P. v. Tuner

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Filed 6/27/17 P. v. Turner CA1/4
On rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
CASEY TURNER,
Defendant and Appellant.
___________________________
In re CASEY TURNER,
On Habeas Corpus.
A138649, A142829
(Alameda County
Super. Ct. No. 169011)
Defendant Casey Turner was 15 years old at the time of his charged offenses. He
appeals from his conviction of one count of second degree murder and two counts of
attempted murder, accompanied by sentence enhancements, for which he was sentenced
to 84 years to life. In a previous published opinion, we affirmed the judgment, except
that we modified his sentence to reflect that he would be entitled to a parole hearing after
serving 25 years in prison (Turner I). We then granted Turner’s petition for rehearing.
In our non-published published opinion in Turner II, we remanded the matter to the trial
court in light of People v. Franklin (2016) 63 Cal.4th 261, 283-284 (Franklin).
Following our opinion in Turner II, we granted Turner’s second petition for rehearing,
raising a claim under recently enacted Proposition 57.
In this third iteration, we repeat nearly verbatim the portions of Turner II setting
forth the facts of this case and rejecting, among other things, Turner’s contentions that his

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conviction should be reversed because the trial court committed instructional error and
concluding Turner’s challenge to the length of his sentence is moot because he now has a
statutory right to become eligible for parole after serving no more than 25 years of his
sentence. (Franklin, supra, 63 Cal.4th 261.) Finally, we conclude Turner is not entitled
to a hearing regarding his fitness to be tried as an adult. We shall affirm the judgment,
but, in accordance with Franklin, shall remand for the limited purpose of determining
whether Turner has had an adequate opportunity to make a record of mitigating evidence
that will be relevant at a future youth offender parole hearing.
I. EVIDENCE AT TRIAL
On March 27, 2010, 15-year-old Turner fired a gun at a group of young men,
killing James Allen, and grazing Damonte Starks, and Burnett Raven. Turner knew the
victims from high school. The incident took place in or near the parking lot of a local
community market in downtown Oakland.
Some time prior to the shootings, Turner and Allen had gotten into a fight at
school over a girl named Shay. Shay claimed that she was pregnant with Allen’s child.
However, according to Raven, Turner was telling people that Shay was “his woman.” On
the day of the shootings, Allen and several others, including his uncle or cousin Vito,
Raven,1 and Starks, had gotten together to make music at a friend’s home recording
studio. At some point, the group set out to find Turner to confront him about his
involvement with Allen’s “baby mama.” Starks was with the group, but insisted that he
had not left with them to “find” or to “hurt” Turner. According to Starks, the group took
a bus to an area near 90th Avenue and Bancroft, where they planned to “go mess with
some girls.”
Starks and Raven told the police that the group got off the bus and walked over to
two apartment complexes located between 92nd Avenue and 90th Avenue. Across the
1 Raven was unavailable to testify at trial due to an unrelated gunshot wound that
had left him unconscious with dim prospects of surviving. (Evid. Code § 1291.) A video
recording of his interview with the police was played and introduced into evidence. A
transcript of the interview is included in the record on appeal. Additionally, Raven’s
preliminary hearing testimony was read into evidence.

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street from the 90th Avenue side, was the Rowaid Market, also known as the “blue”
market, which had an adjacent parking lot. The group entered through a gate on the 92nd
Avenue side of the complexes and followed the walkway that ran between the complexes
to the 90th Avenue side. As they approached the 90th Avenue gate, Starks heard
gunshots and started running back along the walkway. It sounded like the shots were
coming from across the street at the blue market. He began to run because he was afraid
of being shot and killed. At some point, he heard a bullet hit the gate. As he ran, Starks
was “grazed” by a bullet. He felt the impact of the bullet and almost fell, but he kept
running. Starks ran up 92nd Avenue and got on a bus. Later, he checked his clothing
and found entry and exit holes in the upper left shoulder area of his hooded sweatshirt.
Starks remembered speaking to the police a couple of months after the shootings.
He did not recall telling the police he had seen two individuals across the street just
before the shooting began. Starks did not have a gun with him that day, and he did not
see Allen with a gun. He remembered that as he was running away, he heard some shots
that sounded “a little bit closer,” but he did not know from where the shots were coming.
Raven denied that he left with the group to go to the 90th Avenue apartments. He
claimed that he lied in his recorded police interview when he said that he and the group
left together bound for the 90th Avenue apartments. Rather, Raven claimed that he
arrived alone at the 90th Avenue apartments. He said he spent approximately 90 minutes
to two hours with a girl (whose name he could not recall and who he had not seen since),
and then left the building on the 90th Avenue side. Upon leaving the building, he saw
Allen and the rest of the group he had been with earlier that day. On the witness stand,
Raven denied that any words were exchanged among any members of the group when he
first saw them on 90th Avenue. However, during his recorded police interview, Raven
said: “James [Allen] and [Vito] was on the phone. Yeah, it was kind of, like, you could
tell like, they was getting into it. And they was, like, James [Allen] was, like, he was
about to kill Casey [Turner] ‘cause Casey was messing with his baby mama. [Vito] was,
like, ‘Let’s do it.’ And then, I was–we was walking–I was walking out the gate, so–we
could get back on the bus. So when I walked out the gate . . . Markus and Casey was

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walking toward us from across the street.”2 In his police interview, Raven also said that,
while he and the group were inside the apartment complex, he heard someone say, “I’m
gonna kill Casey.”
Raven saw Turner across the street in the parking lot of the blue market. Raven
noticed that Turner was tying the hood of his jacket while holding a gun in his hand. In
his recorded police interview, Raven said: “I seen Casey [Turner] throw his hood on, tie
it up. And I was like, ‘There go Casey right there.’ And then right after that, Casey
started shooting.” Raven later did not recall making this statement at the scene or during
his police interview. He explained that he was under the influence of marijuana at the
time of his interview with the police.
Raven testified that as he reached the 90th Avenue gate, Allen was right behind
him. Turner pointed the gun at Raven and started shooting. Raven ran back inside the
gate. Allen ducked and tried to cover himself as he ran back inside the gate. Raven said
Turner fired seven or eight shots. Raven “heard different guns” being shot. Raven did
not know what Allen was doing at this point because Raven was too worried about
getting out of the area. Raven did hear two or three gunshots coming from a direction
closer to him. Although Raven testified that he did not know that Allen had a gun with
him and he did not see him with a gun until after he saw him fall down, Raven initially
told police that he saw Allen fire three shots from a chrome revolver. Raven insisted,
however, that Turner fired first.
As Raven and Allen were running, Allen collapsed. Raven saw blood on Allen’s
shirt. Later, Raven realized that he had been grazed by a bullet there was a hole in his
hooded sweatshirt and his back was stinging.
Rickeisha Glenn lived in one of the apartment complexes between 90th Avenue
and 92nd Avenue. Around 2:00 p.m. on the day of the shootings, Glenn heard what
sounded like fireworks coming from the 90th Avenue side of the complex; she also heard
the sound of running. When she looked outside, she saw a person lying on the ground.
2 In his statement to the police, Raven said Turner had been with someone named
“Markus.”

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When she went to check on the person, she saw blood coming from his mouth and he was
unresponsive. She looked up and down the walkway that ran between the complexes.
She saw three black males running through the 92nd Avenue gate. Glenn saw Turner
running away from the 90th Avenue gate. Glenn knew Turner and saw him in the area on
a regular basis. She said boys in the area frequently ran around recklessly with guns,
acting if they were playing a game. Turner was one of those boys. Glenn later identified
Turner in a photographic lineup.
Officer Patrick Mahanay of the Oakland Police Department participated in the
investigation of the shootings. He recovered eight .25 caliber shell casings from the
parking lot next to the blue market. The casings were found approximately 120 feet from
the gate of the apartment complexes across the street. He found a nine millimeter shell
casing in front of apartment 11, which was located across the street from the blue market.
He also found a bullet hole in the exterior façade of apartment 11. Officer Mahanay
found two strike marks on a wall next to the front door of a residence, which was
consistent with shots being fired from inside the courtyard toward the market. He also
documented a bullet hold that went through the wall of an apartment. The bullet
penetrated another wall and could not be extracted. After officers finished searching the
courtyard near the apartment with the bullet hole, a scratched and bent .380 caliber casing
was discovered on the scene. Officer Mahanay thought this discovery was odd because
the casing had not been previously found and it appeared to be old.
The parties stipulated that Allen died of a gunshot wound to the torso. The bullet
entered the left front chest, passed through his heart, and was recovered on the left side of
his back.
No firearm was ever recovered. The casings and bullets that were recovered from
the scene were analyzed by criminalist Todd Weller of the Oakland Police Department.
He examined ten shell casings and two bullets. Weller’s analysis of the eight .25 caliber
casings suggested that they were all fired from the same gun. Weller did not have a
firearm that he could use to perform an eject pattern testing, which prevented him from
opining as to the specific weapon used. For the other two casings, one a nine millimeter

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Luger casing and the other a .380 caliber casing, Weller had nothing with which to
compare them. Both bullets he analyzed were .25 caliber, which he concluded were fired
from the same, unknown gun. Weller was unable to determine whether the .25 caliber
bullets came from the .25 caliber casings. He further explained that a .25 caliber
cartridge could be fired by a non-automatic handgun.
Sergeant Sean Fleming interviewed Starks in January 2011. In this interview,
Starks told Sergeant Fleming that Raven, who also went by the name of Bigs, as well, as
Vito, Vontay, Zay, and Skrilla, were present at the time Allen was shot. Starks said the
shooting started from across the street, near the blue market, where he saw two
individuals standing. Starks thought Allen had fired back about three times. Starks
identified Turner in a photographic lineup.
Also in January 2011, Sergeant Fleming interviewed Raven. Raven said that
Starks, also known as Little Bigs, Zay, Vontay, and Vito were with him at the time of the
shootings. Zay, Vontay, and Vito declined to cooperate with the police. Raven told
Sergeant Fleming that Turner started shooting first from the parking lot across the street,
as Raven and the others were leaving the 90th Avenue gate. Raven said “everything was,
like, unexpected, kind of.” Allen started shooting back from behind the gate, firing his
gun three times. During the exchange of gunfire, a bullet grazed Raven’s back. Raven
told Sergeant Fleming that he was unaware that Allen had a gun with him that day; he did
not see Allen’s gun, a chrome revolver, until after the shooting started. Raven reported
that he had seen Allen and Turner at a mutual friend’s house, just a day before the
shootings, and thought they were getting along. Raven said there were “no problems at
all” between Turner and Allen. Raven did not realize until they were walking through the
apartment complex that Allen intended to confront Turner about the girl who said she
was pregnant with Allen’s child, but who Turner said was his girlfriend.
II. DISCUSSION
A. Self-Defense Instructions
Turner contends the court prejudicially erred in refusing to instruct the jury on the
theories of imperfect self-defense and justifiable homicide based on self-defense.

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Defense counsel asked the court to instruct the jury with, among other things, CALJIC
Nos. 5.12 (justifiable homicide–lawful self-defense) and 5.17 (actual but unreasonable
belief in need to defend self).
Turner maintains the evidence justified the self-defense instructions because it
showed Allen “accompanied by five friends and armed with a revolver—set out to
confront [Turner], over a dispute as to whether [Allen] or [Turner] was the father of a
baby on the way.” He further claims that “[j]ust before the shooting, [Allen], in an
agitated state, spoke of killing [Turner].”
CALJIC No. 5.12 addressing justifiable homicide based on perfect self-defense,
states: “The killing of another person in self-defense is justifiable and not unlawful when
the person who does the killing actually and reasonably believes: [¶] 1. That there is
imminent danger that the other person will either kill [him] [her] or cause [him] [her]
great bodily injury; and [¶] 2. That it is necessary under the circumstances for [him] [her]
to use in self-defense force or means that might cause the death of the other person for
the purpose of avoiding death or great bodily injury to [himself] [herself]. [¶] A bare
fear of death or great bodily injury is not sufficient to justify a homicide. To justify
taking the life of another in self-defense, the circumstances must be such as would excite
the fears of a reasonable person placed in a similar position, and the party killing must act
under the influence of those fears alone. The danger must be apparent, present,
immediate and instantly dealt with, or must so appear at the time to the slayer as a
reasonable person, and the killing must be done under a well-founded belief that it is
necessary to save one’s self from death or great bodily harm.”
And, CALJIC No. 5.17, regarding imperfect self-defense provides as follows: “A
person who kills another person in the actual but unreasonable belief in the necessity to
defend against imminent peril to life or great bodily injury, kills unlawfully but does not
harbor malice aforethought and is not guilty of murder. This would be so even though a
reasonable person in the same situation seeing and knowing the same facts would not
have had the same belief. Such an actual but unreasonable belief is not a defense to the
crime of [voluntary] [or] [involuntary] manslaughter. [¶] As used in this instruction, an

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“imminent” [peril] [or] [danger] means one that is apparent, present, immediate and must
be instantly dealt with, or must so appear at the time to the slayer. [¶] [However, this
principle is not available, and malice aforethought is not negated, if the defendant by [his]
[her] [unlawful] [or] [wrongful] conduct created the circumstances which legally justified
[his] [her] adversary’s [use of force], [attack] [or] [pursuit].]”
The trial judge refused to give the requested instructions, ruling that “[t]here is no
substantial evidence to support” such instructions. Although the court denied Turner’s
request to include the self-defense instructions, defense counsel suggested during closing
argument that Turner acted in self-defense because Allen threatened to kill Turner.
Because we conclude the defense presented no evidence to support the giving of the
requested instructions, Turner’s claim fails.
Addressing a similar claim of instructional error, the California Supreme Court
explained: “An unlawful killing involving either an intent to kill or a conscious disregard
for life constitutes voluntary manslaughter, rather than murder, when the defendant acts
upon an actual but unreasonable belief in the need for self-defense. [Citations.] In
addition, a homicide is justifiable and noncriminal where the actor possessed both an
actual and reasonable belief in the need to defend. [Citations.] In either case, ‘the fear
must be of imminent harm. “Fear of future harm—no matter how great the fear and no
matter how great the likelihood of the harm—will not suffice. The defendant’s fear must
be of imminent danger to life or great bodily injury.’ ” [Citations.] The trial court need
not give [perfect or imperfect self-defense] instructions on request absent substantial
evidence to support them.” (People v. Stitely (2005) 35 Cal.4th 514, 551; see People v.
Manriquez (2005) 37 Cal.4th 547, 581; In re Christian S. (1994) 7 Cal.4th 768, 783.)
Where there is no evidence from which a jury could reasonably conclude a defendant had
an actual or honest belief in the need to defend against imminent danger to himself or
others, such instructions are properly refused. (People v. Rodriguez (1997) 53
Cal.App.4th 1250, 1269; accord, People v. Breverman (1998) 19 Cal.4th 142, 162
[instructions on imperfect self-defense required where the evidence that the defendant
was guilty only of that lesser offense is “ ‘substantial enough to merit [a jury’s]

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consideration’ ”; the existence of any evidence, no matter how weak, will not justify
instructions on a lesser included offense]; People v. Barton (1995) 12 Cal.4th 186, 201
[sua sponte instruction that defendant killed in unreasonable self-defense is not required
when the evidence is “ ‘minimal and insubstantial’ ”].) On appeal, we apply a de novo
standard of review. (Manriquez, supra, 37 Cal.4th at p. 581.)
Here, the evidence was insufficient to require the giving of either self-defense
instruction. The record is devoid of evidence suggesting Turner shot Allen because he
actually believed he was in imminent danger of being killed or seriously injured. At
some time prior to the shootings, Turner and Allen had fought about which one of them
had impregnated a girl from school. However, the day just before the shootings, it was
reported that there were “no problems at all” between Turner and Allen. On the day of
the shootings, it was reported that the altercation unfolded in an “unexpected” manner.
Turner shot first and then Allen returned fire.
Turner maintains there was substantial evidence to give the requested instructions
because just prior to the shootings, Allen, “in an agitated state spoke of killing [Turner].”
Next, Raven called out, “ ‘There go [Turner] right there.’ ” According to Raven, “right
after that, [Turner] started shooting.”
Turner concedes that his failure to testify “complicates” the question of whether he
heard Allen’s “statement of homicidal intent” or Raven’s subsequent declaration that
Tuner was across the street. Nevertheless, he insists that “there was a plausible basis for
the jury to conclude [Turner] did hear one or both of these statements, that he saw the
group of six boys assembled across the street from him, that he knew [Allen] was looking
to confront him, and that he saw [Raven] point him out to the group.”
We disagree.
There is simply no basis for the jury to conclude that Turner heard the remarks by
Allen and Vito. Raven said the comments were made inside the apartment complex, not
outside. Moreover, Officer Mahanay testified that the .25 caliber shell casings he
collected were located 120 feet from the 90th Avenue Gate. Also, there is no evidence
that Turner saw a group of six boys assembled across the street from him. Raven

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testified that Turner started shooting at him as soon as he left the 90th Avenue gate.
Allen was directly behind Raven; both boys turned back and started to run back through
the gate once the shooting started. Similarly, Starks started to run back down the
walkway as soon as he heard the shooting. No evidence suggested that anyone other than
Raven and Allen even stepped out of the gate; there was also no evidence that a group
had assembled on the street in a threatening manner.
Given the state of the evidence, in which nothing suggests Allen posed an
imminent danger to Turner’s life or that he created an imminent risk inflicting great
bodily harm to Turner, there is no evidence from which the jury can infer that to be the
case, the subjective elements required for imperfect self-defense are lacking. We
therefore conclude that the trial court correctly refused to instruct the jury on self-
defense.
B. Kill Zone Instruction and Sufficiency of the Evidence to Support the Attempted
Murder Convictions
Turner argues that the trial court erred in giving a kill zone instruction because it
was not supported by substantial evidence and, in any case, misstated the law.3 The jury
was instructed on attempted murder pursuant to CALJIC No. 8.66, which states in
pertinent part: “In order to prove attempted murder, each of the following elements must
be proved: [¶] 1.) A direct but ineffectual act was done by one person towards killing
another human being; and [¶] 2. The person committing the act harbored express malice
aforethought, namely, a specific intent to kill unlawfully another human being.”
The jury was also instructed on the kill zone theory of attempted murder with
CALJIC No. 8.66.1, entitled “Concurrent Intent.” That instruction tells the jury: “A
person who primarily intends to kill one person, may also concurrently intend to kill
other persons within a particular zone of risk. This zone of risk is termed the ‘kill zone.’
The intent is concurrent when the nature and scope of the attack, while directed at a
3 Because Turner’s claims on these issues are without merit, we need not consider
the Attorney General’s contention that Turner’s objections were forfeited below and
whether such forfeiture would constitute ineffective assistance of counsel.

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primary victim, are such that it is reasonable to infer the perpetrator intended to kill the
primary victim by killing everyone in that victim’s vicinity. [¶] Whether a perpetrator
actually intended to kill the victim either as a primary target or as someone within the kill
zone or zone of risk is an issue to be decided by you.”4
1. Law
A conviction for attempted murder requires proof that the defendant intended to
kill the victim and a direct but ineffectual act toward accomplishing that goal. (People v.
Perez (2010) 50 Cal.4th 222, 229.) Our Supreme Court has described the critical
distinction between the mental states required for attempted murder and murder:
“Attempted murder requires express malice, i.e., intent to kill. Implied malice—a
conscious disregard for life—suffices for murder but not attempted murder.” (People v.
Stone (2009) 46 Cal.4th 131, 139-140 (Stone); People v. Bland (2002) 28 Cal.4th 313,
327-328 (Bland).)
When a defendant is charged with attempting to kill multiple victims, guilt must
be determined separately for each alleged victim. (Stone, supra, 46 Cal.4th at p. 141.)
The doctrine of transferred intent, which permits a conviction for murder when a
defendant intends to kill a particular victim but instead kills someone else, does not apply
to attempted murder. (Bland, supra, 28 Cal.4th at pp. 327-328.) “To be guilty of
attempted murder, the defendant must intend to kill the alleged victim, not someone else.
The defendant’s mental state must be examined as to each alleged attempted murder
victim.” (Id. at p. 328.)
4 In the CALCRIM set of jury instructions, the “kill zone” theory of attempted
murder is found in CALCRIM No. 600, entitled “Attempted Murder.” It is contained in
an optional bracketed paragraph which provides: “[A person may intend to kill a specific
victim or victims and at the same time intend to kill everyone in a particular zone of harm
or ‘kill zone.’ In order to convict the defendant of the attempted murder of [name of
victim], the People must prove that the defendant not only intended to kill [name of
primary target] but also either intended to kill [name of victim], or intended to kill
everyone within the kill zone.]”

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“[A] shooter may be convicted of multiple counts of attempted murder on a ‘kill
zone’ theory where the evidence establishes that the shooter used lethal force designed
and intended to kill everyone in an area around the targeted victim (i.e., the ‘kill zone’) as
the means of accomplishing the killing of that victim.” (People v. Smith (2005) 37
Cal.4th 733, 745-746 (Smith).) In such a scenario, the defendant is liable for attempted
murder under a concurrent intent theory rather than transferred intent. (Bland, supra,28
Cal.4th at pp. 329-331.) “A kill zone, or concurrent intent, analysis focuses on (1)
whether the fact finder can rationally infer from the type and extent of force employed in
the defendant’s attack on the primary target that the defendant intentionally created a
zone of fatal harm, and (2) whether the nontargeted alleged attempted murder victim
inhabited that zone of harm. [Citation.]” (Smith, supra, 37 Cal.4th at pp. 755-756 (dis.
opn. of Werdegar, J.).)
The kill zone theory is not a legal doctrine requiring special jury instructions, but
rather, “is simply a reasonable inference the jury may draw in a given case.” (Bland,
supra, 28 Cal.4th at p. 331., fn. 6; People v. McCloud (2012) 211 Cal.App.4th 788, 802.)
Indeed “the Supreme Court has repeatedly explained that jury instructions on the kill
zone theory are never required. (Stone, supra, 46 Cal.4th at pp. 137-138; Smith, supra,
37 Cal.4th at p. 746; Bland, supra, 28 Cal.4th at p. 331, fn.6 . . . .)” (People v. McCloud,
supra, 211 Cal.App.4th at pp. 802-803.) Consequently, it is “impossible for a trial court
to commit error, much less prejudicial error, by declining to give a kill zone instruction.”
(People v. McCloud, supra, 211 Cal.App.4th at p. 803.)
2. Substantial Evidence
Turner argues that the instruction was not supported by substantial evidence
because there was no evidence he specifically intended to kill anyone. Specifically, as to
Allen’s death, the prosecutor asked the jury to convict him of second degree murder on
an implied malice theory. Turner asserts that, at most, the evidence shows only that he
shot at Allen, Starks, and Raven in a manner that subjected all three of them to the risk of
fatal injury with conscious disregard. He posits that “if the ‘kill zone’ theory of
attempted murder is rooted in the notion of concurrent intent, and [he] did not harbor the

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specific intent to kill [Allen] (but rather shot him with a conscious disregard for life), then
he also did not harbor the specific [intent] to kill [Starks] or [Raven], whom the
prosecutor never claimed (and the evidence did not show) were the shooter’s primary
targets.”
We are not convinced by Turner’s argument that he did not have the requisite
intent for attempted murder because he did not target a specific individual. A person can
be guilty of attempted murder if the person purposely creates a kill zone intending to kill,
not a specific target, but anyone present within the kill zone. (Stone, supra, 46 Cal.4th at
p. 140 [describing, as an example, a terrorist who places a bomb on a commercial airliner
intending to kill as many people as possible without knowing or caring who they are].)
An identifiable primary victim is not necessary for the kill zone theory to apply as “[t]he
mental state required for attempted murder is the intent to kill a human being, not a
particular human being.” (Id. at p. 134.)
Here, the prosecutor referred to evidence indicating that Turner acted with “a
definite and unambiguous intent to kill” as he shot at Allen, Starks, and Burnett.
Specifically, the prosecutor stated: “[W]e know from the witnesses that when the shots
rang out, they started running down the corridor to get away. We know that James Allen
was struck in the chest. We know that Damonte Starks and Burnett Raven were
essentially grazed . . . That’s how close the bullets are flying in this constricted area as
these young people are down the [corridor]. It’s not one shot, not two shots, not three
shots. It’s far more than that. [¶] A direct step indicates a definite and unambiguous
intent to kill. Shooting at close range at a crowd of people who have almost no means of
escape, you’re running down a corridor and you’re just praying the bullets miss as they’re
flying by.”
Our Supreme Court observed that “the act of purposefully firing a lethal weapon at
another human being at close range, without legal excuse, generally gives rise to an
inference that the shooter acted with express malice. That the shooter had no particular
motive for shooting the victim is not dispositive . . . . Nor is the circumstance that the
bullet misses its mark or fails to prove lethal dispositive—the very act of firing a weapon

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‘ “in a manner that could have inflicted a mortal wound had the bullet been on target” ’ is
sufficient to support an inference of intent to kill. [Citation.]” (Smith, supra, 37 Cal.4th
at p. 742.) The court held that evidence that the defendant “purposefully discharged a
lethal firearm at the victims, both of whom were seated in the vehicle, one behind the
other, with each directly in his line of fire, can support an inference that he acted with
intent to kill both. [Citations.]” (Id. at p. 743; see also People v. Chinchilla (1997) 52
Cal.App.4th 683, 685 [“intent to kill two different victims can be inferred from evidence
that the defendant fired a single shot at the two victims, both of whom were visible to the
defendant”].)
Here, Turner fired numerous shots at three victims, who had virtually no means of
escape. There was evidence from which the jury could find that Turner acted with
express malice as to all three victims. Indeed, the prosecutor even noted, that as to
Allen’s death, there was an argument to be made about first degree murder with respect
to Turner “putting the hoodie on” before he began shooting, “the number of shots” he
fired, and the fact that he “clos[ed] the distance to make sure [his] work” was done.”
That the prosecutor ultimately believed that second degree murder was the “most just
verdict” as to the death of Allen5, did not preclude a finding that Turner created a kill
zone, which encompassed all three victims.
Turner next argues that the jury was confused by the prosecutor’s argument
because it asked for clarification of the definition of the mental state for attempted
murder. Citing CALJIC No. 8.66.1, the trial court responded that a defendant must have
a “specific intent to kill another human [being] and anyone else in the ‘zone of risk.’ ”
Less than a half hour later, the jury returned its verdicts.
Here, any uncertainty on the jury’s part was dispelled when it asked for
clarification and the court correctly responded to the jury’s inquiry. (Bland, supra, 28
5 It appears that the prosecutor based his opinion, in part, on the absence of any
premeditation and deliberation; expressing his view that a first degree murder verdict was
not appropriate, due to “how quickly this case happened.”

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Cal.4th at p. 333.) Moreover, the jury was instructed with the lesser included offenses of
assault with a deadly weapon or by means likely to produce great bodily injury, but
convicted Turner of two counts of attempted murder, thus, demonstrating that it found he
harbored the requisite specific intent to kill.
In sum, we conclude the trial correctly instructed the jury with CALJIC No. 8.66.1
on the kill zone theory. Substantial evidence supports Turner’s attempted murder
convictions under that theory.
3. Legal Challenge
Turner contends CALJIC No. 8.66.1’s articulation of the kill zone theory is legally
erroneous because it: 1) fails to adequately define the kill zone; 2) fails to adequately
instruct that a defendant must have had a specific intent to kill; and 3) lessens the state’s
burden of proof, by “[p]ermitting the jury to convict so long as it finds an inference
reasonable without requiring the jury to actually make that inference . . . .”6
In People v. McCloud, supra, 211 Cal.App.4th 788, the court criticized the use of
the term “zone of risk” in CALJIC No. 8.66.1 as “misleading” and having “no basis in
the law—neither the phrase ‘zone of risk’ nor even the word ‘risk’ appears anywhere in
Bland.” (People v. McCloud, supra, 211 Cal.App.4th at p. 802, fn. 7.) (People v.Bland
(2002) 28 Cal.4th 313 (Bland).) The court further explained that “[b]y referring
repeatedly to a ‘zone of risk,’ the instruction suggests to the jury that a defendant can
create a kill zone merely by subjecting individuals other than the primary target to a risk
of fatal injury. . . . [T]hat is not correct.” (Ibid.) Here, however, the jury was also
instructed repeatedly on the requirement of intent and specific intent (see CALJIC No.
8.66 [in order to prove attempted murder, “a specific intent kill . . . another human being”
must be established), including in the challenged instruction (“[w]hether a perpetrator
6 The California Supreme Court granted review of the case on which Turner
primarily relies for his argument, People v. Sek (2015) 235 Cal.App.4th 1388. (Review
granted July 22, 2015, S226721.) The court deferred further action in People v. Sek
“pending consideration and disposition in a related issue in People v. Canizales, [review
granted Nov. 19, 2014,] S221958.” (Supreme Ct. Minutes, July 22, 2015, p. 1187; see
People v. Sek, supra, 235 Cal.App.4th 1388, review granted July 22, 2015, S226721.)

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actually intended to kill the victim either as a primary target or as someone within the kill
zone or zone of risk is an issue to be decided by you[,]” italics added.) Reading the
instructions as a whole, CALJIC No. 8.66.1 did not tell the jury that they need not
conclude that Turner intended to kill both victims. (See People v. Delgado (2017) 2
Cal.5th 544, 573-574.)
Moreover, contrary to Turner’s suggestion, nothing in CALJIC No. 8.66.1 is
“incompatible with the fundamental constitutional requirement of proof beyond a
reasonable doubt.” Turner takes issue with the following sentence: “The intent is
concurrent when the nature and scope of the attack, while directed at a primary victim,
are such that it is reasonable to infer the perpetrator intended to kill the primary victim by
killing everyone in that victim’s vicinity.” (CALJIC No. 8.66.1.) According to Turner,
the instruction impermissibly allows the jury to convict so long as it finds an inference
reasonable without requiring the jury to actually make that reasonable inference. We
disagree.
The challenged language comes from Bland, supra, 28 Cal.4th at page 329, where
our supreme court, in articulating the difference between transferred intent and
concurrent intent, explained: “ The conclusion that transferred intent does not apply to
attempted murder still permits a person who shoots at a group of people to be punished
for the actions towards everyone in the group even if that person primarily targeted only
one of them . . . [¶] [A]lthough the intent to kill a primary target does not transfer to a
survivor, the fact the person desires to kill a particular target does not preclude finding
that the person also, concurrently, intended to kill others within . . . the ‘kill zone.’ ‘The
intent is concurrent . . . when the nature and scope of the attack, while directed at a
primary victim, are such that we can conclude the perpetrator intended to ensure harm to
the primary victim by harming everyone in that victim’s vicinity. For example, an
assailant who places a bomb on a commercial airplane intending to harm a primary target
on board ensures by this method of attack that all passengers will be killed. Similarly,
consider a defendant who intends to kill A and, in order to ensure A’s death, drives by a
group consisting of A, B, and C, and attacks the group with automatic weapon fire or an

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explosive device devastating enough to kill everyone in the group. The defendant has
intentionally created a “kill zone” to ensure the death of his primary victim, and the trier
of fact may reasonably infer from the method employed an intent to kill others concurrent
with the intent to kill the primary victim. When the defendant escalated his mode of
attack from a single bullet aimed at A’s head to a hail of bullets or an explosive device,
the factfinder can infer that, whether or not the defendant succeeded in killing A, the
defendant concurrently intended to kill everyone in A’s immediate vicinity to ensure A’s
death. The defendant’s intent need not be transferred from A to B, because although the
defendant’s goal was to kill A, his intent to kill B was also direct; it was concurrent with
his intent to kill A. Where the means employed to commit the crime against a primary
victim create a zone of harm around that victim, the factfinder can reasonably infer that
the defendant intended that harm to all who are in the anticipated zone.’ [Citation.]”
(Bland, supra, 28 Cal.4th at pp. 320-330, italics added.)
Consistent with Bland, supra, 28 Cal.4th 1388, CALJIC No. 8.66.1 tells the jury
that “the intent is concurrent when the nature and scope of the attack . . . are such that it is
reasonable to infer the perpetrator intended to kill the primary victim by skilling everyone
in that victim’s vicinity.” Nothing in the plain language tells the jury that the intent is
concurrent based on the mere possibility that the perpetrator harbored that intent.
Moreover, the jury was properly instructed regarding the presumption of innocence and,
the prosecutor’s burden of proving guilt by a reasonable doubt (CALJIC No. 2.90), as
well as the requisite specific intent for attempted murder (CALJIC No. 8.66). The jurors
were also instructed to disregard any instructions they deemed not applicable based on
the facts (CALJIC No. 17.31). Jurors are presumed to follow the instructions that are
given. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
Turner fired a numerous shots at three victims, killing one and narrowly missing
the other two. Substantial evidence establishes intended to kill Starks and Raven by
“[s]hooting at close range at a crowd of people who have almost no means of escape
. . . .” Turner’s actions demonstrate that he took a direct but ineffectual step in intending
to kill Starks and Raven. (See e.g., People v. Perez, supra, 50 Cal.4th at p. 229.)

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Therefore, even if the trial court erred by instructing the jury with CALJIC No. 8.66.1, no
prejudice resulted. We presume the jury based its convictions on a theory supported by
the evidence, and there is no affirmative indication that the jury found Turner guilty
solely on a mere possibility that he harbored concurrent intent to kill under a zone of risk
theory. (People v. Perez (2005) 35 Cal.4th 1219, 1233.)
C. Cruel and Unusual Punishment Under the Eighth Amendment
Relying on 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), Turner, who was 15 years old at the time the murder and attempted murders
were committed, contends that his sentence of 84 years-to-life, is the functional
equivalent of a sentence of life without parole, and violates his rights to be free from
cruel and unusual punishment under the Eighth Amendment. He further claims on direct
appeal and in his consolidated petition for writ of habeas corpus that his defense counsel
rendered ineffective assistance by failing to object to the sentencing and by failing to
offer readily available mitigating evidence.
The Attorney General asserts that Turner forfeited the challenge to his sentence
because he failed to object in the trial court. The Attorney General further adds that
Senate Bill 260 (Sen. Bill 260), which enacted section 3051, cures any defect in Turner’s
sentence, and thus defense counsel was not ineffective for failing to object to the sentence
imposed.
The Eighth Amendment to the United States Constitution prohibits “cruel and
unusual punishments.” (See also Cal. Const., art. I, § 17 [proscribing the infliction of
“cruel or unusual punishment”].) This restriction proscribes punishment that it is grossly
disproportionate to the offender’s culpability. (U.S. Const., 8th Amend.) In the context
of juvenile offenders, because they “cannot with reliability be classified among the worst
offenders,” categorical rules have developed to prevent the imposition of disproportionate
punishment. (Roper v. Simmons (2005) 543 U.S. 551, 569.)
In Graham, supra, 560 U.S. 48, the Supreme Court held a nonhomicide juvenile
offender may not be sentenced to life without parole (hereafter LWOP). (Id. at p. 74.)

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The Court required juvenile offenders be given “some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation” absent exceptional
circumstances. (Id. at p. 75.)
After Graham came Miller, supra, 567 U.S. 460, in which the high court
prohibited sentencing a juvenile homicide offender to mandatory LWOP and required the
sentencing court to consider the mitigating qualities of youth. (Miller, supra, at pp. 477-
479.) The court explained: 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 with police officers or prosecutors (including on a plea agreement) or his
incapacity to assist his own attorneys. [Citations.] And finally, this mandatory
punishment disregards the possibility of rehabilitation even when the circumstances most
suggest it.” (Id. at pp. 477-478.) The court concluded: “Although we do not foreclose a
sentencer’s ability to [impose an LWOP sentence on a juvenile] in homicide cases, we
require it to take into account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.” (Id. at p. 480.)
Following Graham and Miller, in Caballero, supra, 55 Cal.4th 262, the California
Supreme Court prohibited a term-of-years sentence that amounts to the “functional
equivalent” of LWOP for juvenile nonhomicide offenders. (Id. at pp. 267-268.) The
court explained the Eighth Amendment requires that at sentencing, a juvenile
nonhomicide offender must be provided with “a meaningful opportunity to demonstrate
their rehabilitation and fitness to reenter society in the future,” and “the sentencing court
must consider all mitigating circumstances attendant in the juvenile’s crime and life,

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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. The Board of Parole Hearings will then
determine whether the juvenile offender must be released from prison ‘based on
demonstrated maturity and rehabilitation.’ [Citation.]” (Id. at pp. 268-269.)
In developing these rules, the courts relied on three fundamental differences
between juveniles and adults to conclude juveniles are constitutionally different from
adults for sentencing purposes. (Graham, supra, 560 U.S. at p. 68.) First, as compared
to adults, “children have a ‘ “lack of maturity and an underdeveloped sense of
responsibility,” ’ leading to recklessness, impulsivity, and heedless risk-taking.
[Citation.] Second, children ‘are more vulnerable . . . to negative influences and outside
pressures,’ including from their family and peers; they have limited ‘contro[l] over their
own environment’ and lack the ability to extricate themselves from horrific, crime-
producing settings. [Citation.] And third, a child’s character is not as ‘well formed’ as
an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of
irretrievabl[e] deprav[ity].’ ” (Miller, supra, 567 U.S. at p. 471.)
Because of these characteristics, “ ‘juvenile offenders cannot with reliability be
classified among the worst offenders.’ [Citation.] A juvenile is not absolved of
responsibility for his actions, but his transgression ‘is not as morally reprehensible as that
of an adult.’ ” (Graham, supra, 560 U.S. 48, 68.) Yet, “a juvenile offender will on
average serve more years and a greater percentage of his life in prison than an adult
offender.” (Id. at p. 70.) Accordingly, “appropriate occasions for sentencing juveniles to
[LWOP or its functional equivalent] will be uncommon.” (Miller, supra, 567 U.S. at
p. 479.)
In the wake of these cases, “[t]he issue of how long someone under the age of 18
may be sentenced to prison has been the subject of considerable judicial attention.”
(People v. Perez (2013) 214 Cal.App.4th 49, 55.) In response, the Legislature enacted

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Senate Bill No. 260 to establish section 3051 addressing juvenile sentencing concerns,
effective January 1, 2014.
Section 1 of Senate Bill 260 states in relevant part: “The Legislature finds and
declares that, as stated by the United States Supreme Court in [Miller], ‘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
‘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., Sen. Bill No.
260 (2013–2014 Reg. Sess.) § 1, pp. 2–3.) The Legislature declared its intent “to create a
process by which growth and maturity of youthful offenders can be assessed and a
meaningful opportunity for release established.” (Ibid.)
Section 3051 provides in pertinent part that subject to inapplicable exceptions, “[a]
person who was convicted of a controlling offense that was committed before the person
had attained 18 years of age and for which the sentence is a life 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, unless previously released or entitled to
an earlier parole consideration hearing pursuant to other statutory provisions.” (former
§ 3051, subds. (b)(3), (h).) “The youth offender parole hearing to consider release shall
provide for a meaningful opportunity to obtain release” and “take into consideration the
diminished culpability of juveniles as compared to that of adults, the hallmark features of

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youth, and any subsequent growth and increased maturity of the individual.” (§ 3051,
subds. (e), (f)(1).)
California Courts of Appeal have disagreed as to the effect of section 3051 vis-à-
vis Eighth Amendment claims brought by juvenile offenders. Recently, however, our
Supreme Court, in Franklin, supra, 63 Cal.4th 261, provided guidance on this issue. In
Franklin, the defendant was 16 years old when he shot and killed another teenager. He
was convicted of first degree murder and a firearm-discharge enhancement was found
true. He received two consecutive 25-year-to-life sentences in prison. (Franklin, supra,
63 Cal.4th at p. 268.) Our Supreme Court granted review to answer two questions: “Does
. . . section 3051 moot [the defendant’s] constitutional challenge to his sentence by
requiring that he receive a parole hearing during his 25th year of incarceration? If not,
then does the state’s sentencing scheme, which required the trial court to sentence [the
defendant] to 50 years to life in prison for his crimes, violate Miller’s prohibition against
mandatory LWOP sentences for juveniles?” (Ibid.) Franklin held that sections 3051 and
4801 mooted the defendant’s constitutional claim, making it unnecessary to answer the
second question. (Ibid.) In so holding, the court explained: “Consistent with
constitutional dictates, those statutes provide Franklin with the possibility of release after
25 years of imprisonment ([ ] § 3051, subd. (b)(3)) and require the Board of Parole
Hearings (Board) to ‘give great weight to the diminished culpability of juveniles as
compared to adults, the hallmark features of youth, and any subsequent growth and
increased maturity’ (id., § 4801, subd. (c)).” (Franklin, supra, 63 Cal.4th at p. 268.)
Franklin explained that section 3051 was enacted “explicitly to bring juvenile sentencing
into conformity with Graham, Miller, and Caballero” and “reflects the Legislature’s
judgment that 25 years is the maximum amount of time that a juvenile offender may
serve before becoming eligible for parole.” (Franklin, supra, 63 Cal.4th at pp. 277-278.)
The court held that sections 3051 and 3046 had “superseded the statutorily mandated
sentences of inmates who, . . . committed their controlling offense before the age of [23]”
(Franklin, supra, 63 Cal.4th at p. 278); section 3051 “effectively reforms the parole
eligibility date of a juvenile offender’s original sentence so that the longest possible term

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of incarceration before parole eligibility is 25 years.” (Franklin, supra, 63 Cal.4th at
p. 281.) The court concluded, “In sum, the combined operation of section 3051, section
3046, subdivision (c), and section 4801 means that Franklin is now serving a life sentence
that includes a meaningful opportunity for release during his 25th year of incarceration.
Such a sentence is neither LWOP nor its functional equivalent. Because Franklin is not
serving an LWOP sentence or its functional equivalent, no Miller claim arises here. The
Legislature’s enactment of Senate Bill No. 260 has rendered moot Franklin’s challenge to
his original sentence under Miller.” (Franklin, supra, 63 Cal.4th at pp. 279-280.)
The defendant in Franklin was not entitled to resentencing because “section 3051
has changed the manner in which the juvenile offender’s original sentence operates by
capping the number of years that he or she may be imprisoned before becoming eligible
for release on parole. The Legislature has effected this change by operation of law, with
no additional resentencing procedure required.” (Franklin, supra, 63 Cal.4th at pp. 278-
279.)
Although the court affirmed his sentence, because Franklin had been sentenced
prior to Miller and Caballero, it remanded the matter to the trial court “for a
determination of whether Franklin was afforded sufficient opportunity to make a record
of information relevant to his eventual youth offender parole hearing.” (Franklin, supra,
63 Cal.App.4th at p. 284.) It instructed: “If the trial court determines that Franklin did
not have sufficient opportunity, then the court may receive submissions and, if
appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of
the California Rules of Court, and subject to the rules of evidence. Franklin may place on
the record any documents, evaluations, or testimony (subject to cross-examination) that
may be relevant at his eventual youth offender parole hearing, and the prosecution
likewise may put on the record any evidence that demonstrates the juvenile offender’s
culpability or cognitive maturity, or otherwise bears on the influence of youth-related
factors. The goal of any such proceeding is to provide an opportunity for the parties to
make an accurate record of the juvenile offender’s characteristics and circumstances at
the time of the offense so that the Board, years later, may properly discharge its

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obligation to ‘give great weight to’ youth-related factors (§ 4801, subd. (c)) in
determining whether the offender is ‘fit to rejoin society’ despite having committed a
serious crime ‘while he was a child in the eyes of the law’ (Graham, supra, 560 U.S. at
p. 79).” (Franklin, supra, 63 Cal.4th at p. 284.)
Like the defendant in Franklin, Turner is eligible by operation of law for parole
consideration in his 25th year of incarceration, as he is not excluded for any reason
enumerated in section 3051, subdivision (h). In light of the holding in Franklin, Turner’s
contention that his sentence constitutes cruel and unusual punishment is moot because he
will have a meaningful opportunity for release within his lifetime under section 3051.
Turner, however, must be afforded an opportunity to present evidence of youth-
related factors for consideration at his future youth offender parole hearing in his 25th
year of incarceration. In Franklin, the defendant had been sentenced prior to Miller and
Caballero, so it was unclear whether he had an opportunity to make a record of the
youth-related factors to be presented at his youth offender parole hearing. (Franklin,
supra, 63 Cal.4th at pp. 268-269.) Here, although Turner was sentenced after Miller and
Caballero, the record establishes that he was not afforded a sufficient opportunity to
make a record regarding his characteristics and circumstances at the time he opened fire
on the victims. Specifically, defense counsel did not file a sentencing brief and submitted
at the hearing without raising any objections to the probation officer’s report. It is also
unclear whether defense counsel even reviewed the probation officer’s report with
Turner. Following the approach in Franklin, Turner is entitled to the opportunity to
present evidence that may be relevant at his future youth offender parole hearing.
D. Ineffective Assistance of Counsel Claim
In his writ of habeas corpus petition, Turner asserts his counsel was ineffective
because he failed to argue his sentence was unconstitutional under Graham, Miller, and
Caballero, and did not present readily available mitigating evidence of youth and
inexperience.
“Under existing law, a defense attorney who fails to adequately understand the
available sentencing alternatives, promote their proper application, or pursue the most

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advantageous disposition for his client may be found incompetent. [Citations.]” (People
v. Scott (1994) 9 Cal.4th 331, 350-351.)
“A defendant claiming ineffective assistance of counsel must satisfy Strickland’s
[Strickland v. Washington (1984) 466 U.S. 668] two-part test requiring a showing of
counsel’s deficient performance and prejudice. [Citation.] As to deficient performance, a
defendant ‘must show that counsel’s representation fell below an objective standard of
reasonableness’ measured against ‘prevailing professional norms.’ [Citation.] ‘Judicial
scrutiny of counsel’s performance must be highly deferential,’ a court must evaluate
counsel’s performance ‘from counsel's perspective at the time’ without [ ] ‘the distorting
effects of hindsight,’ and ‘a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance. . . .’
[Citation.]” (People v. Jacobs (2013) 220 Cal.App.4th 67, 75 (Jacobs ).)
Even under these highly deferential standards, defense counsel’s performance in
connection with the sentencing was deficient. As noted, defense counsel did not file a
sentencing brief and submitted at the hearing without raising any objections to the
probation officer’s report. It is also unclear whether defense counsel even reviewed the
probation officer’s report with Turner. In essence, defense counsel did nothing to
advocate on behalf of Turner regarding the sentencing in this case.
Of course, Turner must also demonstrate prejudice as a result. “The prejudice
prong requires a defendant to establish that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’
[Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence
in the outcome.’ [Citation.]” (Jacobs, supra, 220 Cal.App.4th at p. 75.)
Turner argues that his case is “materially indistinguishable” from People v.
Speight (2014) 227 Cal.App.4th 1229 (Speight), which held that a 17-year-old defendant
was prejudiced by his attorney’s failure to raise an Eighth Amendment objection to the
length of the sentence imposed. (Id. at pp. 1233, 1248-1249.) Once again, section 3051
is relevant in our analysis of Turner’s claim. Speight did not address the effect of section
3051 on the defendant’s sentence or its application in assessing his claim of ineffective

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assistance of counsel. In fact, there is no mention in Speight of section 3051 or Sen. Bill
260 at all. Accordingly, Speight is not dispositive of the issue on appeal.
Rather, we conclude that even if counsel had raised the challenge Turner now
faults him for omitting, there is no possibility on the record presented on appeal he would
have received in the trial court a sentence with an earlier parole eligibility date than under
section 3051. Moreover, since Turner’s sentence was not unconstitutional, it follows that
his counsel was not ineffective for failing to argue that it was.
E. Probation Investigation Fee
At Turner’s sentencing hearing, the trial court imposed a probation investigation
fee of $710. Defense counsel asked if the court would consider waiving the fee “in view
of the sentence.” The court responded that it lacked the authority to waive the fee under
section 1203.1b, but agreed to reduce the fee to $200.
Turner argues, and the Attorney General concedes, that the trial court erred by
finding that it could not waive the probation investigation fee. “[S]ection 1203.1b,
subdivision (a) requires the probation officer to determine a defendant’s ability to pay all,
or a portion of the reasonable cost of probation supervision and probation report
preparation. The statute also requires the probation officer to inform the defendant he has
a right to have the court determine his ability to pay and the payment amount. The
defendant may waive the right to such a determination only by a knowing and intelligent
waiver. ([] § 1203.1b, subd. (a).) Absent such a waiver, a court must conduct an
evidentiary hearing. If the court determines the defendant is able to pay all or part of the
costs, the court is required to set the amount of the payment and order the defendant to
pay that amount to the county in a manner that is reasonable and compatible with the
defendant’s financial ability. ([] § 1203.1b, subd. (b).) The statute also provides for
additional hearings during the period of probation to review the defendant’s ability to pay
the probation costs. ([] § 1203.1b, subd. (c).)” (People v. Hall (2002) 103 Cal.App.4th
889, 892-893.)
Although the probation officer recommended a $710 fee, there is no indication the
probation officer determined Turner’s ability to pay the fee. The probation officer noted

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that 18-year old Turner had never been employed and had no verifiable income. It is
unclear whether Turner was informed of his statutory right under section 1203.1b to have
the court determine his ability to pay the fee, as required. (People v. Hall, supra, 103
Cal.App.4th at p. 893.) Moreover, there is no indication Turner waived his rights to a
court hearing and judicial determination. The court did not conduct a hearing or receive
evidence regarding Turner’s financial ability to pay the probation investigation fee. The
court made no finding regarding Turner’s ability to pay all or part of the probation fees.
As the court in People v. Hall, supra, 103 Cal.App.4th 889 explained, “section
1203.1b does not specify the procedure a trial court should follow if it determines a
defendant is unable to pay any part of his probation costs. The obvious implication from
the language of . . . section 1203.1b, subdivision (b)(2), however, is that the court should
not order the defendant to pay any portion of the costs. This conclusion follows from the
following language: ‘if the court determines that the defendant has the ability to pay all
or part of the costs, the court shall set the amount to be reimbursed and order the
defendant to pay that sum to the county . . . .’ ([], § 1203.1b, subd. (b)(2).) If the court
determines the defendant lacks the ability to pay any part of the costs, it cannot,
consistent with [ ] section 1203.1b, subdivision (b)(2), order the defendant to reimburse
the county for any costs.” (People v. Hall, supra, 103 Cal.App.4th at pp. 893-894, italics
added.)
Here, the court ordered Turner to reimburse the county for his probation
investigation fee in the amount of $200. The court’s order was no doubt well-
intentioned, but nonetheless erroneous. The trial court’s order requiring Turner to pay
$200 is stricken.
F. Proposition 57
Turner petitioned for rehearing on the ground that an initiative measure recently
passed by the voters, “The Public Safety and Rehabilitation Act of 2016,” commonly
known as Proposition 57, applies retroactively to this case. We granted the petition for
rehearing in order to consider this issue.

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As relevant to this case, Proposition 57 eliminated the ability of a prosecuting
attorney to file charges directly against a juvenile offender in adult court; instead, the
People are authorized to file “a motion to transfer the minor from juvenile court to a court
of criminal jurisdiction.” (Welf. & Inst. Code, § 707, subd. (a)(1).) Upon receiving such
a motion, the juvenile court determines whether the minor should be transferred to adult
court based on certain statutorily factors. (Welf. & Inst. Code, § 707, subd.
(a)(2); People v. Superior Court (Lara ) (2017) 9 Cal.App.5th 753, 758; People v.
Cervantes (2017) 9 Cal.App.5th 569, 595-597, review granted May 17, 2017, A10
(Cervantes).) These factors include the minor’s degree of criminal sophistication, giving
weight to the minor’s age, maturity, intellectual capacity, physical, mental, and emotional
health, and impetuosity, and the effect of familial, adult, or peer pressure; the minor’s
potential for rehabilitation before expiration of the juvenile court’s jurisdiction; the
minor’s previous delinquent history and previous efforts to rehabilitate the minor; and the
circumstances and gravity of the offense. (Welf. & Inst. Code, § 707, subd. (a)(2)(A)-
(E).)
Turner argues that Proposition 57’s requirement that a case against a minor be
brought first in juvenile court and transferred to a court of criminal jurisdiction, or adult
court, applies retroactively because it acts as a reduction in punishment. He therefore
asks us to remand the matter for a fitness hearing at which the juvenile court would make
a detailed assessment of the statutory factors. The Attorney General asserts that the
revisions that Proposition 57 made to Welfare and Institutions Code section 707 do not
apply retroactively to a conviction entered prior to the effective date of the amendment
even if the conviction was not yet final. After the parties completed supplemental
briefing on this issue, several cases, including one from this division, have discussed this
fundamental disagreement and have reached conflicting conclusions. (Cervantes,
supra, 9 Cal.App.5th 569, 580, review granted May 17, 2017, A140464 [affirmed
convictions need not be reevaluated under new provisions, but fitness hearing under new
provisions required as to charges reversed and remanded for new trial]; People v.
Mendoza (2017) 10 Cal.App.5th 327, 331 [no retroactive application of Proposition 57];

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but see People v. Vela (2017) 11 Cal.App.5th 68, 75-76, 79, 82 [conviction of minor
conditionally reversed and remanded for juvenile transfer hearing under revised section
707 provisions; if juvenile court determines defendant not fit subject for treatment under
juvenile court law, the conviction to be reinstated]; People v. Marquez (2017) 11
Cal.App.5th 816, 827-828 [agreeing with reasoning and conclusion in Cervantes and
Menodoza and disagreeing with Vela].)
In support of his position, Turner relies on In re Estrada (1965) 63 Cal.2d 740,
742 (Estrada ), which held that when a criminal statute is amended “after the prohibited
act is committed, but before final judgment, by mitigating the punishment,” the
punishment provided by the amended statute should be imposed. This holding was based
on the court’s conclusion that “[w]hen the Legislature amends a statute so as to lessen the
punishment it has obviously expressly determined that its former penalty was too severe
and that a lighter punishment is proper as punishment for the commission of the
prohibited act. It is an inevitable inference that the Legislature must have intended that
the new statute imposing the new lighter penalty now deemed to be sufficient should
apply to every case to which it constitutionally could apply.” (Id. at p. 745.) Turner
argues that Proposition 57 effects a reduction in punishment and is subject to the rule
of Estrada.
A different panel of this division recently rejected the argument that the rule
of Estrada should apply so as to make Proposition 57’s requirement for a fitness hearing
retroactive. In Cervantes, this division explained that later Supreme Court cases “have
limited Estrada’s retroactivity exception to statutory changes that mitigate the penalty for
a particular crime, which is not true of Prop 57.” (Cervantes, supra, 9 Cal.App.5th at p.
600, review granted May 17, 2017, A140464.) Our Supreme Court in People v.
Brown (2012) 54 Cal.4th 314, 324, explained that “Estrada is today properly understood,
not as weakening or modifying the default rule of prospective operation codified in
section 3 [of the Penal Code], but rather as informing the rule’s application in a specific
context by articulating the reasonable presumption that a legislative act mitigating the
punishment for a particular criminal offense is intended to apply to all nonfinal

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judgments. [Citation.]” (Italics added.) Applying this rule, the high court concluded that
a statute increasing the rate at which prisoners could earn credit for good behavior should
not be applied retroactively because it did not “represent a judgment about the needs of
the criminal law with respect to a particular criminal offense.” (Id. at p. 325.)
In Cervantes, this division “[found] the rationale underlying Estrada equally
inapplicable to the procedural changes implemented by Prop 57.” (Cervantes, supra, 9
Cal.App.5th at p. 601, review granted May 17, 2017, A140464.) Although Proposition
57 will affect time spent in custody in some cases, it does not directly mitigate the
penalty for a particular crime as required for retroactivity under Estrada. (Cervantes, at
pp. 601-602, review granted May 17, 2017, A140464; accord Mendoza; supra, 10
Cal.App.5th at pp. 346-347; Marquez, supra,11 Cal.App.5th at pp. 827-828.) We remain
of the view that the pertinent portions of Proposition 57 should not be applied
retroactively. We therefore reject Turner’s contention that he is entitled to have this
matter remanded for a fitness hearing pursuant to Proposition 57. For the reasons
discussed in Cervantes, we also reject Turner’s contention that this result deprives him of
his constitutional right to equal protection. (Cervantes, supra, 9 Cal.App.5th at p. 598,
fn. 38; see also Mendoza, supra, 10 Cal.App.5th at p. 352, fn. 32.)
III. DISPOSITION
Our December 13, 2016 opinion is vacated. The matter is remanded to the trial
court for the limited purpose of providing Turner an adequate opportunity to make a
record of information that will be relevant to the Board as it fulfills its statutory
obligations under sections 3051 and 4801. (Franklin. supra, 63 Cal.4th at pp. 286-287.)
Turner’s sentence is modified to reflect he shall be entitled to a parole hearing after
serving 25 years in prison. Additionally, the $200 probate investigation fee shall be
stricken. The clerk of the trial court is directed to prepare a new abstract of judgment
with these modifications and to send a certified copy thereof to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed. The
petition for writ of habeas corpus is denied.

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_________________________
REARDON, ACTING P. J.
We concur:
_________________________
RIVERA, J.
_________________________
STREETER, J.
People v. Turner A138649; In re Turner A142829

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