1 Filed 4/23/21 P. v. Ceballos CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v. ANDREW CEBALLOS,
Defendant and Appellant. A158314

(Solano County Super. Ct. No. VCR221474)

ORDER MODIFYING OPINION

BY THE COURT:

The opinion filed herein on March 24, 20 21 , is modified as

follows

. On page 19, the second sentence in the first full paragraph

is modified to read :

As to the other arguments, the People assert that at least two of them, arguments two (equal protection) and three (denial of
Romero motion) were waived, as the arguments could have been made in the first appeal.

This modification does not effect a change in the j udgment.

Date: 4/23/21

________________ Kline, P.J.1 Filed 3/ 2 4 /21 P. v. Ceballos CA1/2 (unmodified opinion) NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Res pondent,

v. ANDREW CEBALLOS,
Defendant and Appellant. A158314

(Solano County Super. Ct. No. VCR221474)

Defendant Andrew Ceballos was convicted of second degree murder and

assault with a semi automatic firearm after he fired eight shots through the

closed door of a crowded bedroom, killing one of the five people inside.

Defendant appealed, and in August 2018, we affi rmed the judgment of

conviction

. B ut

, based on a change in the law , we remanded the case “for the

sole purpose of allowing the trial court to exercis e its discretion under

subdivision (h) of [Penal Code] section 12022.53 ” whether to strike the

25

- year enhancement imposed for personal use of a firearm.

Prior to resentencing, defendant filed a sentencing memorandum that

raised additional claims attacking his sentence, claims not even responded to

in the People’s opposition memorandum

. The trial court declined to strike

the enhancement. And as to defendant’s additional claims, the trial court2

noted they had already been decided and rejected on appeal

, and, even if it

were to consider the claims , it would deny them on the m erits.

Defendant appeals again, contending the trial court abused its

discretion in refusing to strike the personal use enhancement. In addition,

defendant makes five other arguments, two of which are identical to
arguments rejected in his first appeal. He has also filed a petition for writ of

habeas corpus, claiming that his trial counsel rendered ineffective assistance

in various ways

. Th e petition also asserts arguments rejected in his prior

appeal

, and others that are identical to his claims on appea l

. We conclude that only two claims of error are properly before us on

appeal : ( 1) the refusal to strike the gun enhancement and (2) the imposition

of a restitution fine. As to the first, we remand to the trial court once again,

to exercise its discretion in light of all applicable legal principles . As to the

second, we affirm. And as to the habeas corpus petition, we issue an order to

show cause returnable in the trial court, in effect transferring the petition

there, a transf

er agreed to by both sides

.

BACKGROUND

The Facts

The victim, Willie Troy Johnson (Troy , sometimes called T

- R o y ) was

killed on July 14, 2014 in the home of defendant’s mother Judith Williams.

These are the facts leading to the killing. 1

Twenty

- four

- year

- o ld defendant and his three

- year

- old daughter were
living with Williams and her boyfriend, Major Carter, in Williams’s small,

one

- bedroom home in Vallejo

, having moved in about three months earlier.

1 We granted defendant’s motion to augment the record with the record in the first appeal, No. A148521.3

Williams and Carter slept in the bedroom, and defendant a nd his daughter in

the living room, where defendant slept on the couch. The home was a “trap

house” where people would use or buy heroin.

A day or so before July 14, defendant had an argument with Carter,

defendant believing that Carter was cheating on h is mother by having an

affair . Defendant punched Carter numerous times, leaving his face swollen

and with two black eyes. Defendant claimed that after the beating his

mother told him he had to move out.

On the night before July 14, several people besides Williams were at

her house, including defendant

, his daughter, Terrance Woods (a friend of

Williams and Carter )

, Troy, an d his son Tynez Johnson

. Woods heard

defendant arguing with his mother about having to leave the house, following

which argument defendant left the house

, not to return that night. Shortly

after defendant left, Woods

, Troy

, and Tynez also left. Troy ret urned later

that evening and Tynez even later

, joining his father to sleep in the living

room.
Sometime the next morning, defendant returned to the house, and then

left again for a few hours, asking Troy to watch his daughter. 2 At that point

, Williams, Carter

, Troy, Woods , Tynez and defendant’s daughter were at the

house. Sometime that morning, Williams made pancakes for everyone, and

they ate together in the bedroom. And the five adults spent the next few

hours together in the bedroom watching movies on television. 3

2 It is not clear exactly when defendant left, but Tynez remembered that defendant was there when he woke up.

3 The bedroom was a square, measuring nin e feet, ten inches on each side . The width of the bedroom door was two feet, eight inches.4

Defendant returned to the house after a few hours, estimating he

arrived around 11:30 or noon

. W ith the others still in the bedroom,

defendant lay down on the living room couch and went to sleep.

Williams, who had been sitting on the bed with Carter, left the

bedroom to do dishes and then make a phone call. To remain shut, the

bedroom door had to be latched from inside

, and w hen Williams left the room,

Troy, who was closest to the door, latched it shut.

Sometime between 1:00 and 2:00 p.m., defendant’s former girlfri end,

Aqua Vincent, came by the house, driven by her friend Kayla Reed. Vincent

and Reed had come from a doctor’s appointment for Vincent’s newborn baby,

who was defendant’s son, and ha d gone to Williams’s house “to pick up money

from defendant.” 4 Reed and the baby stayed in the car in the alley outside

the house, while Vincent went into the house where she saw defendant asleep

on the couch . Vincent tried to wake him up, without succe ss, and went back

outside

, where Williams was now sitting in the car with the baby. When

Vincent told Williams that defendant would not wake up, Williams said she

would try to wake him up, to which Vin cent responded, “Good luck.”

Defendant became angry a fter his mother woke him up and they began

to argue. According to defendant, his mother told him that she and Carter

had decided that he could not live there but would not tell him why he had to

leave.

Around the same time, Jami Schooler was in the house to “get some

dope.” When she arrived, d efendant was asleep on the couch

, Williams was

in the kitchen, and Carter, Woods, Troy, and Tynez were in the bedroom.

4 Defendant and his daughter had lived with Vincent for nine months before they severed their relationship and defendant moved in with his mother.5

About the time Schooler was going to leave, she saw defendant and his

mother arguing in the kit chen. She then saw defendant go into the living

room and return with a gun that he p ut in the waistband of his pants.

Schooler decided it was time to leave, went outside, and began to walk away,

when she heard gunshots.

Before the shooting, defendant had gone outside to the driver’s side of

Reed’s car and asked Vincent to take him to the store. Vincent refused

, saying she did not have time for that. Williams had followed him outside and

stood on the porch, continuing to argue with him about Carter and telling

him she wanted him and his daughter out of the house. Like Schooler,

Vincent also decided she did not want to stay

, and she told police she heard

Williams say something like “shoot me or put that thing away.” Vincent and

Reed began to drive away, and moments later heard gunshots.

Just before the shooting, Tynez and Woods heard defendant and his

mother arguing loudly outside the bedroom , being able to hear over the sound

of the television. Then, after the shouting ended, defendant fir ed at least

eight bullets into the bedroom, primarily through the door. After the first

shot, Tynez, Troy, and Woods dove to the ground, and Carter backed himself

against the wall. Troy was hit by one of the bullets and within minutes die d

of a gunshot w ound that entered his left chest, passed through his heart,

stomach, and liver, and exited his abdomen. 5

After the shooting, Tynez and Woods immediately went to provide aid

to Troy

. S oon after, the latched door was “kicked open[],” and Williams ran

into the bedroom followed by defendant. Tynez heard defendant say “T

- Roy

, ”

5 Police later recovered four casings from a nine

- millimeter semiautomatic, and identified seven bullet holes in the bedroom door that “spanned from the bottom to the top of the door” and an additional bullet hole in the frame to the left of the door.6

and thought defendant seemed surprised he had shot Troy. Woods said that

defendant, while still holding the gun, said, “Oh, my God” and “What the fuck

have I done ? ” With the gun still in his hand, defendant left the house, went

to a friend’s house, and called Vincent , telling her he was sorry.

Defendant was found by police and arrested two weeks later. During

an interview with police, he denied that he was present at the shooti ng.
The Proceedings Below

On December 1, 2014, the d istrict a ttorney filed an information

charging defendant with two counts: in count 1, with murder, and alleging

enhancements for discharge of a firearm resulting in death, discharge of a

firearm, and person al use of a firearm. (Pen. Code, §§ 187, subd. (a),

12022.53, subds. (b), (c) , (d), 12022.5, subd. (a)(1)) 6 ; and in count 2

, with

assault with a semiautomatic firearm, and alleging an enhancement for

personal use of a firearm (§§ 245, subd. (b), 12022. 5, subd. (a)(1) )

. The

information also alleged a prior juvenile adjudication for robbery as a strike

offense

. (§ 667, subd s .(a)(1), (b), 1170.12, subds. (a)

– (d).)

Following a seven

- day trial, a jury found defendant guilty of the

charge s and found true the firearm enhancements. Defendant waived jury

trial of his prior offenses, and on August 21, 2015, the trial court found true a

prior robbery

, which was both a serious felony and a strike offense.

On May 9, 2016, the trial court denied defendant’s motion for new trial

and his Romero motion to dismiss his strike offense. 7 Doing so, the court was

aware that defendant committed his strike offense as a juvenile, but

nonetheless found that he did not fall outside the spirit of the Three St rikes

sentencing scheme . The trial court noted that defendant had a long and

6 All statutory r eferences are to the Penal Code unless noted.

7 People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497, 504.7

continuous history of offenses and that he committed the present offense,

second degree murder, shortly after his release from California Youth

Authority (CYA) where he had serve d 76 months for the strike offense

robbery

. The trial court sentenced defendant to an aggregate term of 55 years to

life : a principal term of 30 years to life (15 years to life doubled by the prior

strike) for second degree murder and a consecutive 25 years to life term on

the firearm enhancement in count 1 ; concurrent high terms for the assault

offense (nine years, doubled to 18 years by the prior strike offense) and the

firearm enhancement (10 years) in count 2 , punishment for which was stayed

under section 654.

Defendant appealed

. The First Appeal

In his first appeal , represented by attorney Laura Kelly , the attorney

who represents him here, defendant filed a 118

- page opening brief that had

five arguments: (1) discriminatory exercise of peremptory challenges in

violation of Ba t son / Wheeler 8 ; (2) insufficiency of the evidence for the assault

conviction ; (3) prosecutorial misconduct in closing argument ; (4) the sentence

violated the Eighth Amendment and section 17 of the California

Cons titution ; and (5) use of a juvenile adjudication as a strike violated

defendant’s right to jury trial. On August 2, 2018, we filed our unpublished

opinion rejecting all five arguments.

During the pendency of the appeal, the Governor signed Senate Bill No.

620, effective January 1, 2018

, which amended section 12022.53 to give the

trial court the authority to strike in the interests of justice a firearm

8 Ba t son v. Kentucky ( 1986) 476 U.S. 79; People v. Wheeler (1978)
22 Cal.3d 258.8

enhancement allegation found true under that statute. ( Stats. 201 7 , ch. 682

, § 2

. ) In supplemental br iefing, defendant asserted that the amendment

applied to him because his case was not yet final, and that the matter had to

be remanded to afford the trial court the opportunity to exercise its discretion

to strike the firearm enhancement that was no longe r mandatory under

s e ction 12022.53

. In the concluding three paragraphs of our opinion, we addressed

defendant’s claim:

“The Attorney General does not contest most of defendant’s reasoning.

But he does believe that comments made by the trial court at the t ime of

sentencing establish that it would not exercise its new discretion in

defendant’s favor. The Attorney General’s logic is not sufficiently persuasive.

“As the Attorney General points out, at the time of sentencing the court

denied defendant’s motion to strike his juvenile prior in accordance with

People v. Superior Court ( Romero ) (19 9 6) 13 Cal.4th 497 , concluding: ‘From

his juvenile probation, he had an opportunity to rehabilitate himself or seek

some sort of rehabilitation. His crimes continued, u ndeterred. Also, he had a

lengthy 76

- month term a t CYA . That did not deter him from continued

criminal conduct as an adult. [¶] So for those reason s, in terms of applying

the applicable law here, the Romero motion is denied.’

“Still, we cannot agree th at remand would be an idle act as a matter of

law . The court ‘recognize[d] that the defendant did not intend to kill this

particular victim.’ And it ran the sentence on the assault conviction

concurrently with the murder sentence. It may not be likely t hat the court

will give defendant another break, but it may. At bottom, this court feels a

deep reluctance to assume that it knows how a trial court would have9

exercised a discretion it did not know it possessed. In short, we are loathe to

put words in t he trial court’s mouth.”

And with that, we set forth ou r disposition: “The c ause is remanded for

the sole purpose of allowing the trial court to exercise its discretion under

subdivision (h) of section 12022.53. The judgment of conviction is affirmed in

all other respects.”

Resentencing

The resentencing came on for hearing on August 30, 2019

, before the

Honorable Tim Kam , the same judge who had presided over defendant’s trial

and sentencing . Defendant was represented by attorney Dustin Gordon , the

People by Deputy District Attorney Paul Sequeira

. Prior to the resentencing hearing, Mr. Gordon filed on behalf of

defendant a sentencing memorandum that inclusive of exhibits was 25 pages

long

. D espite the limited nature of our reman d, the sentencing memorandum

co ntained four arguments: (1) the court should strike defendant’s prior

juvenile robbery adjudication pursuant to section 1385 because his prior

juvenile strike does not warrant him being denied eligibility for relief

pursuant to section 3051 ; (2) the limitation contained in section 3051,

subdivision (h) prohibiting youthful offenders who have a prior juvenile strike

from receiving relief violates the equal protection clause of the United States

and California Constitutions ; (3 ) the court sho uld strike the gun

enhancements “due to [defendant’s] age and the fact that he did not intend to

kill anyone ”; and (4) defendant’s sentence amounts to cruel and unusual

punishment. The fourth argument had been specifically rejected in our

opinion, although the argument, which we described as “pro forma,” had not

been fashioned in light of section 3051.10

Defendant’s sentencing memorandum also referred to the 2008 offense,

for which defendant was adjudicated. And it also acknowledged this other

activity: “Other than the juvenile robbery conviction [defendant] had two

residential burglary adjudications tha t were sustained, both when he was 13

years old. It appeared he also had a juvenile petition when he was 16 years

old for violations o f Penal Code sections 459, 496, and 243[, subdivision ]

(d)(1). [¶] The only adult conviction was a felony hit and run, which

[defendant] was pending sentencing at the time of his instant offense.”

Then, after quoting the Penal Code section that caused our remand, the

sentencing memorandum asserted this : “In the instant action the interests of justice favor striking the pe rsonal

use enhancements which will allow the court to fashion a more appropriate

sentence. In the instant action it is undisputed that [defendant] did not

intend to kill anyone. Yet the sentence that was previously imposed, 55 years

to life is tantamount to a sentence of life in prison without parole considering

that [defendant] will not be eligible for parole until he is 79

- years

- old. A

sentence of life in prison without parole is not warranted in a case where the

defendant did not have the intent to ki ll anyone.

“[Defendant]’s criminal history does not indicate that he is beyond

rehabilitation. His only other adult conviction is for a hit and run. His father

has turned his life around and has reconnected to [defendant]. [Citation.] He

has family tha t supports him and he has two kids that he hopes to see one

day when he is not in custody. Moreover, [defendant] recognizes that his own

choices and poor decisions have put him in this situation. [Citation.]”

Defendant’s sentencing memorandum also cited to Miller v. Alabama

(2012) 567 U.S. 460 ( Miller ), Graham v. Florida (2010) 560 U.S. 48 ( Graham )

, and People v. Caballero ( 2012) 55 Cal.4th 262 ( Caballero

. )11

Th e d istrict a ttorney filed a very brief opposition, responding only to

the third argument, seeki ng to strike the g un enhancement. The opposition

focused on defendant’s criminal history as a juvenile , and in its concluding

five

- line argument

— entitled “The Defendant’s Character and Prospects

Dictate The Gun Enhancement Not Be Stricken”

— assert ed that “defendant is

a reckless, violent killer. . . . [I]t appears likely that defendant will k ill again.

The defendant presents an extreme danger to society. The imposition of the

g un enhancement

. . . is just and appropriate .” Nothing was said about

defendant’s age, or any factors relating to it , nor was anything said about

section 3051

. And the district attorney did not address, much less dispute,

the fact that the firearm enhancement meant that defendant would not be

eligible for parole until he wa s 79 years old.

Defendant filed a reply to the opposition, responding to the g un
enhancement argument

, and also reiterating arguments that the use of the

prior juvenile adjudication to enhance his sentence violates defendant’s rights

“under the Fifth, Sixt h and Fourteenth Amendments.” And as particularly

apt her e , defendant’s reply said this: “In contrast the stated purpose of

Senate Bill 620 is to allow courts to strike the g un enhancements when it

would serve the ‘interests of justice .’ (See Penal Code section 12022.53 (g).)

Senate Bill 620 has given the courts discretion that they did not have prior to

the passage of the law. Thus, unlike the three strikes law which was passed

to enhance punishments for repeat offenders, Senate Bill 620 was passed to

give courts discretion to impose a lesser sentence when it satisfied the

interests of justice. Additionally, the passage of Senate Bill 620 cannot be

viewed in a vacuum. Over the past eight years several laws have been

passed which have lessened punishm ent, i.e., the realignment act (allowing

‘prison’ sentences for some crimes to be served at county jail and on12

supervised release ), Proposition 47 (which reclassified certain crimes from

felonies to misdemeanors and allowed courts to resentence some people given

a third strike sentence ), Senate Bill 180 (otherwise known as the ‘RISE Act’

repealing three

- year drug priors ) , and Senate Bill 1437 (abolishing the

felony

- murder r ule in certain circumstances). It is against this backdrop that

the court should take into consideration the practical impact of not striking

the gun enhancement

. “As stated in defendant’s sentencing memorandum a sentence of 55

years to life is tantamount to a sentence of life without parole for [defendant].

For someone as youn g as [defendant ], where there was no intent to kill, there

should be a chance at redemption.”

The hearing on August 30 began with the court noting its “new

discretion under the la w,” and also advising counsel that it had read both

parties ’ resentencing ma terials, including the letters submitted on behalf of

defendant. The court then asked Mr. Gordon if he had any additional

comments , who then spent the next several pages in the reporter’s transcript

on issues unrelated to our remand, first noting that the “People’s brief didn’t

address my Romero argument f or the constitutional argument ” and then

proceeding to the equal protection claim . Mr. Gordon then turned to the

argument about striking the enhancement , which he argued for three more

pages, in the cour se of which he said this:

“Senate Bill 620 expanded or enhanced the court’s discretion, so I thin k

when the court is looking at whether it should exercise that discretion under

the newly passed law, I don’t think the mere fact the court chose not to strike

the strike previously, I don’t think that carries the day with the analysis here

because it’s different. I mean the standard i s the further justice or interest of

justice, which is the underlying standard for [Penal Code section] 1385, it’s13

somewhat info rmed by the discretion the court is granting. So in the Romero

situation when the court is choosing whether to exercise discretion under

[Penal Code section] 1385, kin d of guiding the court’s discretion is does

[defendant] fall outside the spirit of the t hree strikes law. That same

analysis does not apply here when the court is considering whether to strike

the gun enhancement.

“I think the court’s discretion is much broader, and the court’s

consideration of the factors is much broader. What I mean by that, it

dovetails what I would say is the theme of my brief. The current sentence for

[defendant] does not provide a meaningful opportunity to be released, and I

think when you consider the state of the law how things have changed over

the past seven t o eight years

, I would say you consider the youthful offender

statute the reason why that law was passed and this law was passed, it

would be well within the court’s discretion to strike the gun enhancement.

Even if the court only made that decision, not ge tting into my other

argument, [defendant] has a sentence of 30 to life. Again, that means he just

has the opportunity to be paroled. ”

Deputy District Attorn ey Se q u e ira responded briefly , followed by brief

reply by Mr. Gordon, who reiterated he thought h is other arguments were

properly before the court. Following that, defendant apologized to the

victim’s family and told the court he regretted his actions.

The court announced that it appreciated and considered the arguments

from both sides, and then sai d this: “ I recognize where I have discretion. The

c ourt has given me new discretion, and the arguments you make, Mr.

Gordon, are, one, to strike the juvenile strike . I conducted the Romero motion

previously, but you’re asking me to reconsider Romero in light of the youthful

offender act. You’re asking me to look at the equal protection side of 3051 PC14

in the context you stated it, and you’re asking me to look at the issue of

whether juvenile strike is a valid strike. That issue is on review to the U.S.

Supreme Court. ”

Mr. Gordon briefly acknowledged that “ The Nguyen decision is 2009

. [ 9 ]

It’s ten years ago. I don’t disagree with Mr. S equeira at all. It’s settled law.”

And then the court announced its decision: “Those are the issues you’re

asking me to look at in this context. At this point applying the law to this

case and understanding I have discretion I am going to deny that request. I

think Mr. Sequeira raises a very good point. We often do forget about those

who have been le ft behind, but you know my Romero factors. I listed those

previously in terms of his prior conviction as a juvenile. There [ we re] other

incidents if I recall. I did re

- read the Court of Appeal opinion and saw the

comments that I made, so I’ll stand by t hose. Considering the facts of this

case, I’ll be pointing those out a little later here as well. The y do not warrant

striking the strike, and my analysis under Romero has not changed in light of

PC 3051 referencing now someone under 25 their brains are not fully

developed. Looking at that picture to the extent I can consider this issue

given it was not remanded for this issue, I would still deny it. I’m not sure

this issue is properly before the court as it was not sent back on remand. If it

is, I sti ll decline to strike the strike here in light of the previous history, just

the underlying facts of this case.

“ I recognize [defendant] had a very tragic childhood as laid out in the

paperwork here. In my view it would not warrant striking the juvenile

st rike. In terms of the equal protection argument and addressing the Nguyen

issues, again, those are not remanded to the trial court for those issues.

Technically I don’t think they are before me. It they are, I’m denying it as

9 People v. Nguyen (2009) 46 Cal.4th 1007.15

well. The Legislature set forth the preferen ce in [section] 3055 to further

punish individuals with a strike and could be rationally based on desire to

punish repeat offenders. I’m not sure that issue is before me, but that is my

thought on that. Similarly, Nguyen is settled law. If that law changes, you

make your record and seek review to the extent the law allows you to at that

point. On the 12022.53 (d) gun enhancement and 120 22.5 (a) enhancement,

that is before the court.

“I heard your ar guments. I don’t think it’s appropri ate to strike that

allegation even in light of the defendant’s life as listed or described in the

papers. This was what strikes me and what stands out is this was over a

discussion or order , whatever you call it, to move out of the house, get out of

the h ouse, whatever it might be. And that to me whe n I was thinking about

this falls within the normal range of things we just have to deal with in life.

It’s not particularly egregious or outlandish to be asked to move out, but

when you respond in this fashion firing shots behind a closed door ultimately

killing someone, that is very, very dangerous. And it’s what I think the

statute is designed to punish, this sort of conduct. Where is the

mitigation

. . . ? You got someone who is killed in some fashion over

something that never should have led to that.

“So I just don’t see where there would be valid legal grounds or grounds

in the interest of justice to strike this enhancement. This is what the

Legislature contemplated for this very type of offense, and as to [the] cruel

and unusual punishment argument, again, this was not remanded to the

court for this issue. So I’m not conceding

— or you raised i t in the context of

new changes in the law

, [section] 3051 , so I’ll address it. Again, I’m not sure

if it’s in front of me to the extent whether I would have to consider whether

this is disproportionate sentence to all other similar type crime or are there16

more serious crimes that are punished less severe than this one, some

unfairness in that regar d, shock the conscious or offend human dignity. This

is what the Legislature imposed. I don’t find it disproportionate nor cruel

and unusual under the law. I mean, it is sad. There is a sad situation on

both sides here, but this is in my view proper un der the law, this sentence.

So for those reasons I am denying the motion. His sentence will remain as

previously imposed.”

At no point during the hearing did the trial court even mention Miller

, Graham , or C

a ball ero

. Immediately following the court’s ru ling above , Mr. Gordon raised

another argument, one he had not made before. This is what occurred:

“MR. GORDON: There is one issue I forgot to mention because it’s not

a s weighty as the other issues. There is a new case regarding fines and fees,

Peo ple v. Due ñ as ( 2019) 30 Cal.App.5th 1157. When I looked at the judgment

from the sentencing it looked like the only fee the court imposed was $300,

the restitution fund fine. If I read Dueñas correctly, the court can impose

that. But it has to be stayed until it’s demonstrated he has ability to pay. I

apologize for not putting this in the brief. With the other issues this slipped

my mind, so I would ask the court in regards to the restitution fund fine stay
it pending hearing about his ability to pay. ”

This colloquy followed:

“THE COURT: I have not read Dueñas . I heard it. It does ins truct

the court to s t ay this fine at this point?

“MR. GORDON: That’s how I read it. You can put it over for that sole

issue.

“THE COURT: Why don’t you approach, and I’ll take a look at that.

So the operative language here, and again I know we’re ta lking about a17

minimum fine, but it says we also hold that although Penal C o de section

1202.4 bars consideration of the defendant’s ability to pay unless the judge is

considering increasing the fee over the statutory minimum, the execution of

any restitution fine imposed under this statute must be stayed unless I hold

ina bility to pay. $300 is the statutory minimum.

“MR. GORDON: It is.

“THE COURT: So that scenario I don’t have to stay it.

“MR. GORDON: Maybe I misread it . I was under the impression the

court had to impose it but s t ay pending ability to pay.

“THE COU RT: I will rely on that and I read the law as requiring that

only if I impose above the minimum statutory fine under 1202.4, which $300

is the minimum. So deny your request at this point on that. Those are the

orders. So [defendant] will be remanded f or delivery back to [the]

Department of Corrections to serve his sentence. Thank you.

“MR. SEQUEIRA: Thank you.”

The Second Appeal

On April 2, 2020, again represented by Ms. Kelly, defendant filed his

opening brief on this appeal. This brief has six arguments : (1) the trial court

abused its discretion in refusing to strike the enhancement; (2) section 3051

lacks a rational basis to the extent it denies youth offender pa role hearings to

inmates with a juvenile strike, and violate s equal protection; (3) the trial

court abused its discretion in refusing to strike the juvenile strike;

(4) defendant’s sentence violates the Eighth Amendment and Article 1,

section 17 of the Cal ifornia Constitution; (5) the use of defendant’s juvenile

adjudication as a strike prior violated his right to a jury trial under the Sixth

Amendment ; and (6) the tr i al court erred in refusing to stay the section

1202.4 fine absent a determination that def endant is able to pay the fine.18

On April 2, the same day defendant’s opening brief was filed, Ms. Kelly

filed on his behalf a petition for writ of habeas corpus ( p etition)

. The petition

is 79 pages, included within which are five declarations

, of: (1) R obin

Ke en ey, defendant’s trial counsel ; (2) defendant; (3) defendant’s father; (4)

Mr. Gordon , defendant’s attorney following remand; and (5) Ms. Kelly,

defendant’s attorney on the first appeal, this appeal, and the petition. On

August 28, Ms. Kell y filed a subsequent declaration concerning Mr. Keeney.

The petition has four arguments, numbered IV through VII in the table

of contents, which arguments we quote verbatim:

“IV. Trial counsel was ineffective in failing to inform Mr. Ceballos of a

potential plea agreement with a sentence of 17 or 18 years and in failing to
advise him to pursue such a plea bargain. [¶] . . . [¶]

“V. Penal Code section 3051, subdivision (h), violates Equal Protection

to the extent it denies youth offender parole hea rings to inmates with

juvenile strikes. [¶] . . . [¶]

“VI. The trial court abused its discretion in refusing to strike Mr.

Ceballos’s juvenile strike. [¶] . . . [¶]
“VII. Mr. Ceballos’s sentence, which does not afford a meaningful

opportunity for relea se in his lifetime, violates the Eighth Amendment and

Article I, section 17 of the California Constitution.”

DISCUSSION

Introduction to the Analysis

Referring to the arguments in defendant’s opening brief on appeal and

in his petition, it is immediately a pparent that two of the arguments in his

appeal and in his petition are identical to arguments defendant made in his

first appeal

, which arguments we rejected. As to these arguments, defendant19

acknowledges that they are set forth for purposes of exhaustio n , and nothing

more will be said about them here.

The result is that what remains on the appeal are four arguments, only

one of which, the first, deals with the issue that caused our limited remand.

As to the other arguments, the People assert that at least two of them,

arguments numbered two (equal prot ection) and five (violation of right to jury

trial) were waived, as the arguments could have been made in the first

appeal

. Defendant vigorously disagrees, the result of which is that the

parties devote significant portions of their briefs to the issue of waiver

. We will not weigh in on the issue here, for several reasons.

First, until the outcome of defendant’s petition for writ of habeas

corpus is known, defendant’s sentence situation may be different tha n it

currently is.

Second, and as noted , the arguments were not fully briefed below, and

the trial court did not have the benefit of the applicable law.

Third, defendant suggests the issue s are cognizable in his petition for

writ of habeas corpus

. We thus turn to the two issues that are proper ly before us, beginning

with the trial court’s refusal to strike the arming enhancement.

The Refusal to Strike the Arming Enhancement Did Not Take Into Account All Applicable Principles
The amended section 12022.53 provides that “ (h) The court may, in the

interest of justice pursuant to Section 1385 and at the time of sentencing,

strike or dismiss an enhancement otherwise required to be imposed by this

section. The authority provided by this subdivision applies to any
resentencing that may occur pursua nt to any other law. ” A s quoted, o ur

remand was for the court to “exercise its discretion under subdivision (h)

, ”

and a s defendant acknowledges we review the ruling for abuse of discretion.20

The Law of Discretion

D efendant ’s brief sets forth some boilerplate principles of discretion

, and what is involved in its exercise. But the brief does not set forth the

applicable principles governing what is its abuse

, which has been described

in terms of a decision that “exceeds the bounds of reason” ( People v. Beames

(2007) 40 Cal. 4 th 907, 920 ), or one that is arbitrary, capricious, patently

absurd, or even whimsical. (See, e.g., People v. Bryant, Smith and Wheeler

(2014) 60 Cal.4 th 335, 390 [“ ‘ “ arbitrary, capricious, or patently absurd ” ’ ”];

People v. Benavides (2005) 35 Cal.4th 69, 88 [ruling “falls ‘outside the bounds

of reason’ ”]; People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614
[“arbitrary, whimsical, or capricious”].) In its most recent observation on the

subject, our Supreme Court said that “A ruling that constitutes an abuse of

discretion has been described as on e that is ‘so irrational or arbitrary that no

reasonable person could agree with it

. ’ ” ( Sargon Enterprises, In c

. v.
University of Southern California (2012) 55 Cal.4th 747, 773 ( Sargon ) .)

If we were to apply those principles here, we could not conclude the

trial court abused its discretion

. But there is more to abuse of discretion than arbitrary, whimsical

, or
capricious

, as we discussed in People v. Jacobs (2007 ) 156 Cal.App.4th 728,

736

– 738:

“ [T] here is other language which guides us here, illustrated by that in

City of Sacramento v. Drew ( 1989) 207 Cal.App.3d 1287, 1297 ( Drew ), where

the Third Appellate District rejected the contention that the sole test of abuse

of discretion was whether the trial court’s action was ‘whimsical, arbitrary, or capricious,’ stating as follows: ‘This pejorative boilerplate is misleading since

it implies that in every case in which a trial court is reversed for an abuse of21

discretion its action was utterly irrational. Although irrationality is beyond

the legal pale it does not mark the legal boundaries which fence in discretion .’

“Elaborating, the Court of Appeal further explained: ‘Very little of

general significance can be said about discretion

. “ ‘The discretion of a trial

judge is no t a whimsical, uncontrolled power, but a legal discretion, which is

subject to the limitati ons of legal principles governing the subject of its

action, and to reversal on appeal where no reasonable basis for the action is

shown. [Citation.] ’ ” ( Westside Community for Independent Living, Inc. v.

Obledo (198[3]) 33 Cal.3d 348, 355

, citing to 6 Witkin, Cal Procedure (2d ed.

1971) Appeal, § 244.) The scope of discretion always resides in the particular

law being applied, i.e., in the “legal principles governing the subject of [the]

action

. . . .” Action that transgresses the confi nes of the applicable principles

of law is outside the scope of discretion and we call such action an “abuse ” of

discretion. [Citation.]’ ( Drew

, supra , 207 Cal.App.3d at p. 1297.) Finally, as

Drew noted, the ‘legal principles that govern the subject of discretionary

action vary greatly with context. [Citation.] They are derived from the

common law or statutes under which discretion is conferred.’ ( Id. at p. 1298.)

[¶]

. . . [¶]

“ In Concord Commu nities v. City of Concord (2001) 91 Cal.App.4th

140 7

, 1417 our colleagues in Division Four of this court observed that ‘Abuse

of discretion has at least two components: a factual component

. . . and a
legal component. [Citation.] This legal component of discretion was best

explained long ago in Bailey v. Taaff e ( 1866) 29 Cal. 422, 424: “The discretion

intended, however, is not a capricious or arbitrary discretion, but an
impartial discretion, guided and controlled in its exercise by fixed legal

principles. It is not a mental discretion, to be exercised ex gra tia

, but a legal

discretion, to be exercised in conformity with the spirit of the law and in a22

manner to subserve and not to impede or defeat the ends of substantial

justice.

. . . ” ’

“All this is well described in Witkin where, likewise citing the still vital

Bailey v. Taaffe

, supra , 29 Cal. 422, 424, the author distills the principle as

follows: ‘Limits of Legal Discretion

. [¶] The discretion of a trial judge is not

a whimsical, uncontrolled power, but a legal discretion, which is subject to

the limitations of legal principles governing th e subject of its action, and to

reversal on appeal where no reasonable bas i s for the action is shown. (See

5 Am.Jur.2d, Appellate Review § 695.)

. . .’ (9 Witkin, Cal. Procedure (4th ed.

1997) Appeal, § 358, pp. 406

– 407.” 10

Some Guiding Legal Principles

As quoted, amended section 12022.53 gives the trial court authority to

strike a firearm enhancement “in the interests of justice

, ” a term

, we

conclude

, that in the circumstances here must include some consideration of

defendant’s age and the factors attend ant to it, as reflected in the spirit of

various developments in the law, including, by way of example, section 3051

. Section 3051 was enacted in recognition that “[e]xisting sentencing

laws do not distinguish youth from adults.” (Assem. Com. on Public Safety,

Analysis of Sen. Bill No. 260 (2013

– 2014 Reg. Sess.) July 2, 2013, p. 4.) The

purpose of the act was “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 show n that he

10 In Sargon , quoted above, the Supreme Court went on to endorse this expression of the standard: “ ‘ The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown. ’ ” ( Sargon

, supra , 55 Cal.4th at p. 773

, quoting 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 364, p. 420.)23

or she has been rehabilitated and gained maturity.” (Stats. 2013, ch. 312,

§ 1.)

“Despite the fact that the line between youth and adulthood has

traditionally been drawn at 18 years of age, recent amendments to

section 3051 recognize that the ma turity process does not end at 18 and in

many cases extends to at least 25 years of age. In 2015, relying on the

evolving understanding of brain development, the Legislature amended

section 3051 to provide relief for most offenders who committed their off enses

before reaching the age of 23. (Stats. 2015, ch. 471, § 1.) According to the

author of the amendment, ‘R ecent scientific evidence on adolescent and young

adult development and neuroscience shows that certain areas of the brain

— particularly those affecting judgment and decision

- making

— do not fully

develop until the early

- to

- mid

- 20s. Various studies by researchers from

Stanford University (2009), University of Alberta (2011), and the National

Institute o f Mental Health (2011) all confirm that the process of brain

development continues well beyond age 18. ’ (Sen. Com. on Public Safety,

Analysis of Sen. Bill No. 261 (2015

– 2016 Reg. Sess.) Apr. 28, 2015, p. 3.)”

( In re Jones (2019) 42 Cal.App.5th 477

, 484

– 485, conc. o pn. of Pollak, J.)

And Assembly Bill No. 1308, which became law on January 1, 2018,

raised the age limit for eligibility for relief under the Youth Offender Statute

to age 25

, doing so

, in the words of the legislative history

, because:

“ ‘ AB 1308 would align public policy with scientific research. This measure

would expand eligibility of the youth parole hearing process to certain

individuals who were 25 or under when they committed a crime for which

they received a lengthy or life sentence for a youth offender parole hearing.

Scientific evidence on adolescence and young adult development and

neuroscience shows that certain areas of the brain, particularly those24

affecting judgment and decision

- making, do not develop until the early

- to

mid

- 20s . Research has shown that the prefr ontal cortex doesn’t have nearly

the functional capacity at age 18 as it does at 25. The prefrontal cortex is

responsible for a variety of important functions of the brain including:

attention, complex planning, decision making, impulse control, logical

thinking , organized thinking, personality development, risk management,

and short

- term memory . These functions are highly relevant to criminal

behavior and culpability. [¶] Since the passage of [Senate Bill No.] 260 and

[Senate Bill No.] 261 motivation to focus on rehabilitation has increased. An

offender is more likely to enroll in school, drop out of a gang, or participate in

positive programs if they can sit before a parole board sooner, if at all, and

have a chance of being released. ’ ” ( Assem. Com

. on Public Safety

, Analysis of

Assem. Bill No. 1308 , as amended March 30, 2017 (2017

– 2018 Reg. Sess.)

Apr. 25, 2017, pp. 2

– 3 .)

It is apparent from the lengthy quotation of the trial court’s ruling set

forth above that the court made no analysis whether t he “interests of justice”

included any analysis of defendant’s age

, or any factors relating to it . More

specifically, other than a passing reference to defendant’s age in connection

with the court ’ s prior Romero ruling over two years before

— “my analysis

under Romero has not changed in light of Penal Code section 3051

referencing now someone under 25 their brains are not fully developed”

— the

trial court never mentioned, let alone analyzed

, the numerous factors Miller

,

supra , 567 U.S. 460 iden tified as bearing on the “ ‘ distinctive attributes of

youth ’ and how these attributes ‘diminish[ed] the penological justifications

for imposing the harshest sentences

. . . . ’ ” ( In re Kirchner (2017) 2 Cal.5th

1040, 1042

. ) This would include , for exampl e, evaluation of the

circumstances pertaining to defendant’s “immaturity, impetuosity, and25

failure to appreciate risks and consequences” at the time of his offense and to

“the family and home environment that surround[ed] [him]

— and from which

he [may not h ave been able to] usually extricate himself

— no matter how

brutal and or dysfunctional.” ( Miller

, supra, 567 U.S. at p. 477.)

In s um , it is clear the trial court did not analyze the situation “ in

conformity with the spirit of the law and in a manner to subserve and not to

impede or defeat the ends of substantial justice.

. . .” ( Bailey v.
Taaffe

, supra , 29 Cal. at p. 424.) 11 A nd we remand again, so it can do so

,

11 For example, in refusing to strike the enhancement, the trial court stated it considered defendant’s “life as listed or described in the papers.” The trial court observed that the event that preceded the shooting

— defendant being told to move out of the house

— was not particularly provocativ e but rather was “within the normal range of things we just have to deal with in life,” and defendant’s response was “very, very dangerous.” A s to this “dangerous” comment, we note that all cases involving the possible imposition of a firearm enhancement necessarily involve “dangerous” actions. But the amendment to section 12022.53, subdivision (h)

— permitting a trial court to exercise its discretion in the imposition of a 25

- year enhancement

— is a clear message to trial courts that the punishment is not ap propriate in every case, including an implied malice second degree murder conviction.
The court further noted that the firearm enhancement was designed to punish this sort of behavior and was not disproportionate to the crime, but did not consider its appl ication to a person of defendant’s age and in defendant’s circumstances, for whom the firearm enhancement, in light of the rest of the sentence, would result in the denial of parole until age 79

— resulting in a sentence commonly called a “de facto LWOP.”

Mo reover, although the trial court adverted to defendant’s “ life as . . . described in the papers,” and was aware that defendant had a history of juvenile offenses, beginning when he was 13 , the trial court did not consider the implications of defendant’s ag e or the facts of his juvenile strike : a robbery committed with other teenagers ; n o weapon was used ; there was only minimal injury; and defendant was neither the instigator nor the main

aggressor.26

especially in light of the court’s comment that defendant was “not a lost

cause.” 12

The Refusal to Stay the Minimum Restitution Fine was Not Error

At defendant’s original sentencing in May 2016, the trial court imposed

the minimum restitution fine of $300 . As noted, at the re sentencing hearing

defendant belatedly contended he wa s entitled to have that restitution fine

stayed or

, in the alternative, stricken, pending a hearing on his ability to pay

.
T he trial court rejected the argument, a rejection defendant appeals here.

As indicated above, the issue of ability was raised orally at the end of

the sentencing hearing was there, as it is here, based on People v

. Dueñas

,

supra , 30 Cal.App.5th 1157 ( Dueñas )

. Dueñas involved the now fami liar case

of Velia Dueñas , a homeless, indig ent person who was on her fourth

12 At the time of defendant’s original sentencing

— before it had the legal discretion to not impose the 25

- year firearm enhancement

— the trial court stated, “I do want to take note of the defendant’s letter, something that is striking and worthy of note, where he writes , ‘since th at is not the ca se’

— regarding he could have taken some time to reflect and none of this would have happened

— ‘since that is not the case, I pray that my punishment gives my victims ’ family some type of closure for their loss. Also, in deciding my punishment, I ask humbly that you are able to recognize and believe that I am in no way a lost cause.’ ”
The trial court continued, “That’s worthy to note, and that’s certainly

— I recognize the sentence is what it is, but that is worth noting. I don’t think anyone here, at this po int, thinks you are a lost cause Mr. Ceballos. You have other opportunities. I recognized the pain of this sentence, as well. But you are not a lost cause , and, at least, I want you to know that before leaving here today.”

At the time the trial court m ade these remarks about defendant not being a “lost cause” at the age of 24, it was required to impose the firearm enhancement. Our r emand gives the trial court the opportunity to consider this issue anew in light of all of the factors discussed in this o pinion.27

conviction for driving with a suspended license , placed on probation and, yet

again, ordered to pay mandatory assessments and fi nes , including a $150

restitution fine under section 1202.4 , subdivision (c)

. 13 T he court held that

“although the trial court is required by Penal Code section 1202.4 to impose a

restitution fine, the court must stay the execution of the fine until and unless

the People demonstrate that the defendant has the ability to pay the fine.”

( Dueñas

, supra , 30 Cal.App.5th at p. 11 72 .)

Dueñas has spawned a plethora of cases, many of which have

distinguished it on the facts before them, with many others holding that

Dueñas was wrongly decided

, several of which cases are pending before the

Suprem e Court. A relatively early case illustrating all this is the 2

- 1 opinion

in People v. Kopp (2019) 38 Cal.App. 5th 47, review granted Nov

. 13, 2019,

S2578 44 (

Kopp ), where the majority opinion an alyzed the issue based on the

distinction between fines and ch a rges that are punitive in nature and those

that are not. And as to the former, the majority held they should be

challenged under the excessive fines clauses in the United States and

California Constitutions. ( Id. at pp. 96

– 97.)

A recent case along those lines is People v. Cowan (2020)

47 Cal.App.5th 32 , review granted June 17 , 2020, S261952

, where our

colleagues in Division Four have a lengthy discussion of Dueñas and its

progeny , including a collection of “the Dueñas critics” ( Cow a n , supra ,

13 Section 1202.4 provides that “[t]he court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant’s inability to pay shall not be considered a co mpelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) o f subdivision (b).”28

47 Cal.App.5th at p. 39 ), and adopts the excessive f ines approach. ( Id. at p.
42.) We adopt this view, concluding that the approach taken in Kopp is

correct , where the court explained this distinction: “[W]e do not follow the

court’s approach to restitution fines in Dueñas. There, the court

acknowledged that the restitution fine under section 1202.4 is ‘additional

punishment for a crime.’ ( Dueñas

, supra , 30 Cal.App.5th at p. 1169.) Yet,

the court still focused solely on a defendant’ s ability to pay in determining

whether such a punitive fine is constitutional. To this end, the court held:

‘[A]lthough Penal Code section 1202.4 bars consideration of a defendant’s

ability to pay unless the judge is considering increasing the fee over the

statutory minimum , the execution of any restitution fine imposed under this

statute must be stayed unless and until the trial court holds an ability to pay

hearing and concludes that the defendant has the present ability to pay the

restitution fine. ’ ( Dueñas

, supra , 30 Cal.App.5th at p. 1164.) We disagree

that this approach should apply to all punitive fines in the first instance.

Instead, because these fines are intended to punish defendants, we agree

with the People that a defendant should challeng e such fines under the

excessive fines clause of the Eighth Amendment of the federal Constitution

and A rticle I, section 17 of the California Constitution. Put differently, there

is no due process requirement that the court hold an ability to pay hearing

before imposing a punitive fine and only im pose the fine if it determines the

defendant can afford to pay it.” ( Kopp

, supra , 38 Cal.App.5th at pp. 96

– 97.)

And s o analyzed, the $300 minimum restitution fine imposed here is

not excessive. A fine is excessi ve under the Eighth Amendment “if it is

grossly disproportional to the gravity of a defendant’s offense” ( United

States v. Bajakajian (1998) 524 U.S. 321, 334), an analysis made by

considering four factors: “ ‘ (1) the defendant’s culpability; (2) the relationship29

between the harm and the penalty; (3) the penalties imposed in similar

statutes; and (4) the defendant’s ability to pay. ’ ” ( People v. Aviles ( 2019)

39 Cal.App.5th 1055, 1070, citing People ex. r el. Lo ckyer v. R.J. Reynolds

Tobacco Co. (2005) 37 Cal.4th 707, 728.)

Here, defendant was convicted of second degree murder after he fired

eight shots through a closed door of a bedroom occupied by five people, killing

Troy in the presence of his son, for which defendant was sentenced to 55

years to life. In light of this, the $300 restitution fine

— the minimum fine

provided for by statute

— was minor when compared to his sentence and the

gravity of the offenses

. Finally, we note that even if the decision were err or, it would have been

harmless error, because defendant will be in custody long enough to pay the

$300 in issue here. ( People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)

Defendant was sentenced to a lengthy prison term of 55 years to life ; at the

time o f sentencing, he was 29 years old ; and no thing in the record points to

any circumstance casting a doubt on his ability to obtain the funds for

payment in the future

, future earnings, including prison wages, that are

relevant as a constitutional matter. (S ee People v. Aviles

, supra ,
39 Cal.App.5th at p. 1076 ; § 1202.4, subd. (d) [in considering a defendant’s

inability to pay as a factor in setting the amount of the fine in excess of the

minimum fine, “[c]onsideration of a def endant’s inability to pay may include

his or her future earning capacity”] .)

The Petition Will Be Heard in the Superior Court

In response to defendant’s appeal and his petition for writ of habeas

corpus, the Attorney General has filed a combined respondent’s brief and

informal oppositi on to the petition. The opposition portion of the brief

, which

is 25

- pages long, argues that the petition should be summarily denied on the30

basis it fails to allege a prima facie showing of ineffective assistance of

counsel. It also asserts “as a thresho ld matter” that it would be “appropriate

to deny the petition without prejudice to allow the lower court to weigh in on

the issues raised .”

In support, r espondent cites the recent case of Robinson v. Lewis (2020)

9 Cal.5th 883, 895 ( Robinson ), where a un animous Supreme Court observed

as follows: “All courts in California have original habeas corpus jurisdiction,

but that does not mean all courts must exercise it in all circumstances. A

higher court ‘has discretion to deny without prejudice a habeas corp us petition that was not filed first in a proper lower court.’ [Citations.] For this

reason, the United States Supreme Court has observed that ‘California’s

habeas rules lead a prisoner ordinarily to file a petition in a lower court first.’

( Carey v. Sa

ffold [( 2002)] 536 U.S. [214,] 221.) We agree. Petitioners should

first file a petition for a writ of habeas corpus challenging a judgment in the

superior court that rendered the judgment . If the superior court denies the

petition, the petitioner may th en file a new petition in the Court of Appeal.

[F n. omitted .] ” 14

After citing Robinson , respondent’s brief goes on: “As the Court of

Appeal observed in Ex parte Elias , ‘particularly where the taking of evidence

is involved, the local court is often better able to render timely and effective

relief than a court of appeal, and it is for this reason that appellate courts

frequently refuse to issue the writ unless applicat ion has first been made

therefor to the superior court or unless a good reason is shown in the petition

for failure to have made such application.’ ( Ex parte Elias (1962)

14 The footnote noted an exception that a “petition for a writ of habeas corpus may be filed in the Court of Appeal in the first instance if it is related to a pending direct appeal.” ( Robinson

, supra , 9 Cal.5th at p. 895, fn. 5.)31

209 Cal.App.2d 262, 264; see Rose v. Superior Court (2000) 81 Cal.App.4th

564, 574 [ ‘in the few petitions that require an evidentiary hearing, appellate

courts often transfer the petitions to the trial court ’].) [Defendant’s] petition

relies on multiple factual allegations involving local practices pertaining to

negotiation of pleas that a trial court is better equipped to hear and

evaluate.”

In his reply brief and informal reply to respondent’s opposition,

defendant states he does not object to the petition being transferred to the

superior court, acknowledging respondent’s position tha t an “evidentiary

hearing will be necessary to resolve [defendant’s] claim.” Indeed it will,

certainly on his primary claim of ineffective assistance of counsel.

By way of illustration, defendant’s claim includes that prior to trial his

counsel failed to inform him that the prosecutor had stated his office would

consider a plea offer of guilt in exchange for a sentence of 17 or 18 years, if

the defense initiated the request. Defendant also contends that counsel

failed to advise him that even if his defens e of involuntary manslaughter

were successful, he would face a sentence of 18 years based on his prior strike

offense and the gun enhancement. Moreover, defendant attaches a

declaration from trial counsel Robin Keeney, who among other things

testifies tha t he has “a vague memory” of his conversation with defendant

, and at another point testifies that his doctor told him his “cognition and

memory are impaired.” This, of course, raises fact

- intensive questions as to

Mr. Keeney’s cognitive function in 2015 w hen defendant’s trial was held.

Defendant’s claim would also include evidence as to the process and

procedure s of the district attorney’s office in 2014 and 2015, as well as the

particular position of the office in his case. Indeed, Ms. Kelly acknowledge s32

as much, testifying as to her attempt to contact the particular deputy district

attorney involved in defendant’s case

, and receiving no response. 15

DISPOSITION

The matter is remanded to the superior court to exercise its discretion

in light of all appli cable principles. The restitution fine is affirmed . A nd as
to the petition for writ of habeas corpus, as set forth in a separate order filed

today, an order to show cause will issue returnable in the superior court.

15 The deputy district atto rney is now a superior court judge.33 _________________________ Richman, J.

We concur:

_________________________ Kline, P. J.

_________________________ Miller , J.

People v. Ceballos ( A158314 )