Filed 1/22/20 P. v. Mora CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

OSCAR MORA,

Defendant and Appellant.

B291119

(Los Angeles County

Super. Ct. No. BA038320)

APPEAL from an order of the Superior Court of Los Angeles County, Craig E. Veals, Judge. Appeal dismissed, order to show cause and writ of mandate issued.

Kelly C. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, Blythe J. Leszkay, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

In 1991, when Oscar Mora was 16 years old, a jury convicted him on three counts of murder and one count of attempted murder. The court sentenced Mora to three terms of life imprisonment without the possibility of parole and one term of life imprisonment with the possibility of parole.

In 2015 Mora filed a petition for writ of habeas corpus seeking resentencing under Miller v. Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455] (Miller) and a petition for recall of his sentence and resentencing under Penal Code section 1170, subdivision (d)(2). Mora alleged in his habeas petition that his sentence was cruel and unusual punishment and in his petition under section 1170, subdivision (d)(2), that he had made progress toward rehabilitation and deserved to have the court recall his sentence and resentence him. The trial court denied Mora’s habeas petition, ruling section 3051 mooted it. The court did not rule on Mora’s petition under section 1170, subdivision (d)(2). Mora appealed.

The denial of a petition for writ of habeas corpus is not appealable. Nevertheless, in the interest of judicial economy, we exercise our discretion to treat Mora’s appeal from the order denying his habeas petition as an original petition. We dismiss the appeal and issue an order to show cause returnable in the superior court for the trial court to decide the habeas petition on the merits. We also treat Mora’s appeal regarding the petition under section 1170, subdivision (d)(2), as a petition for writ of mandate and direct the trial court to rule on that petition as well.

FACTUAL AND PROCEDURAL HISTORY

A. Mora Commits a Triple Homicide as a Juvenile

One evening in 1991 Mora, then a 16-year-old member of a criminal street gang, encountered members of a rival gang at a gas station and fired his gun at the group. (People v. Mora (Feb. 16, 1994, B070074) [nonpub. opn.].) Mora killed three people and seriously injured another.

The People charged Mora as an adult. The jury found Mora guilty on three counts of murder and one count of attempted murder and found true a multiple murder special circumstance allegation and various sentence enhancement allegations. The trial court sentenced Mora to three consecutive terms of life in prison without the possibility of parole under section 190.5, subdivision (b), one consecutive term of life in prison with the possibility of parole, plus eight years for the enhancements. Mora appealed, we affirmed, and the Supreme Court denied review. (People v. Mora (May 26, 1994, S038934).)

B. The Law Changes for Juveniles Serving Lengthy Prison Sentences

When the trial court sentenced Mora, section 190.5, subdivision (b), provided the sentence for a 16- or 17-year-old juvenile convicted of first degree murder with one or more special circumstances was “confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.” California courts had interpreted section 190.5, subdivision (b), to authorize “a presumptive penalty of [life without the possibility of parole] for a 16- or 17-year-old special circumstances murderer.” (People v. Guinn (1994) 28 Cal.App.4th 1130, 1145, disapproved in People v. Gutierrez (2014) 58 Cal.4th 1354, 1371 (Gutierrez).)

In 2012 the United States Supreme Court held in Miller, supra, 567 U.S. 460 that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” (Id. at p. 465.) The United States Supreme Court held sentencing courts should consider the following factors before imposing a sentence of life without the possibility of parole: (1) the “chronological age” of the youth offender and the “hallmark features” of youth, including “immaturity, impetuosity, and failure to appreciate risks and consequences”; (2) the “family and home environment” that surrounded the youth and “from which he cannot usually extricate himself”; (3) “the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him”; (4) the evidence or information in the record regarding whether the offender might have been charged or convicted of a lesser offense but for the “incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys”; and (5) “the possibility of rehabilitation.” (Id. at pp. 477-478, 483; see In re Kirchner (2017) 2 Cal.5th 1040, 1043; Gutierrez, supra, 58 Cal.4th at pp. 1388-1389.)

In 2013 the Legislature enacted Senate Bill No. 260 in response to the United States Supreme Court’s decision in Miller and two other cases that addressed the sentencing of juvenile offenders. (See In re Trejo (2017) 10 Cal.App.5th 972, 980.) Senate Bill No. 260 added section 3051, which gave juvenile offenders a parole hearing after the juvenile offender had served 15, 20, or 25 years of his or her sentence, depending on the sentence the offender was serving. (Stats. 2013, ch. 312, § 4.) Senate Bill No. 260 also amended section 3046 by adding a provision requiring the Board of Parole Hearings to grant parole to youth offenders found eligible for parole under section 3051 “regardless of the manner in which the board set[s] release dates pursuant to subdivision (a) of Section 3041.” (Stats. 2013, ch. 312, § 3.) Finally, the Legislature amended section 4801 by adding a provision requiring the Board, in reviewing an inmate’s suitability for parole, to “give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” (Stats. 2013, ch. 312, § 5.) The Legislature stated: “The purpose of this act is to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity . . . . ” (Stats. 2013, ch. 312, § 1; see In re Williams (2018) 24 Cal.App.5th 794, 798.)

The Legislature, however, excluded from relief under section 3051 certain juvenile offenders who were serving a sentence of life without the possibility of parole, as well as juvenile offenders who had been sentenced under the three strikes law or the “one strike” sex offender law. The new statute stated: “This section shall not apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or 667.61, or in which an individual was sentenced to life in prison without the possibility of parole.” In addition, the Legislature excluded “an individual to whom this section would otherwise apply, but who, subsequent to attaining 18 years of age, commits an additional crime for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison.” (Stats. 2013, ch. 312, § 4; see People v. Franklin (2016) 63 Cal.4th 261, 278 (Franklin).)

C. Mora Files a Habeas Petition Under Miller and a Petition for Recall of His Sentence Under Section 1170, Subdivision (d)(2)

In 2015, 24 years after his murder and attempted murder convictions, Mora filed a petition for writ of habeas corpus, arguing his prison sentence of life without the possibility of parole violated the Eighth Amendment to the United States Constitution under Miller, supra, 567 U.S. 460 and Gutierrez, supra, 58 Cal.4th 1354. Mora also filed a petition under section 1170, subdivision (d)(2), asking the trial court to recall his sentence and resentence him under that provision. On March 3, 2017 the People filed an opposition to Mora’s request for resentencing and submitted evidence that in 2008, when Mora was 34 years old, he was convicted of possessing a weapon in prison, in violation of section 4502, for which the court imposed a “term of 25 years to life, pursuant to [section] 1170.12[, subdivision] (c).”

D. The Law Changes Again

While Mora’s petitions for resentencing (the petition for writ of habeas corpus and the petition for recall of his sentence under section 1170, subdivision (d)(2)) were pending, the California Supreme Court decided Franklin, supra, 63 Cal.4th 261, which held the “Legislature’s enactment of Senate Bill No. 260 [codified as section 3051] has rendered moot [the defendant’s] challenge to his original sentence under Miller.” (Franklin, at p. 280.) The California Supreme Court explained, “Apart from the categories of offenders expressly excluded by the statute, section 3051 provides all juvenile offenders with a parole hearing during or before their 25th year of incarceration.” (Franklin, at p. 278.) The Court concluded this meant the defendant “is now serving a life sentence that includes a meaningful opportunity for release,” and therefore “no Miller claim arises here.” (Id. at pp. 279-280.)

One year after the California Supreme Court’s decision in Franklin, the Legislature enacted Senate Bill No. 394, effective January 2018, to make juvenile offenders sentenced to life without the possibility of parole eligible for relief under section 3051. The Legislature added subdivision (b)(4) to section 3051: “A person who was convicted of a controlling offense[ ] that was committed before the person had attained 18 years of age and for which the sentence is life without the possibility of parole shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing . . . .” (§ 3051, subd. (b)(4); see Stats. 2017, ch. 684, § 1; People v. Lozano (2017) 16 Cal.App.5th 1286, 1288.)

Senate Bill No. 394 also amended section 3051, subdivision (h), which had denied relief to juvenile offenders sentenced to life without the possibility of parole, to read, in relevant part, “This section shall not apply . . . to cases in which an individual is sentenced to life in prison without the possibility of parole for a controlling offense that was committed after the person had attained 18 years of age.” (Stats. 2017, ch. 684, § 1.) Senate Bill No. 394 also raised the age after which a juvenile offender who committed a disqualifying crime would be ineligible for a youth parole board hearing. The Legislature did not change any of the other factors that would make a juvenile offender ineligible for a parole hearing under section 3051, subdivision (h). (See § 3051, subd. (h).)

E. The Trial Court Rules and Fails To Rule

Before the trial court ruled on Mora’s two petitions for resentencing, the parties appeared in court several times to discuss the issues raised by the petitions. Counsel for Mora repeatedly emphasized there were two separate petitions pending before the court, each asserting a different legal basis for resentencing Mora on the crimes he committed as a juvenile.

The court asked for argument on the factors for determining Mora’s eligibility for resentencing under section 1170, subdivision (d)(2). To show Mora qualified for resentencing under section 1170, subdivision (d)(2), counsel for Mora summarized Mora’s family background, upbringing, disciplinary record in prison, and efforts toward rehabilitation. Counsel for Mora also presented evidence of the “cult-like” gang influences in the neighborhood where Mora grew up, evidence of the delayed development of the adolescent brain, and the testimony of a psychiatrist who stated Mora “does not fall within the group” of offenders “who can never be rehabilitated.” The prosecutor, on the other hand, argued Mora “has shown that he is a danger to society and will continue to be one.” Relatives of Mora’s victims testified about their loss and argued against resentencing Mora.

The prosecutor informed the court that, in light of the passage of Senate Bill No. 394 and “the rewriting of [section 3051] by the Legislature last year,” the People were withdrawing a prior stipulation that Mora was entitled to resentencing. Counsel for Mora argued that section 3051 did not have “any effect on the statutory scheme” under section 1170, subdivision (d)(2), and that Mora “does qualify for [relief under] Miller because he doesn’t qualify for the protections under [section] 3051.”

The trial court issued a document titled “Tentative Order Re Habeas Petition.” In this tentative ruling, the court described the 2017 amendment to section 3051, which allowed juvenile offenders sentenced to life imprisonment without the possibility of parole to have a youth offender parole hearing. The court stated: “With the advent of this statutory addition, which effectively eliminates [life without the possibility of parole] commitments retroactively for juveniles in California by operation of law, [Mora] will receive the individualized consideration of his circumstances at a youth offender parole hearing. . . . As such, [Mora’s] claim for relief is rendered moot as there is no necessity that he be resentenced to life imprisonment with parole for him to receive the benefits of this change in the law. The petition is denied.”

Counsel for Mora maintained “the hearing should go forward.” Counsel argued Mora received a “life sentence” of 25 years to life after Mora turned 26 years old for having “a shank,” which disqualified him from relief under section 3051. Counsel for Mora explained that Mora’s 2008 conviction for possessing a weapon in prison when he was 34 years old was “preventing [Mora] from youthful offender parole consideration” on his 1991 convictions for murder and attempted murder when he was 16 years old. Counsel for Mora also argued the petition for resentencing under section 1170, subdivision (d)(2), “hasn’t been mooted out by anything that the Legislature has done afterwards.” The court, however, concluded: “[Mora has] been afforded a hearing . . . under Franklin. And the statute [section 3051] . . . affords him the right to a youthful offender parole hearing within 25 years after his incarceration. I think that for my purposes the issues have been addressed irrespective of the consequence of another case that he subsequently picked up.”

Counsel for Mora stated “the court hasn’t made a ruling on whether he actually gets a new sentence or not.” The court responded, “Well, I have by virtue of the order, the writ, because it’s been mooted because of [section] 3051, the amendment to it.” Counsel for Mora reiterated that the sentence of “25 to life” disqualified Mora under section 3051. The prosecutor acknowledged “the fact that Mr. Mora was sentenced to life in prison on the basis of that shank possession,” and the court stated “that doesn’t disqualify him given . . . the wording of the statute.” The court adopted the tentative order as the final order and denied Mora’s habeas petition. The trial court did not rule on Mora’s petition under section 1170, subdivision (d)(2). Mora timely appealed.

DISCUSSION

A. We Exercise Our Discretion To Treat Mora’s Appeal as a Petition for Writ of Habeas Corpus and a Petition for Writ of Mandate

“A petitioner currently has no right to appeal from a superior court denial of habeas corpus relief. Instead, review is obtained by filing a new habeas corpus petition in a higher court.” (Briggs v. Brown (2017) 3 Cal.5th 808, 836; see In re Clark (1993) 5 Cal.4th 750, 767, fn. 7 [“Because no appeal lies from the denial of a petition for writ of habeas corpus, a prisoner whose petition has been denied by the superior court can obtain review of his claims only by the filing of a new petition in the Court of Appeal.”]; Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1064 [same].) Mora concedes the order denying his habeas petition is not appealable, but he asks us to treat his appeal as a petition for writ of habeas corpus. In the alternative, Mora asks us to allow him to file an original petition for writ of habeas corpus in this court.

In the interest of judicial economy, we exercise our discretion to treat Mora’s appeal from the trial court’s order denying his petition for writ of habeas corpus as a habeas petition filed in this court. (See People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4 [treating the defendant’s appeal from a nonappealable order denying the defendant’s request to reduce his jail sentence as a petition for writ of habeas corpus “in the interest of judicial economy”]; People v. Gallardo (2000) 77 Cal.App.4th 971, 986 [treating an appeal from the denial of a petition for writ of habeas corpus as a petition for writ of habeas corpus]; People v. Garrett (1998) 67 Cal.App.4th 1419, 1423 [“The denial of a petition for writ of habeas corpus is reviewable by means of a petition for writ of habeas corpus. In the interests of judicial economy, . . . we will treat this appeal as a petition for writ of habeas corpus.”].) We also treat his appeal regarding the trial court’s failure to rule on his petition under section 1170, subdivision (d)(2), as a petition for writ of mandate directing the trial court to rule on the petition.

B. Section 3051 Does Not Moot Mora’s Petition Under Miller Because He Was Sentenced to Life in Prison for a Crime He Committed After He Was 26 Years Old

Mora argues section 3051 does not moot his habeas petition because his 2008 conviction for possessing a weapon in prison, for which he received a prison term of 25 years to life, makes him ineligible for relief under section 3051. The People acknowledge Mora’s “adult conviction for a crime resulting in a life sentence took him out of the category of juvenile offenders whose crimes may have been the result of their youth.” Therefore, as the People conceded at oral argument, Mora’s habeas petition is not moot.

Section 3051, subdivision (h), provides in part: “This section shall not apply to an individual to whom this section would otherwise apply, but who, subsequent to attaining 26 years of age, commits an additional crime for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison.” Mora’s sentence of 25 years to life, which he received under the three strikes law after he turned 26 years old, qualifies as a sentence of “life in prison.” (See People v. Lopez (2005) 34 Cal.4th 1002, 1007 [“a term expressed as years to life” is an “imprisonment in the state prison for life” within the meaning of section 186.22, subdivision (b)(5)]; People v. Williams (2014) 227 Cal.App.4th 733, 744 [sentences of 25 years to life under the three strikes law “constitute life sentences within the meaning of section 186.22, subdivision (b)(5)”].) Because Mora cannot obtain a “meaningful opportunity” for release under section 3051 (Franklin, supra, 63 Cal.4th at p. 280), the trial court can grant Mora effective relief on his habeas petition. (In re Arroyo (2019) 37 Cal.App.5th 727, 732; see People v. Contreras (2018) 4 Cal.5th 349, 359 [because a “youth offender parole hearing is not available to juveniles convicted under the One Strike law [section 667.61],” Franklin did “not resolve” the defendants’ Eighth Amendment argument]; In re Bolton (2019) 40 Cal.App.5th 611, 621 [defendant’s Eighth Amendment arguments were not moot because his sentence under the three strikes law makes him ineligible for parole under section 3051]; People v. Carter (2018) 26 Cal.App.5th 985, 994 [section 3051 “has not rendered moot the constitutional question” whether the defendant’s juvenile sentence violated the Eighth Amendment because the statute “does not apply” to a defendant sentenced under the three strikes law]; see also Franklin, at p. 280 [“express[ing] no view on Miller claims by juvenile offenders who are ineligible for such a hearing under section 3051, subdivision (h)”].)

C. Mora Is Entitled to a Ruling on His Petition Under Section 1170, Subdivision (d)(2)

The trial court did not rule on Mora’s petition under section 1170, subdivision (d)(2), and the People do not argue it did. Instead, the People argue Mora “forfeited” his claim for resentencing under section 1170, subdivision (d)(2), because Mora “did not press for a ruling” on that petition.

It is true that “‘“where the court, through inadvertence or neglect, neither rules nor reserves its ruling . . . the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, [the party] may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place.”’” (People v. Braxton (2004) 34 Cal.4th 798, 813; accord, People v. Cornejo (2016) 3 Cal.App.5th 36, 56.)

Counsel for Mora, however, reminded the court at virtually every hearing that Mora had filed two petitions, each asserting a different legal theory. After the prosecutor, citing the 2017 amendment to section 3051, argued against resentencing, counsel for Mora argued the legislative changes did not have any effect on section 1170, subdivision (d)(2). At the last hearing, counsel for Mora reiterated section 3051 did not moot the petition under section 1170, subdivision (d)(2), and urged the court to proceed with the resentencing hearing even if section 3051 mooted the habeas petition. When the court indicated it had “addressed” all the issues to be decided because Mora was entitled to a youth offender parole hearing under section 3051, counsel for Mora made a final attempt to secure a ruling on the petition under section 1170, subdivision (d)(2), by pointing out the court had not “made a ruling on whether he actually gets a new sentence or not.” The trial court’s statement that it made a ruling “by virtue of the order, the writ, because it’s been mooted because of [section] 3051” suggests the court may have assumed it did not need to decide the petition under section 1170, subdivision (d)(2), given its (incorrect) ruling that Mora will receive a parole hearing under section 3051. But a youth offender parole hearing under section 3051 does not supplant a hearing under section 1170, subdivision (d)(2); the two statutory schemes have different requirements. (See In re Kirchner, supra, 2 Cal.5th at p. 1054 [“In crucial respects, section 1170(d)(2) is different from statutes that automatically provide a timely parole hearing to juvenile offenders sentenced to terms that otherwise might raise Eighth Amendment concerns.”]; cf. People v. Lopez (2016) 4 Cal.App.5th 649, 654 [defendant may seek relief under section 1170, subdivision (d)(2), even after a successful habeas petition that converted his sentence from life without the possibility of parole to life with the possibility of parole].)

Counsel for Mora did not fail to “press for a ruling,” and Mora did not forfeit his right to a ruling on his petition under section 1170, subdivision (d)(2). The People concede that, if Mora did not forfeit the issue, “the matter should be remanded to the trial court for a ruling on the [section] 1170(d)(2) petition.” Done.

DISPOSITION

Mora’s appeal is dismissed. Good cause appearing therefore, the People are ordered to show cause before the Los Angeles Superior Court, when the matter is ordered on calendar, why the relief prayed for in Mora’s habeas petition under Miller should not be granted. The trial court is also directed to rule on Mora’s petition under section 1170, subdivision (d)(2).

SEGAL, J.

We concur:

PERLUSS, P. J. ZELON, J.