explained this distinction: “[W]e do not follow the
court’s approach to restitution fines in Dueñas. There, the court
acknowledged that the restitution fine under section 1202.4 is ‘additional
punishment for a crime.’ (Dueñas, supra, 30 Cal.App.5th at p. 1169.) Yet,
the court still focused solely on a defendant’s ability to pay in determining
whether such a punitive fine is constitutional. To this end, the court held:
‘[A]lthough Penal Code section 1202.4 bars consideration of a defendant’s
ability to pay unless the judge is considering increasing the fee over the
statutory minimum, the execution of any restitution fine imposed under this
statute must be stayed unless and until the trial court holds an ability to pay
hearing and concludes that the defendant has the present ability to pay the
restitution fine.’ (Dueñas, supra, 30 Cal.App.5th at p. 1164.) We disagree
that this approach should apply to all punitive fines in the first instance.
Instead, because these fines are intended to punish defendants, we agree
with the People that a defendant should challenge such fines under the
excessive fines clause of the Eighth Amendment of the federal Constitution
and Article I, section 17 of the California Constitution. Put differently, there
is no due process requirement that the court hold an ability to pay hearing
before imposing a punitive fine and only impose the fine if it determines the
defendant can afford to pay it.” (Kopp, supra, 38 Cal.App.5th at pp. 96–97.)
And so analyzed, the $300 minimum restitution fine imposed here is
not excessive. A fine is excessive under the Eighth Amendment “if it is
grossly disproportional to the gravity of a defendant’s offense” (United
States v. Bajakajian (1998) 524 U.S. 321, 334), an analysis made by
considering four factors: “ ‘(1) the defendant’s culpability; (2) the relationship
28
between the harm and the penalty; (3) the penalties imposed in similar
statutes; and (4) the defendant’s ability to pay.’ ” (People v. Aviles (2019)
39 Cal.App.5th 1055, 1070, citing People ex. rel. Lockyer v. R.J. Reynolds
Tobacco Co. (2005) 37 Cal.4th 707, 728.)
Here, defendant was convicted of second degree murder after he fired
eight shots through a closed door of a bedroom occupied by five people, killing
Troy in the presence of his son, for which defendant was sentenced to 55
years to life. In light of this, the $300 restitution fine—the minimum fine
provided for by statute—was minor when compared to his sentence and the
gravity of the offenses.
Finally, we note that even if the decision were error, it would have been
harmless error, because defendant will be in custody long enough to pay the
$300 in issue here. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)
Defendant was sentenced to a lengthy prison term of 55 years to life; at the
time of sentencing, he was 29 years old; and nothing in the record points to
any circumstance casting a doubt on his ability to obtain the funds for
payment in the future, future earnings, including prison wages, that are
relevant as a constitutional matter. (See People v. Aviles, supra,
39 Cal.App.5th at p. 1076; § 1202.4, subd. (d) [in considering a defendant’s
inability to pay as a factor in setting the amount of the fine in excess of the
minimum fine, “[c]onsideration of a defendant’s inability to pay may include
his or her future earning capacity”].)
The Petition Will Be Heard in the Superior Court
In response to defendant’s appeal and his petition for writ of habeas
corpus, the Attorney General has filed a combined respondent’s brief and
informal opposition to the petition. The opposition portion of the brief, which
is 25-pages long, argues that the petition should be summarily denied on the
29
basis it fails to allege a prima facie showing of ineffective assistance of
counsel. It also asserts “as a threshold matter” that it would be “appropriate
to deny the petition without prejudice to allow the lower court to weigh in on
the issues raised.”
In support, respondent cites the recent case of Robinson v. Lewis (2020)
9 Cal.5th 883, 895 (Robinson), where a unanimous Supreme Court observed
as follows: “All courts in California have original habeas corpus jurisdiction,
but that does not mean all courts must exercise it in all circumstances. A
higher court ‘has discretion to deny without prejudice a habeas corpus
petition that was not filed first in a proper lower court.’ [Citations.] For this
reason, the United States Supreme Court has observed that ‘California’s
habeas rules lead a prisoner ordinarily to file a petition in a lower court first.’
(Carey v. Saffold [(2002)] 536 U.S. [214,] 221.) We agree. Petitioners should
first file a petition for a writ of habeas corpus challenging a judgment in the
superior court that rendered the judgment. If the superior court denies the
petition, the petitioner may then file a new petition in the Court of Appeal.
[Fn. omitted.]”14
After citing Robinson, respondent’s brief goes on: “As the Court of
Appeal observed in Ex parte Elias, ‘particularly where the taking of evidence
is involved, the local court is often better able to render timely and effective
relief than a court of appeal, and it is for this reason that appellate courts
frequently refuse to issue the writ unless application has first been made
therefor to the superior court or unless a good reason is shown in the petition
for failure to have made such application.’ (Ex parte Elias (1962)
14The footnote noted an exception that a “petition for a writ of habeas
corpus may be filed in the Court of Appeal in the first instance if it is related
to a pending direct appeal.” (Robinson, supra, 9 Cal.5th at p. 895, fn. 5.)
30
209 Cal.App.2d 262, 264; see Rose v. Superior Court (2000) 81 Cal.App.4th
564, 574 [‘in the few petitions that require an evidentiary hearing, appellate
courts often transfer the petitions to the trial court’].) [Defendant’s] petition
relies on multiple factual allegations involving local practices pertaining to
negotiation of pleas that a trial court is better equipped to hear and
evaluate.”
In his reply brief and informal reply to respondent’s opposition,
defendant states he does not object to the petition being transferred to the
superior court, acknowledging respondent’s position that an “evidentiary
hearing will be necessary to resolve [defendant’s] claim.” Indeed it will,
certainly on his primary claim of ineffective assistance of counsel.
By way of illustration, defendant’s claim includes that prior to trial his
counsel failed to inform him that the prosecutor had stated his office would
consider a plea offer of guilt in exchange for a sentence of 17 or 18 years, if
the defense initiated the request. Defendant also contends that counsel
failed to advise him that even if his defense of involuntary manslaughter
were successful, he would face a sentence of 18 years based on his prior strike
offense and the gun enhancement. Moreover, defendant attaches a
declaration from trial counsel Robin Keeney, who among other things
testifies that he has “a vague memory” of his conversation with defendant,
and at another point testifies that his doctor told him his “cognition and
memory are impaired.” This, of course, raises fact-intensive questions as to
Mr. Keeney’s cognitive function in 2015 when defendant’s trial was held.
Defendant’s claim would also include evidence as to the process and
procedures of the district attorney’s office in 2014 and 2015, as well as the
particular position of the office in his case. Indeed, Ms. Kelly acknowledges
31
as much, testifying as to her attempt to contact the particular deputy district
attorney involved in defendant’s case, and receiving no response.15
DISPOSITION
The matter is remanded to the superior court to exercise its discretion
in light of all applicable principles. The restitution fine is affirmed. And as
to the petition for writ of habeas corpus, as set forth in a separate order filed
today, an order to show cause will issue returnable in the superior court.
15 The deputy district attorney is now a superior court judge.
32
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Miller, J.
People v. Ceballos (A158314)
33