California Court of Appeal, First District, Third Division
[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).
[Copyrighted Material Omitted]
[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
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. 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"
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, ...