California Court of Appeal, Fourth District, First Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Original proceeding on a petition for writ of habeas corpus. Relief granted. (Super. Ct. No. SCD193832).
[166 Cal.Rptr.3d 825] Law Offices of Kurt David Hermansen, under appointment by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Randall D. Einhorn, Deputy Attorneys General, for Respondent.
A jury convicted Frank Eli Heard of two counts of attempted willful, deliberate and premeditated murder. (Pen.Code,  § 664, 187, subd. (a).) The jury found true that Heard committed the offenses for the benefit of a street gang. (§ 186.22, subd. (b)(1).) The jury also found true certain firearm use enhancements under section 12022.53, subdivisions (c) and (d) and section 12022.5. Heard subsequently pled guilty to voluntary manslaughter (§ 192, subd. (a)) based on a shooting unrelated to the counts for attempted murder. He also admitted that he committed that offense for the benefit of a street gang (§ 186.22, subd. (b)(1)) and discharged a firearm causing great bodily injury and death within the meaning of section 12022.5, subdivision (a).
The superior court sentenced Heard to prison for a determinate term of 23 years for the manslaughter count and a consecutive indeterminate term of 80 years to life for the two counts of attempted murder. Heard was 15 years old when he committed the two counts of attempted murder and 16 years old when he committed the voluntary manslaughter.
Heard brings this petition for writ of habeas corpus, contending that his sentence is equivalent to a sentence of life without the possibility of parole, and thus, violates the holding of People v. Caballero (2012) 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291 ( Caballero ). In Caballero, our high court
" conclude[d] that sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment." ( Id. at p. 268, 145 Cal.Rptr.3d 286, 282 P.3d 291.)
The Attorney General does not dispute that Heard's sentence is the equivalent to life without the possibility of parole, but counters that Caballero, supra, 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291 only applies to nonhomicide crimes and because Heard pled guilty to voluntary manslaughter, Caballero is distinguishable from the instant matter. As such, the Attorney General asserts Heard's sentence does not violate the Eighth Amendment, citing the United States Supreme Court's recent case Miller v. Alabama (2012)
___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ) (concluding " mandatory life-without-parole sentences for juveniles violate the Eighth Amendment [,]" but noting a life-without-parole sentence is permissible for homicide offenses (although " uncommon" ) in the sentencing court's discretion).
[166 Cal.Rptr.3d 826] The Attorney General is correct that Heard was sentenced, in part, for committing a homicide. Our high court in Caballero, supra, 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291 did not address such a situation. Instead, it left Miller, supra, 132 S.Ct. 2455 to be applied in the homicide context. ( Caballero, supra, at p. 268, fn. 4, 145 Cal.Rptr.3d 286, 282 P.3d 291.) Yet, this case does not present the same issue as the one addressed in Miller, supra, 132 S.Ct. 2455, namely the unconstitutionality of a mandatory life without the possibility of parole sentence for a homicide offense. Here, Heard did not receive such a sentence, and the portion of his sentence attributable to his homicide crime is 23 years, hardly the " harshest possible penalty" that concerned the Supreme Court in Miller . (See id. at p. 2469.)
Despite this matter not falling directly under the ambit of either Miller, supra, 132 S.Ct. 2455 or Caballero, supra, 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291, we remain concerned by Heard's sentence. Ironically, it is not the homicide that leads to the troubling nature of Heard's sentence, but the nonhomicide offenses, which account for the majority of Heard's prison term. When added to the determinate sentence Heard received for voluntary manslaughter, the 80-year-to-life indeterminate sentence for the nonhomicide offenses results in a de facto life without the possibility of parole sentence. Also, the homicide offense occurred six months after Heard's two attempted murder offenses. Additionally, Heard's homicide offense was for voluntary manslaughter, a crime the Legislature has not seen fit to punish with a life sentence. Under these unique circumstances, we follow Caballero, supra, 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291 and conclude Heard's sentence violates the Eighth Amendment.
However, recently the Legislature enacted Senate Bill No. 260 (SB 260), which amends the California Penal Code to
address the sentencing concerns expressed in Miller, supra, 132 S.Ct. 2455, Caballero, supra, 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291, and Graham v. Florida (2010) 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 ( Graham ). SB 260, which took effect January 1, 2014, provides almost every juvenile offender an " opportunity parole hearing" whereby the juvenile would be given a " meaningful opportunity" for release during his or her lifetime. The Attorney General maintains that this new law essentially moots Heard's petition because he will have the opportunity to be released during his lifetime. Despite SB 260 offering the possibility of release during Heard's lifetime, we nevertheless conclude a sentencing court must comply with Graham , Miller, and Caballero in sentencing juvenile offenders. Accordingly, we grant the requested relief.
FACTUAL AND PROCEDURAL BACKGROUND
Heard was charged in an amended indictment with two counts of attempted murder and a third count of murder. The two attempted murders occurred about six months before the homicide. The amended indictment further alleged certain enhancements related to each count, including that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and a variety of firearm use enhancements (§ 12022.53, subds. (c), (d) & (e)(1)).
The attempted murder charges stemmed from Heard's participation in a drive-by criminal gang style shooting in which two victims, alleged rival gang members, [166 Cal.Rptr.3d 827] were injured. The murder charge allegedly involved Heard shooting a minor whom he thought was selling drugs in Heard's criminal street gang's territory.
The trial court granted Heard's motion to sever counts 1 and 2 from count 3. Counts 1 and 2 proceeded to a jury trial. At that trial, the jury found Heard guilty of both counts of attempted murder. The jury also found true the firearm allegations as well as the gang allegations.
After the verdict, Heard entered into a plea agreement on count 3. He pled guilty to the lesser included offense of voluntary manslaughter and admitted to committing the offense for the benefit of a criminal street gang under section 186.22, subdivision (b)(1) and personally using a firearm under section 12022.5, subdivision (a).
Prior to Heard's sentencing hearing, Heard's counsel filed a sentencing memorandum arguing it would be cruel and unusual punishment in violation of the Eighth Amendment to impose a life sentence on Heard. In the memorandum, Heard urged the court to consider Heard's age, family situation, exposure to violence at an early age, limited intelligence, and introduction to criminal street gangs as a toddler.
During the sentencing hearing, Heard's attorney continued to advance a constitutional argument that the court should not sentence Heard to life in prison. The court was not convinced, commenting: " Clearly, objectively there's no constitutional infirmity for the imposing of a life sentence for an attempted premeditated murder. That is the desire of the Legislature. It has been confirmed by the court."  The court proceeded to explain that the issue that it must determine in sentencing Heard, was whether a " subjective analysis" " of Mr. Heard personally renders such a sentence constitutional[ly] infirm."
The court explained that Heard was the " poster child for the legislative intervention with regard to gangs." Considering the Legislature's focus on gang violence and the statutes enacted to address it, the court found " no constitutional infirmity in the application of either a life sentence as to the counts or a life sentence as to the enchancements." Accordingly, the court sentenced Heard to prison for a total of 80 years to life plus 23 years comprised of the following: 15 years to life for count 1 (attempted murder), 25 years to life for the firearm enhancement under section 12022.53, subdivision (d) on count 1; 15 years to life for count 2 (attempted murder), 25 years to life for the firearm enhancement under section 12022.53, subdivision (d) on count 2; and 23 years for count 3 (voluntary manslaughter). The court stayed additional 20-year enhancements under section 12022.53, subdivision (c) and section 12022.5 for counts 1 and 2. The court elected to run the sentences for counts 1, 2, and 3 consecutively.
Heard appealed his conviction and sentence, and this court affirmed the judgment in People v. Heard (Feb. 24, 2009, D052492) [nonpub. opn.], review denied [166 Cal.Rptr.3d 828] May 20, 2009, S171378. Heard filed a petition for a writ of habeas corpus with the superior court, claiming, among other things, his prison sentence is excessive because he ...