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People v. Franklin

California Court of Appeal, First District, Third Division

February 28, 2014

The PEOPLE, Plaintiff and Respondent,
v.
Tyris Lamar FRANKLIN, Defendant and Appellant.

[REVIEW GRANTED BY CAL. SUPREME COURT]

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

Superior Court of Contra Costa County, No. 51103019, Leslie G. Landau, Judge. (No. 05-110301-9).

Page 297

[Copyrighted Material Omitted]

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COUNSEL

[168 Cal.Rptr.3d 371] Gene D. Vorobyov, San Francisco, for Plaintiff and Respondent.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Juliet B. Haley, Deputy Attorney General, for Defendant and Appellant

OPINION

Pollak, J.

Defendant Tyris Lamar Franklin appeals a judgment convicting him of one count of first degree murder and sentencing him to a mandatory term of 50 years to life in prison. He contends the court made numerous instructional and evidentiary errors and that because he was 16 years of age at the time of the crime his sentence violates the Eighth Amendment prohibition against cruel and unusual punishment as interpreted by Miller v. Alabama (2012) __ U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ) and People v. Caballero (2012) 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291 ( Caballero ). We find no error with respect to the merits of his conviction and conclude that any potential constitutional infirmity in his sentence has been cured by the subsequently enacted Penal Code section 3051, which affords youth offenders a parole hearing sooner than had they been an adult. Accordingly, we shall affirm the judgment.

Factual and Procedural History

On March 9, 2011, defendant was charged under Penal Code section 187 with the murder of 16-year-old Gene G. The information also alleged a personal firearm discharge enhancement (Pen.Code, § 12022.53, subds. (b)-(d)). The following evidence was presented at trial:

On January 10, 2011, defendant was with four friends when he received a phone call from his older brother. According to defendant, his brother told him that their 13-year-old younger brother had been " jumped" by a boy named Kian and his friends, all of whom were from Crescent Park.[1] After the attack, Kian apparently told defendant's younger brother they were looking for defendant. Defendant told his friends that his brother had been " jumped"

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by Kian and others from Crescent [168 Cal.Rptr.3d 372] Park and he asked one of his friends for a ride to the area. He did not mention Gene as one of the attackers when telling the story to his friends.

When asked what he was going to do at Crescent Park, defendant said something like, " I don't even know. I'm just going to go over there and get on something." Defendant's friends understood that to mean he was going to get in a fight. Defendant testified that after receiving the phone call, he was angry and afraid for his family. He wanted to go to Crescent Park because he did not know what the boys from Crescent Park were going to do next and he wanted to see what they wanted. He claimed he did not have a plan to shoot anyone but admitted that he knew there was a " possibility that [he] might."

The ride to Crescent Park took about five minutes. Two of the juveniles in the car with defendant (Khalifa and Jaswinder) testified for the prosecution. One described defendant's demeanor during the ride as " chill" or relaxed, but the other testified that he seemed angry. When the group arrived at Crescent Park, they saw Gene walking down the street. Gene was known to be friends with Kian, the person who had assaulted defendant's brother. When defendant asked the driver to unlock the door, Khalifa asked, " Why we riding up on Gene when he don't have anything to do with the situation?" Defendant responded with something like, " It don't matter. He is from the Crescents." or " It doesn't matter. They beat up my brother." Jaswinder confirmed that defendant said something like, " It doesn't matter. He's still from Crescent Park."

As defendant got out of the car, he pulled a silver gun from his waistband. According to a witness who observed the events from a balcony across the street, defendant walked around the parked car towards the victim and, without saying anything, shot him several times. She testified that defendant began shooting " shortly after he got out of the car" and before he reached the victim. Jaswinder and Khalifa confirmed that they did not hear any conversation between defendant and the victim before the shots were fired. After the shooting, defendant returned to the car and the car sped off. Back in the car defendant said something like, " That Crescent Park dude is a sucker."

Defendant testified that as he approached Gene he asked, " Which one of you motherfuckers just jumped my little brother?" Gene assertedly replied, " Fuck you and fuck your little brother." At that point, he took the gun from his waistband and shot at the victim. He explained that when he heard Gene's response, he was angry and upset with both Gene and the Crescent Park gang. He was in shock. He " felt ... numb. It was like— it was so much. It was, it was like everything just— I don't know, just — it just, I don't know. Like, I— I wasn't in my body no more. It was like I don't remember everything like."

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At approximately 3:36 p.m., Richmond police responded to the shooting. They arrived to find the 16-year-old victim on the floor of his apartment, having suffered multiple gunshot wounds to his head and body. Gene was pronounced dead at the scene.

The victim's aunt testified that when she heard the gun shots she looked out the window of the apartment where she and Gene lived and saw a young man with a handgun shooting downwards multiple times. A few minutes later, the front door of the apartment opened and the victim ran in, holding his right shoulder exclaiming, " I've been hit" before collapsing on the floor. At trial, the aunt identified defendant as the shooter.

[168 Cal.Rptr.3d 373] Officers confirmed that earlier that day they had received a report that defendant's 13-year-old brother had been assaulted. He had identified his attacker as Kian and told the police that Kian told him to tell his brother, defendant, that Kian was looking for him.

On cross-examination, both Khalifa and Jaswinder testified that they had seen defendant engage in fights before, but that he had previously used only his fists and not a weapon. Khalifa testified that defendant and Kian " had problems" with each other and had been involved in prior fights and disagreements. Jaswinder was unable to identify who, other than defendant, had been involved in any of the prior fights he had witnessed.

In his direct testimony, defendant testified about his history with the victim and the Crescent Park gang prior to the shooting. Defendant had been friends with the victim from fifth until seventh grade, but they were no longer friends at the time of the shooting. Defendant had no further contact with the victim until the day of the shooting. He did continue to have problems with others from Crescent Park. He had recently been in a number of fights with others. Defendant acknowledged that sometimes he started the fights but claimed that sometimes the others had started them. Defendant testified about a fight that had occurred recently at a local BART station between him and " Lisso," another member of the Crescent Park gang. Defendant also believed that the gang had shot at his house several times in the recent past. Finally, defendant testified that days before the shooting Kian and another boy from Crescent Park came to defendant's classroom, where Kian pulled up his shirt, displaying a gun on his hip. Defendant understood this demonstration to be a threat. On the morning that Gene was shot, defendant spoke to his older brother about what had happened with Kian in the classroom, and his brother gave him a gun for protection.

Defendant admitted he knew that Gene had nothing to do with the beating of his younger brother. When he got out of the car, he was not specifically

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angry at Gene, but was generally angry at Lisso and Kian and " other people that's in their gang." He acknowledged that he had no reason to believe that Gene was responsible for the shots fired at his family's home, other than that Gene was associated with the Crescent Park gang.

On cross-examination, the prosecutor questioned defendant extensively about his history of fighting. Questions were asked both about fights involving boys from Crescent Park and others. The prosecutor accused defendant of lying about the nature of the fight with Lisso at the BART station. When confronted with a police report that described the incident as defendant and three others assaulting Lisso, rather than a one-on-one fight as defendant claimed, defendant accused the officer of lying.

On rebuttal, the prosecutor called BART Police Officer Enerio to testify regarding the fight he observed between defendant and Lisso. Enerio testified that on July 6, 2010, at approximately 3:35 p.m. he was on patrol at the El Cerrito Del Norte BART station and observed a fight occurring in the bus zone, on the west side of the station. He saw four individuals beating on an individual on the ground. Defendant was picking up the individual and slamming him against the wall and the sidewalk and the others in the group were punching the individual in the face. As Officer Enerio approached, the four individuals ran in separate directions. Enerio decided to follow defendant who he believed to be the primary aggressor.

[168 Cal.Rptr.3d 374] The defense then called Lisso who testified that he could not remember how many people attacked him and that the police arrived only after the fight was over.

The jury found defendant guilty of first degree murder and found the firearm personal use and discharge allegation to be true. Defendant was sentenced to 25 years to life for the murder and a consecutive 25-to-life term on the firearm enhancement, for a total sentence of 50 years to life in state prison.

Defendant filed a timely notice of appeal.

Discussion

1.-5.[**]

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6. Defendant's challenge to his sentence under the Eighth Amendment is moot.

Defendant was sentenced to a term of 50 years to life, 25 years to life on the murder count, and a consecutive 25-year-to-life term for the use of the firearm that caused death. (§§ 190, subd. (a), 12022.53, subd. (d).) Defendant contends his sentence is a de facto life without the possibility of parole (LWOP) sentence which violates the proscriptions against cruel and unusual punishment in the United States and California Constitutions. The Attorney General disputes this contention and argues further that even if the sentence as imposed is so regarded, any need for resentencing has been eliminated by the recent enactment of Senate Bill No. 260 which cured any constitutional infirmity.[4]

In Graham v. Florida (2010) 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 ( Graham ), the court held that the Eighth Amendment prohibits states from sentencing a juvenile convicted of a nonhomicide offense to life imprisonment without the possibility of parole. In Miller, supra, 567 U.S. at p. __, 132 S.Ct. at p. 2464, the court further expanded the scope of the protection afforded juveniles, holding that even in homicide cases a mandatory sentence of life in prison without the possibility of parole imposed on a defendant who was under the age of 18 at the time of his or her crime violates the Eighth Amendment. The court explained that the Eighth Amendment does not necessarily foreclose a sentence of life without the possibility of parole on " ‘ the rare juvenile offender whose crime reflects irreparable corruption’ " (567 U.S. at p. __, 132 S.Ct. at p. 2469), but does require that prior to imposing such a sentence, the court " take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison" (ibid. fn. omitted). The court explained, " Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features— among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him— and from which he cannot usually extricate himself— no matter how brutal or dysfunctional. It neglects 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. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth— for example, his inability to deal [168 Cal.Rptr.3d 375] with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys." ( Id. at p. __, 132 S.Ct. at p. 2468.)

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In People v. Caballero, supra, 55 Cal.4th at page 268, 145 Cal.Rptr.3d 286, 282 P.3d 291 the California Supreme Court held that in nonhomicide cases involving juvenile offenders, the Eighth Amendment categorically prohibits the imposition of a sentence that is the " functional equivalent" of a LWOP sentence because the defendant's parole eligibility date would fall outside his natural life expectancy. Although the court in Caballero declined to reach the question of whether mandatory, de facto life sentences for juveniles in homicide cases would violate the Eighth Amendment (55 Cal.4th at p. 268, fn. 4, 145 Cal.Rptr.3d 286, 282 P.3d 291, citing Miller, supra, 567 U.S. __, 132 S.Ct. 2455), subsequent appellate decisions have held that an expansive interpretation of what constitutes a life sentence should also apply in such cases (see People v. Thomas (2012) 211 Cal.App.4th 987, 1014-1016, 150 Cal.Rptr.3d 361; People v. Argeta (2012) 210 Cal.App.4th 1478, 1482, 149 Cal.Rptr.3d 243).

It is undispeted that defendant committed the crime when he was 16 years old and, taking into account his presentence custody credits, under the sentence imposed he would first become eligible for parole in 2060 or 2061, at the age of 66 years. To support his argument that the sentence was equivalent to an LWOP, defendant cites data from the Centers for Disease Control and Prevention showing that an African-American male born in 1994 has a life expectancy of between 65 and 73 years and can expect to live to either 2059 or 2067, depending on whether one looks at life expectancy at his year of birth (1994) or in 2008.[5] In People v. Perez (2013) 214 Cal.App.4th 49, 57-58, 154 Cal.Rptr.3d 114, the court recognized that there is no bright line defining " [h]ow much life expectancy must remain at the time of eligibility for parole" to satisfy constitutional concerns, but concluded that there must be at least " time left for [a defendant] to demonstrate, as the Graham court put it, ‘ some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’ " In light of our conclusion post, that recently enacted legislation has cured any constitutional defect in defendant's sentence, we need not decide whether the sentence imposed on defendant, in view of his life expectancy, is the functional equivalent of an LWOP sentence. We shall assume, without deciding, that the sentence, when imposed, violated the Eighth Amendment and that had there been no intervening developments, remand for resentencing would have been required.

The Attorney General argues, however, that the recent enactment of Senate Bill No. 260, adding section 3051 to the Penal Code, negates the need to remand this matter for resentencing. Section 1 of Senate

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Bill No. 260 states in relevant part: " The Legislature finds and declares that, as stated by the United States Supreme Court in Miller [, supra, 567 U.S. __, 132 S.Ct. 2455], ‘ only a relatively small proportion of adolescents' who engage in illegal activity ‘ develop entrenched patterns of problem behavior,’ and that ‘ developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds,’ including [168 Cal.Rptr.3d 376] ‘ parts of the brain involved in behavior control.’ The Legislature recognizes that youthfulness both lessens a juvenile's moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society. 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, in accordance with the decision of the California Supreme Court in [ Caballero ] and the decisions of the United States Supreme Court in [ Graham ] and [ Miller ]." (Legis. Counsel's Dig., SB 260 (2013-2014 Reg. Sess.) § 1, pp. 2-3.)

Newly enacted Penal Code section 3051 provides that " any prisoner who was under 18 years of age at the time of his or her controlling offense" shall be afforded a " youth offender parole hearing" before the Board of Parole Hearings (the board). (Pen.Code, § 3051, subd. (a)(1).) The hearing " shall provide for a meaningful opportunity to obtain release. The board shall review and, as necessary, revise existing regulations and adopt new regulations regarding determinations of suitability made pursuant to this section, subdivision (c) of Section 4801, and other related topics, consistent with relevant case law, in order to provide that meaningful opportunity for release." (Pen.Code, § 3051, subd. (e).) Any psychological evaluations and risk assessments used by the board " shall be administered by licensed psychologists employed by the board and shall take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual." (Pen.Code, § 3051, subd. (f)(1).) With limited inapplicable exceptions, juvenile offenders sentenced to a " term of 25 years to life shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing ..." (Pen.Code, § 3051, subds. (b)(3), (h).) [6]

California Courts of Appeal are divided on the effect of this new legislation on sentencing challenges under the Eighth Amendment. (See In re Alatriste

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(2013) 220 Cal.App.4th 1232, 163 Cal.Rptr.3d 748, review granted Feb. 19, 2014 (S214652); People v. Martin (2013) 222 Cal.App.4th 98, 165 Cal.Rptr.3d 605; In re Heard (2014) 223 Cal.App.4th 115, 166 Cal.Rptr.3d 824.) In People v. Martin, supra, at pages 104 to 105, 165 Cal.Rptr.3d 605, the court concluded that in light of the new statutory provision, defendant's sentence of 45 years plus two consecutive life terms was not unconstitutional under the Eighth Amendment. The court explained, " Newly created section 3051 ... provides Martin ‘ some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’ [Citation.] Martin was 19 years old at his June 29, 2012, sentencing, and pursuant to section 3051, will receive a youth offender parole hearing at age 44. His present sentence therefore is not ‘ the functional equivalent of a life without parole sentence.’ " ( 222 Cal.App.4th at p. 105, 165 Cal.Rptr.3d 605.) The court rejected defendant's argument that he was " entitled to a new sentencing hearing during which [168 Cal.Rptr.3d 377] the trial court considers ‘ all mitigating circumstances attendant in [his] crime and life.’ " ( Ibid. at p. 105, 165 Cal.Rptr.3d 605, quoting People v. Caballero, supra, 55 Cal.4th at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291.) Relying in part on In re Alatriste (which the Supreme Court has agreed to review), the Martin court explained: " The judicial decisions discussed here ‘ merely hold that a juvenile defendant may not be incarcerated for life or its functional equivalent without some meaningful opportunity for release on parole during his or her lifetime.’ [Citation.] Indeed, Caballero states that the court shall consider the mitigating circumstances ‘ so that it can impose a time when the juvenile offender will be able to seek parole from the parole board.’ [Citation.] Senate Bill No. 260 (2013-2014 Reg. Sess.) insures that Martin will be afforded a meaningful opportunity for release on parole after a set number of years based upon fixed criteria." ( 222 Cal.App.4th at p. 105, 165 Cal.Rptr.3d 605.)

In In re Heard, supra, 223 Cal.App.4th 115, 166 Cal.Rptr.3d 824 ( Heard ), the court disagreed with Alatriste and Martin . The Heard court explained, " Although Senate Bill No. 260 offers almost all juvenile offenders a ‘ meaningful opportunity’ to obtain parole during their lifetimes, we do not share the court's determination in Alatriste that Senate Bill No. 260 essentially allows a sentencing court to ignore the requirements of Graham, Miller, and Caballero . These three cases focus on the differences between adult offenders and juvenile offenders. (See Graham, supra, 560 U.S. at pp. 67-69 [130 S.Ct. 2011]; [168 Cal.Rptr.3d 378] Miller, supra, 567 U.S. at p. __, 132 S.Ct. at p. 2469; Caballero, supra, 55 Cal.4th at p. 267 [145 Cal.Rptr.3d 286, 282 P.3d 291].) They stress the importance of the sentencing court considering these differences when sentencing the juvenile offender. The holding of Alatriste, supra, 220 Cal.App.4th 1232 [163 Cal.Rptr.3d 748], allows the sentencing court to disregard Graham, Miller, and Caballero because of the impact of Senate Bill No. 260 on a juvenile's sentence. In other words, Alatriste relieves the sentencing court of its constitutional duty to consider the differences between juveniles and adults when sentencing juvenile offenders because Senate Bill No. 260 is intended to provide a juvenile offender a " meaningful opportunity" to obtain release on

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parole during his or her lifetime. [¶] We do not read Senate Bill No. 260 as a replacement of the sentencing court's execution of its constitutional duties as required under [ Graham, Miller, and Caballero ], to consider the differences between juveniles and adults when sentencing a juvenile offender. Instead, we view Senate Bill No. 260 as a ‘ safety net’ to guarantee a juvenile offender the opportunity for a parole hearing during his or her lifetime. As a result, we conclude the sentencing court still must attempt to prescribe the constitutionally appropriate sentence under Graham, Miller, and Caballero . [¶] ... [¶] This is all the more true because there is no guarantee that Senate Bill No. 260 will remain in existence when Heard would be eligible to benefit from it. We are troubled by the potential consequences if California trial courts begin to ignore the requirements of [ Graham , Miller, and Caballero ], in sentencing juvenile offenders only to have Senate Bill No. 260 replaced or repealed at a later date. The prudent course remains for a sentencing court to abide by the constitutional requirements of those cases in sentencing juvenile offenders." ( Heard, supra, 223 Cal.App.4th at pp. 130-131, 166 Cal.Rptr.3d 824, fns. omitted.)

We find the reasoning set out in Martin more compelling. Unlike the court in Heard, supra, 223 Cal.App.4th 115, 166 Cal.Rptr.3d 824, we do not read Miller, supra, 567 U.S. __, 132 S.Ct. 2455, to require the trial judge at the time of initial sentencing to make a determination as to when a particular juvenile offender should become eligible for parole consideration. Rather, the high court and subsequently our state Supreme Court have condemned imposition of a sentence on most juveniles that denies them a meaningful opportunity for parole during their lifetime. While an effective LWOP sentence imposed prior to the enactment of Penal Code section 3051 may have violated constitutional restrictions when rendered, the new section has provided the parole opportunity that was constitutionally lacking. Without the recent legislation, defendant here arguably faced " the functional equivalent of a life without parole sentence" as described in Caballero, supra, 55 Cal.4th at page 268, 145 Cal.Rptr.3d 286, 282 P.3d 291, triggering the need for the exercise of discretion under Miller . However, with the new parole eligibility date provided by Penal Code section 3051, defendant's sentence is no longer the functional equivalent of an LWOP sentence and no further exercise of discretion at this time is necessary.

We believe that the procedure adopted in Penal Code section 3051 is preferable to the determination of parole eligibility dates for juvenile offenders when they are sentenced. The underlying rationale for constitutionally requiring that juvenile offenders be afforded an opportunity for meaningful parole is that many will outgrow the youthful characteristics responsible for their criminal conduct and with maturity become capable of leading constructive and law-abiding lives. ( Miller, supra, 567 U.S. at pp. __, 132 S.Ct. at pp. 2464-2465.) Whether a particular juvenile acquires the maturity and insight to justify parole certainly can be determined more intelligently and more fairly with the passage of time, rather than by a prediction at the time of

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sentencing. The statute provides predictability for most juvenile offenders and relieves trial judges of the great uncertainty inherent in setting an alternative parole eligibility date. (See Caballero, supra, 55 Cal.4th at pp. 268-269, 145 Cal.Rptr.3d 286, 282 P.3d 291 [declining to provide trial courts with a precise time frame for setting future parole hearings but requiring sentencing courts to " consider all mitigating circumstances attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board" ].)

Penal Code section 3051 is precisely what the court in Caballero, supra, 55 Cal.4th at page 269, footnote 5, 145 Cal.Rptr.3d 286, 282 P.3d 291 urged the Legislature to adopt: " We urge the Legislature to enact legislation establishing a parole eligibility mechanism that provides a defendant serving a de facto life sentence without possibility of parole for nonhomicide crimes that he or she committed as a juvenile with the opportunity to obtain release on a showing of rehabilitation and maturity." The Legislature has gone further and created a mechanism applicable to most juvenile offenders, including those guilty of homicide crimes. With that mechanism now embedded in the statutory scheme, there is no basis for remanding the matter to the trial court to fix a parole eligibility date which, if not the date prescribed by the new statute, would necessarily be a date plucked from the air without statutory authority or precise criteria.

Similarly, we also disagree with the court in Heard that the remote possibility that Penal Code section 3051 might be replaced or repealed requires that we disregard its current applicability. Should this unlikely event occur, it will be time [168 Cal.Rptr.3d 379] enough to consider appropriate relief, whether by petition for habeas corpus or other appropriate means.

In short, because defendant no longer faces the functional equivalent of life without the possibility of parole for the crime he committed as a juvenile, he is not entitled to a new sentencing hearing under Miller or remand under Caballero to determine the time for parole eligibility.

7. Custody Credits [***]

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DISPOSITION

Defendant's judgment of conviction is affirmed. The judgment is modified to award defendant 502 custody credits under Penal Code section 2900.5.

We concur: McGuiness, P.J., Jenkins, J.


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