Monday, August 19, 2019
Court of Appeal:
Decision, Echoing View Expressed Last Year in Dissent by Rubin, Says Sentence, If Shaved, Would Still Exceed Defendant’s Life Expectancy but Excising Prior Would Impact Parole Eligibility
By a MetNews Staff Writer
A man who shot into a crowd, wounding three persons, will have a second crack at attempting to convince a judge, under a remand by the Court of Appeal, to strike a prior, which would reduce his sentence from 165 years in prison to 120 years—with the opinion noting that although 120 years would exceed his life expectancy, elimination of the prior would affect his parole eligibility.
Presiding Justice Tricia A. Bigelow of this district’s Div. Eight explained in an unpublished opinion on Thursday:
“With the prior juvenile strike, his 165-years-to-life sentence extended beyond his natural life expectancy and was unquestionably the functional equivalent of life without parole….Without the strike, he could have been sentenced to 120 years to life, which was still the functional equivalent of life without parole….
“However, without the strike, he would be eligible for parole consideration after serving 20 years pursuant to newly enacted statutory provisions providing parole eligibility for offenders who committed their crimes at the age of 25 or younger.”
Bigelow also pointed out that if the strike is wiped out, the defendant “would also be eligible for parole under the recently enacted Elderly Parole Program when he is 60 years old.”
The defendant, Freddy Moreno, was 19 when he committed the shootings. The strike was based on a robbery he perpetrated at the age of 16.
Bigelow’s Earlier Opinion
Div. Eight filed an opinion in the case last Dec. 27, with Bigelow writing the majority opinion, in which Justice Elizabeth Grimes joined. Laurence D. Rubin, who was confirmed six days earlier as presiding justice of Div. Five, wrote a concurring and dissenting opinion, under assignment to Div. Eight, where he previously served as an associate justice.
In her initial opinion, Bigelow said that Los Angeles Superior Court Judge Gary J. Ferrari did not abuse his discretion in denying Moreno’s motion for a striking of the prior pursuant to People v. Romero.
She found, however, that the judge mistakenly sentenced the defendant to 21 years on one count of voluntary manslaughter, with a base term of six years, when the crime was attempted voluntary manslaughter, and a remand was ordered for resentencing on that count, and for a determination whether firearms allegations should be stricken.
Rubin said he “would remand for resentencing in the entirety,” explaining that in discussing the Romero motion, “[n]either counsel truly focused” on the effect that striking the prior would have on parole eligibility. He quoted the prosecutor as saying:
“I think at this point California law has built-in protections and considerations that allow for [defendant] to have those considerations be taken into account, that’s been built in in the last few years based on the changes in California law.”
The jurist commented:
“To the extent this statement was meant to refer to youth offender parole hearings, it left the incorrect impression that ‘protections and considerations’ would apply even if the Romero motion were denied—which is, in fact, not the case.”
The California Supreme Court on April 24 granted review in the case, then retransferred it to Div. Eight with directions to decide anew whether Ferrari abused his discretion in denying the motion to strike. The order says:
“In particular, in light of the prosecutor’s unchallenged statements concerning protective laws for youth offenders and the court’s own statements at the hearing, the Court of Appeal is directed to reconsider whether the trial court can properly be presumed to have been aware that its refusal to strike the juvenile prior would render defendant ineligible for a youth offender parole hearing.”
In her opinion Thursday, Bigelow—joined by Grimes and Justice John Shepard Wiley Jr.—declared:
“We have reconsidered the issue and will remand for a new Romero hearing. The trial court is directed to clarify on the record whether it has considered the impact of striking Moreno’s juvenile prior on his eligibility for a youth offender parole hearing. If the court determines Moreno’s juvenile prior should be stricken, it should allow Moreno an opportunity to make a record of mitigating evidence tied to his youth for any later parole hearing.”
The case is People v. Moreno, B285783.
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