Filed 1/9/20 P. v. Williams CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

SAFFARR WILLIAMS,

Defendant and Appellant.

D075947

(Super. Ct. No. 16CR061841)

APPEAL from a judgment of the Superior Court of San Bernardino County, Cara D. Huston, Judge. Affirmed and remanded for further proceedings.

Christopher Allan Nalls, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew C. Mulford, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Saffarr Williams of one count of street terrorism (Pen. Code, § 186.22, subd. (a)) and two counts each of first degree robbery (§§ 211, 215.5, subd. (a)), carjacking (§ 215, subd. (a)), assault with a firearm (§ 245, subd. (a)(2)), and making criminal threats (§ 422, subd. (a)), with attendant enhancements. The trial court sentenced Williams to an indeterminate prison term of 60 years to life, consisting of consecutive terms of 15 years to life for the two robberies and carjackings, with sentence on the remaining counts and enhancements stayed under section 654.

Williams appeals, contending: (1) his confession should have been suppressed because it was the direct fruit of an illegal arrest; (2) the trial court erred in failing to declare a mistrial after the prosecution’s gang expert testified that Williams committed the crimes and the jury was not admonished about the improper testimony until after a long weekend; (3) the sentences for carjacking should have been stayed under section 654; (4) the trial court erroneously imposed sentence for five firearm enhancements found not true by the jury; and (5) the court should remand pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin) to make a record of youth-related mitigating factors because he was 18 years old at the time of the offenses.

We conclude that the trial court erroneously imposed sentence for five firearm enhancements found not true by the jury and remand the matter to correct this error. We also remand to allow Williams the opportunity to file a motion under section 1203.01 for the purpose of making a record of mitigating youth-related evidence. (In re Cook (2019) 7 Cal.5th 439, 446-447 (Cook).) Accordingly, we affirm the judgment without prejudice to Williams filing a motion ” ‘for a Franklin proceeding under the authority of section 1203.01′ and Cook.” (People v. Medrano (2019) 40 Cal.App.5th 961, 968 (Medrano).)

FACTUAL BACKGROUND

The Crimes

In the evening of October 29, 2016, Dr. and Mrs. J. (together, the victims) were at home in the town of Apple Valley when, sometime between 7:30 and 8:00 p.m., they heard a bang as the front door flung open and four African-American men wearing dark clothing entered their house. One man had a stocking over his entire face, two each had a bandana over the bottom half of his face, and one man’s face was uncovered. Two of the men carried handguns.

The men demanded “diamonds and gold” and hit the victims. Two of the men ransacked the house, while the other two guarded the victims. The robbers moved the victims to the master bedroom and demanded jewelry and valuables. Mrs. J. estimated that she was with robbers in the master bedroom for about 20 minutes when they moved her and Dr. J. to the family room. While the victims were lying on the floor, the “short” robber hit both of them in the head with his gun. Dr. J. described two of the men as taller and two as shorter. The man with the uncovered face carried a gun and was one of the shorter men. The victims could not describe the second robber who also carried a gun. Clark is 6′ 4″; Garrett is 6′ 2″; Williams is 5′ 8″; and Harmon is 5′ 5″.

The short robber also held the gun to Dr. J.’s forehead and threatened to shoot him. Dr. J. thought he was going to die. The robbers then discussed taking Dr. J. to the bank to get more money. Scared for her life and her husband’s life, Mrs. J. told the robbers to take their cars, a Mercedes Benz and a Prius.

The men decided to take the Mercedes and loaded the car with a television, computers, and other small electronics. The men also took jewelry, cash and the victims’ cell phones. They told the victims not to call the police, that they would wait at the top of the road and return to kill them if they heard sirens. The victims went to a neighbor’s home and called the police. Dr. J. told a responding officer that the stolen Mercedes had a tracking device.

Williams’s Initial Arrest

The tracking device on the Mercedes led law enforcement to a particular house in Victorville. Officers responded to that location, arriving at around 9:05 p.m. The victims’ Mercedes was parked in front of the house, next to a BMW. There were at least four men standing around the trunk of the Mercedes. The men ran when they saw the law enforcement officers. Officers found Williams on the ground in some bushes. The victims’ cell phones were underneath Williams and he had some of the victims’ jewelry in his pocket.

Officers also found Garrett on the porch of a nearby house with the keys to the victims’ Mercedes in his pocket. Clark surrendered to deputies and officers found Harmon hiding in the attic of the house. The Mercedes contained items stolen from the victims’ house. The back seat of the BMW also contained the victims’ property, including their television.

The victims could not identify Williams, Garrett, Clark or Harmon as one of the robbers. Officers arrested Williams and Garrett for receiving stolen property. The men were released from custody a day or two later. Harmon was booked on a charge of possessing marijuana for sale. Clark was not booked.

Detective Jonathan Andersen, the lead investigator, interviewed Williams after his initial arrest. After being read his Miranda rights, Williams claimed that his girlfriend took him to Clark’s residence to purchase marijuana. The girlfriend went inside while he waited in the car. Williams called his cousin, Garrett, to the location to assist in resolving a problem with the transaction. The girlfriend gave Williams two cell phones and told him that he would not get his money back. Law enforcement then arrived, and everyone scattered.

Although Williams denied any involvement in the robbery, Detective Andersen continued his investigation. This investigation revealed Garrett’s and Harmon’s fingerprints on the victims’ stolen television in the BMW. Additionally, the owner of the BMW, Garrett and Williams’s uncle, stated that Williams and Garrett took the BMW without his permission while he was out of town.

Williams’s Second Arrest

On November 4, 2016, sheriff’s deputies executed a search warrant for an apartment in Apple Valley where Garrett lived. When deputies arrived, Garrett was home with his girlfriend. Also in the apartment were Williams, Williams’s mother, and a few small children. Once Detective Andersen learned of Williams’s presence at the residence, he directed deputies to bring Williams and Garrett to the police station for questioning.

Although they had no warrant for Williams’s arrest, Williams was handcuffed and transported to the Apple Valley Station for questioning. Williams waited in a conference room with a detective for 60 to 90 minutes for an interview room. Williams was then taken to an interview room and interviewed by two detectives.

Williams, 18 years old at the time, acknowledged that he understood his Miranda rights. Williams claimed that he and his girlfriend had gone in her car, a red or burgundy Camry, to Clark’s house to purchase marijuana. When Williams complained about the marijuana, Clark gave them two cell phones and keys to a Mercedes. Williams claimed that he ran when law enforcement arrived because everyone else ran. He denied taking part in a robbery. The detectives accused Williams of lying and claimed that he had participated in the robbery. Williams ultimately admitted being at the scene of the robbery with Garrett, Clark and Harmon. He also admitted taking two cell phones and some jewelry.

DISCUSSION

I. Suppression Motion

Williams moved to suppress the statements he made to police after his second arrest, arguing probable cause did not support the arrest and his statements to police were involuntary. He further argued that the Miranda warnings he received did not purge the taint of the illegal arrest, making his statements inadmissible. The trial court denied the motions after a lengthy hearing, finding Williams’s statements were voluntary and probable cause existed for the arrest.

On appeal, Williams argues that probable cause did not exist for his second arrest, making the statements he made at the police station inadmissible. The People disagree, asserting the trial court properly found that sheriff’s deputies learned new information after Williams’s initial release that provided probable cause for his second arrest such that his confession was lawfully used against him. Even assuming the trial court erred in the probable cause ruling, the People contend that Williams’s voluntary choice to speak with detectives sufficiently attenuated any taint that stemmed from an illegal arrest. We conclude probable cause existed for Williams’s second arrest. Accordingly, we need not address the People’s alternative argument that Williams’s confession dissipated any taint from the assumed illegality of the second arrest. (See People v. Boyer (2006) 38 Cal.4th 412, 448-449.)

“When the seizure of a person amounts to an arrest, it must be supported by an arrest warrant or by probable cause. [Citation.] Probable cause exists when the facts known to the arresting officer would persuade someone of ‘reasonable caution’ that the person to be arrested has committed a crime. [Citation.] ‘[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts. . . .’ [Citation.] It is incapable of precise definition. [Citation.]. ‘ “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,” ‘ and that belief must be ‘particularized with respect to the person to be . . . seized.’ ” (People v. Celis (2004) 33 Cal.4th 667, 673 (Celis).) In reviewing the trial court’s ruling on the motion to suppress, “we defer to the trial court’s factual findings, but we independently apply the requisite legal standard to the facts presented.” (Id. at p. 679.)

In this case, the victims stated that four African-American men committed the robbery and took their Mercedes. The 911 call came in at 8:15 p.m. Police arrived at the victims’ home at about 8:20 p.m. That same night, law enforcement found the victims’ stolen Mercedes, at about 9:00 p.m., with four African-American individuals standing near the trunk. The four men ran when law enforcement arrived. The four men were later identified as Williams, Garrett, Clark and Harmon. A sheriff’s deputy found Williams hiding in some bushes with the victims’ cell phones and some of their jewelry.

Near the Mercedes was a BMW with a backseat packed “completely full” of the victims’ stolen property. Detective Andersen “believed that the [BMW] was involved [in the robbery] due to the amount of property located in there. And the time frame would not have allowed the movement of property out of that car into another car or vice versa.” Deputies collected fingerprints from some of the stolen items.

At this time, Detective Andersen arguably had probable cause to arrest Williams for the home invasion robbery. Critically, Williams possessed stolen property less than an hour after the robbery. Our high court has recognized that ” ‘[p]ossession of recently stolen property is so incriminating that to warrant conviction [for robbery] there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt.’ ” (People v. Grimes (2016) 1 Cal.5th 698, 731.) This corroboration existed as Williams displayed a consciousness of guilty by running when law enforcement arrived. (Cf. People v. Garrison (1989) 47 Cal.3d 746, 773 [“evidence of flight supports an inference of consciousness of guilt and constitutes an implied admission which may properly be considered as corroborative of an accomplice’s testimony”].) Finally, Williams’s explanation for his presence with Garrett at Clark’s residence less than an hour after the robbery strained credulity. Detective Andersen acted cautiously by only arresting Williams for possessing stolen property while continuing his investigation.

The additional investigation tied Garrett and Harmon to the robbery, tied Williams to Garrett, and tied Garrett and Harmon to the BMW. Specifically, Detective Andersen discovered that the owner of the BMW was Garrett and Williams’s uncle, who said that he was out of town when Williams and Garrett took the BMW, without his permission, at some point in time within four days before the home invasion robbery. He also learned that Garrett’s and Harmon’s fingerprints were on the victims’ stolen television in the BMW. This information connected Williams to the BMW, and to Garrett on the night of the robbery. The condition of the BMW on the night of the robbery, packed full of the victims’ possessions, also suggested that Williams was present during the robbery because there was not enough time after the report of the robbery and the finding of the Mercedes and BMW for the robbers to have loaded all the victims’ stolen property into the BMW.

This new information, combined with the information already in Detective Andersen’s possession, was sufficient for a person of ” ‘reasonable caution’ ” to believe that Williams was one of the persons who committed the robbery. (Celis, supra, 33 Cal.4th at p. 673.) Using our independent judgment, we conclude that law enforcement had probable cause to arrest Williams for the robbery and other crimes. Thus, the trial court properly denied Williams’s motions to suppress the statements he made after this arrest.

II. Denial of Mistrial Motion

A. Additional Background

Hustla Squad Clicc is a criminal street gang that is “very big into burglaries and robberies and possession of firearms.” Garrett and Clark were Hustla Squad Clicc gang members. The prosecution’s gang expert had no opinion whether Harmon belonged to this gang. The prosecution’s gang expert also testified about a social-network account with Williams’s picture, the name “Yung Boy Late,” and photographs of Williams displaying a black H, hand signs, and slang terms for Rialto locations associated with Hustla Squad Clicc. The expert testified generally about how individuals join gangs, gang monikers, gang hierarchy, the importance of reputation and respect to a gang, and gang territory. He then testified specifically about the Hustla Squad Clicc gang, including crimes committed by this gang. The expert ultimately opined that Williams was an active Hustla Squad Clicc gang member. When asked for the basis of this opinion, the expert testified:

“That [Williams] actively participated in a criminal offense to further, promote, or benefit the Hustla Squad Clicc. And he also committed—if the facts alleged are found to be true, that he committed this crime in conjunction with other documented known gang members from Hustla Squad Clicc”

Defense counsel immediately asked to approach the bench. At this point. the trial court excused the jury for the weekend. Defense counsel moved for a mistrial because the expert had improperly testified that Williams committed the offenses. The trial court agreed that the expert had testified as to Williams’s guilt, but denied the mistrial and stated that it would admonish the jury about the expert’s opinion.

The next court day, which was three days after this testimony, the trial court stated that it had reviewed the court reporter’s notes and found that the expert inappropriately testified that Williams committed this crime and then tried to backtrack and “gave a conditional, if he did this crime.” The court admonished the jury, as follows:

“[T]o disregard the last question, which dealt with the basis for the expert—the expert’s opinion as to the gang enhancement. I want to further caution you, that the only party that is to deliberate about the guilt or innocence of Mr. Williams is you. There is no witness. There is no judge. There is no attorney who can tell you what to do. The only party to decide beyond a reasonable doubt as to whether Mr. Williams is innocent or guilty is the jury. So I’m going to read a couple of instructions to you, just to bring this home.”

The count then read CALCRIM Nos. 332 and 103, which pertained, respectively, to evaluating expert witness testimony and reasonable doubt.

B. Analysis

Williams asserts that the trial court erred in not declaring a mistrial because the prejudice from the expert’s testimony could not be cured by instruction or jury admonition. Williams admits that the trial court’s admonishment “was thorough” but claims waiting three days to give the admonition made the prejudice incurable.

The trial court should grant a mistrial if it ” ‘is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) While the volunteered statement of a witness can sometimes provide the basis for a finding of incurable prejudice (People v. Ledesma (2006) 39 Cal.4th 641, 683), the improper subject matter will rarely be ” ‘of such a character that its effect . . . cannot be removed by the court’s admonitions.’ ” (People v. Allen (1978) 77 Cal.App.3d 924, 935 (Allen).) We review the denial of a mistrial motion for an abuse of discretion. (People v. Welch (1999) 20 Cal.4th 701, 749.) Unless the trial court’s ruling is “arbitrary, capricious or patently absurd,” we will not disturb it on appeal. (People v. Jordan (1986) 42 Cal.3d 308, 316.)

Williams notes that the court’s admonishment “was thorough” and does not suggest what more the trial court could have done to admonish the jury. His primary complaint is the delay in giving the admonishment, claiming that the jury had three days to “absorb[]” the officer’s opinion.

As a preliminary matter, defense counsel forfeited any challenge to the timing of the admonishment by failing to object to discharging the jury for the long weekend before arguing his motion at sidebar. (People v. Saunders (1993) 5 Cal.4th 580, 590 [” ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation]’ “].) The court discharged the jury at 4:25 p.m. and heard argument from counsel until 4:37 p.m. Although the objectionable testimony came close to the end of the court day, the trial court could have given an admonishment and still discharged the jury in a timely fashion had defense counsel objected to the discharge of the jury.

Even assuming the issue is not forfeited, “[t]he crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.” (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) “[W]e presume jurors can ‘unring the bell’ and follow admonishments and instructions designed to cure a trial court error.” (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.) Here, the court’s admonishment informed jurors that only they could decide guilt or innocence, they must decide the believability of expert testimony, Williams is presumed innocent, and the People must prove his guilt beyond a reasonable doubt. The trial court repeated these instructions before closing argument. Additionally, before the start of trial, the court instructed jurors that they must “[k]eep an open mind” and not decide an issue until after discussing the case with other jurors.

Nothing in the record suggests the jury did not follow these instructions. Nor has Williams convinced us that the alleged prejudice was of such exceptional character that its effect could not be undone by curative instructions. (Allen, supra, 77 Cal.App.3d at p. 935; People v. Wharton (1991) 53 Cal.3d 522, 566 [“Although defendant argues the admonishment was disregarded by the jury because the inadvertent statement was made on a Thursday and the admonition did not come until the following Monday, this is mere speculation.”].) On this record, the trial court did not abuse its discretion in denying Williams’s mistrial motion. Having found no reversible error under state law, we also reject Williams’s related constitutional claims. (See People v. Abilez (2007) 41 Cal.4th 472, 503.)

III. Section 654

A. Additional Background

In his sentencing brief, Williams asserted that his sentence for all counts but one should be stayed under section 654 because his criminal actions were pursuant to one indivisible course of conduct. At sentencing, defense counsel focused on the robbery and carjacking counts, arguing that these actions were essentially the same because the victims’ car was merely another item stolen during the robbery. The trial court stayed sentence for counts 5 through 9 under section 654, but declined to do so for the carjacking counts, stating:

“We have a robbery, and then we have a carjacking. I don’t see that as the same act. This may be wrong, and it may come back, but the Court is finding that the carjacking may be punished consecutively because we don’t have a single act. Here we have two different acts in this crime. So over defense’s objection, the Court is going to find these are two separate and distinct acts.”

B. Analysis

Williams contends that the court erred by imposing consecutive terms for the robbery convictions (counts 1 and 2) and carjacking convictions (count 3 and 4) because all crimes were part of the same course of conduct. We disagree.

Section 654 is intended to ensure that the defendant is punished commensurate with his or her culpability. (People v. Harrison (1989) 48 Cal.3d 321, 335.) The defendant’s intent and objective, not the temporal proximity of his or her offenses, determines whether multiple punishment is permissible. (Ibid.) When section 654 prohibits multiple punishments, the trial court must stay execution of sentence on the convictions that implicate multiple punishments. (People v. Correa (2012) 54 Cal.4th 331, 337.)

“Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ‘ “intent and objective’ ‘ or multiple intents and objectives. [Citations.] At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act. [Citation.] When those facts are undisputed . . . the application of section 654 raises a question of law we review de novo.” (People v. Corpening (2016) 2 Cal.5th 307, 311-312 (Corpening).)

If the pertinent facts are in dispute, “[i]ntent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense.” (People v. Jackson (2016) 1 Cal.5th 269, 354.) The court’s implicit or express determination in that respect will be upheld on appeal if supported by substantial evidence. (People v. Lopez (2011) 198 Cal.App.4th 698, 717.) We ” ‘ “presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence.” ‘ ” (Ibid.)

“We first consider if the different crimes were completed by a ‘single physical act.’ ” (Corpening, supra, 2 Cal.5th at p. 311.) Williams concedes that the robbery and carjacking were separate acts, but contends the acts comprised an indivisible course of conduct. We agree that this case involves a course of conduct, rather than a single physical act. Accordingly, we next “consider whether that course of conduct reflects a single ‘ “intent and objective” ‘ or multiple intents and objectives.” (Ibid.)

The trial court impliedly found that Williams’s course of conduct reflected multiple intents and objectives. We conclude that the record supports this determination. “[C]arjacking is a crime of violence, distinct from robbery, and not merely a violation of the victims’ property interest in their motor vehicle. It is also, of course, distinct from home invasion robbery because it involves the taking of a motor vehicle from the victims’ persons or immediate presence.” (People v. Capistrano (2014) 59 Cal.4th 830, 887 (Capistrano), overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 103-104.)

Here, Mrs. J. suggested during the robbery that the robbers take the victims’ cars to prevent the men from taking Dr. J. to the bank. At this point, the initial intent and objective of taking cash, jewelry and household items changed to taking a motor vehicle from the victims’ immediate presence. Nothing in the record suggests that the robbers knew about the victim’s vehicles, or had any interest in them, when they invaded the home. Rather, when Mrs. J suggested taking the vehicles, the robbers formulated the plan to take a vehicle to facilitate their get-away. The four robbers came to the victim’s home in the BMW. During the course of the robbery, they completely filled the backseat of the BMW with items stolen from the inside of the victim’s home, leaving no room for two of the robbers. On this record, the trial court reasonably concluded that the intent of the robbers changed from stealing household items to carjacking to facilitate their get-away.

Because Williams “harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ ” (People v. Harrison, supra, 48 Cal.3d 321 at p. 335.) Accordingly, the trial court properly imposed consecutive terms for robbery and carjacking.

IV. Gun Enhancements

For counts 5 through 9 the jury found not true the personal use of a firearm allegations connected with these counts. (§ 12022.5, subd. (a).) Williams contends, and the People concede, that the trial court erroneously imposed and stayed sentences for these enhancements. We agree that the court must amend the sentencing minutes and the abstract of judgment to correct these errors.

V. Youth Offender Parole Hearing

Williams contends he is entitled to a limited remand under Franklin, supra, 63 Cal.4th 261 and section 3051 to ensure he has a meaningful opportunity to present relevant mitigating evidence for use in a future youthful offender parole hearing. The People note that the sentencing hearing occurred in December 2017, more than a year after the decision in Franklin and nearly two years after section 3051 was amended and made applicable to 18-year-old offenders. The People argue that Williams had the opportunity to present youth-related mitigating evidence at his sentencing hearing and his failure to so forfeited his opportunity to present this type of mitigating evidence.

In Miller v. Alabama (2012) 567 U.S. 460, 474, the United States Supreme Court “held that a state may not require a sentencing authority to impose [life without parole] on juvenile homicide offenders; the sentencing authority must have individualized discretion to impose a less severe sentence and, in exercising that discretion, must take into account a wide array of youth-related mitigating factors.” (Franklin, supra, 63 Cal.4th at p. 275.) In Franklin, the California Supreme Court held Miller applies to sentences that are the functional equivalent of life without parole. (Franklin, at p. 276.)

The Franklin court also held that section 3051, which became effective January 1, 2014, has effectively mooted Miller’s Eighth Amendment claims by providing “all juvenile offenders with a parole hearing during or before their 25th year of incarceration.” (Franklin, supra, 63 Cal.4th at pp. 276, 278.) Under section 3051, a person convicted of a controlling offense committed when the person was 25 years of age or younger and for which the sentence is a life term of 25 years to life is eligible for release on parole during his or her 25th year of incarceration at a youth offender parole hearing. (§ 3051, subd. (b)(3).) At this hearing, the Board “shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” (§ 4801, subd. (c).) Finding the defendant had not had sufficient opportunity to put forward information that would be deemed relevant at a later youth offender parole hearing, the Franklin court remanded “the matter to the trial court for a determination of whether [the juvenile] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing” because it was “not clear” whether the juvenile had been afforded such an opportunity previously. (Id. at p. 284.)

Here, Williams was under the age of 25 at the time of his offense and will therefore have a youthful offender parole hearing. Although defense counsel prepared a sentencing memorandum, he presented no information pertaining to Williams’s characteristics and circumstances as contemplated by sections 3051 and 4801. The probation report is devoid of any information relevant to a future youth offender parole hearing. At the sentencing hearing, defense counsel did not present any evidence concerning Williams’s level of maturity, cognitive ability, or other youth-related factors. Nor did the parties or the trial court mention the future youth offender parole hearing.

Our colleagues in the Fourth District, Division 2 addressed this issue in Medrano, supra, 40 Cal.App.4th 961. The Medrano court concluded that where, as here, “[t]he record does not indicate that [the juvenile’s] opportunity to exercise th[e] right [to present mitigating youth-related evidence at sentencing] was inadequate in any respect,” the appropriate remedy is to “affirm without prejudice to [the juvenile’s] filing a motion ‘for a Franklin proceeding under the authority of section 1203.01’ and Cook[, supra, 7 Cal.5th 439].” (Medrano, at p. 967.) We agree with the Medrano analysis and remand the matter to the trial court to give Williams the opportunity to file a motion for a Franklin proceeding.

DISPOSITION

The judgment is affirmed. The matter is remanded for the limited purpose of (1) amending the sentencing minutes and abstract of judgment to remove the sentences imposed on the personal use of a firearm allegations (§ 12022.5, subd. (a)) connected to counts 5 through 9; and (2) give Williams the opportunity to file a motion for a Franklin proceeding under section 1203.01 and Cook, supra, 7 Cal.5th at page 460. The trial court is directed to amend the abstract of judgment accordingly and to forward a certified copy to the Department of Corrections and Rehabilitation.

HALLER, Acting P. J.

WE CONCUR:

AARON, J.

DATO, J.