People v. Harring

1

THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE HARRING, JR., Defendant and Appellant.

F086023

California Court of Appeals, Fifth District

April 2, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No SC073336A. Michael G. Bush, Judge.

Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

This is petitioner David Lee Harring, Jr.'s second appeal from his 2018 petition for recall and resentencing under Penal Code section 1170, subdivision (d). In a partially published opinion, we vacated the trial court's denial of Harring's petition and remanded for a resentencing hearing. (People v. Harring (2021) 69 Cal.App.5th 483, 503 (Harring I).) Upon resentencing, the trial court reimposed a term of life without the possibility of parole (LWOP) for a murder Harring committed in 1997 when he was 17 years old.

On appeal, Harring challenges that resentencing determination and additionally seeks a new juvenile transfer hearing in light of ameliorative changes in the law since his original transfer hearing conducted in 1997. We conclude Harring has not established the sentencing court abused its discretion in reimposing a term of LWOP. Nonetheless, Harring is entitled to remand for a new juvenile transfer hearing in view of the amendments to Welfare and Institutions Code^[1] section 707 under Proposition 57 (as approved by voters, Gen. Elec. (Nov. 8 2016) (Proposition 57)), Assembly Bill No. 2361, and Senate Bill No. 545; and the amendment to section 607 under Senate Bill No. 135.^[2]Accordingly, we conditionally reverse Harring's sentence and remand for a transfer/amenability hearing before the juvenile court.

FACTUAL BACKGROUND

I. November 1997 Murder and Procedural History

In November 1997, when Harring was 17 years old, he and three other youths^[3]approached brothers Arnulfo S. and Arturo S., who were walking home from an English language class they had just completed. During an attempted robbery of the brothers, Harring shot them both. Arnulfo was fatally shot in the head and the neck. Arturo was shot in the arm, which passed into his chest, but he survived. (Harring I, supra, 69 Cal.App.5th at p. 490.)

The People charged Harring with (1) first degree willful, deliberate and premeditated murder (Pen. Code, § 187, subd. (a)) of Arnulfo with a special circumstance allegation that the murder was committed during the commission of a robbery (id., § 190.2, subd. (a)(17)), and an enhancement allegation for personal use of a firearm under Penal Code section 12022.5, subdivision (a); (2) attempted first degree premeditated murder (id., §§ 664, 187, subd. (a)) of Arturo with enhancement allegations for the personal use of a firearm under Penal Code section 12022.5, subdivision (a), and inflicting great bodily injury (GBI) under Penal Code section 12022.7; (3) attempted robbery (id., §§ 664, 212.5, subd. (c)) of Arnulfo with an enhancement allegation of personal use of a firearm under Penal Code section 12022.5; and (4) attempted robbery (id., §§ 664, 212.5, subd. (c)) of Arturo with enhancement allegations for the personal use of a firearm under Penal Code section 12022.5, subdivision (a), and for inflicting GBI under Penal Code section 12022.7.

On June 9, 1998, a jury convicted Harring of each offense and found true all enhancement allegations. The court sentenced Harring on July 30, 1998, to LWOP on count 1, plus an additional 10-year determinate term for the firearm enhancement. The trial court imposed a term of life with the possibility of parole on count 2, plus an additional 10-year determinate term for the firearm enhancement and a three-year additional term for the GBI enhancement on this count to be served consecutive to count 1. Harring was also sentenced to a term of three years each on counts 3 and 4, which were stayed pursuant to Penal Code section 654, as were the terms imposed for the enhancements found true as to counts 3 and 4.

II. Petition For Resentencing and Recall (Pen. Code, § 1170, Subd. (d))

On December 19, 2018, approximately 20 years after beginning to serve his sentence, Harring filed a petition with the Kern Superior Court for recall and resentencing pursuant to Penal Code section 1170, former subdivision (d)(2). A hearing was held on March 13, 2019, where Harring's mother and Harring testified.

Sharon Kelley testified Harring's father was killed in a robbery when Harring was five years old. She remarried when Harring was seven years old, but her new husband was in and out of jail. Kelley raised her five children on her own for the most part, and worked more than 40 hours a week out of the house. As the oldest sibling, Harring would care for his younger siblings when she was gone. When Harring was in high school, they moved to an area that had "a lot of crime and drug traffic." Harring had done well in high school to that point; he kept his grades up, had no disciplinary issues except one she recalled on cross-examination, and participated on multiple sports teams. After the family moved, Harring was ineligible to participate in high school sports and he became angry and closed off; he began hanging around with relatives who were "bad actors." Disciplinary issues arose at school, and he was arrested in March 1997 for a shoplifting incident in a department store, which Kelley acknowledged on cross-examination involved a physical altercation with store personnel. Kelley testified Harring had been the target of a shooting in the past, but he had not actually been hit with a bullet; some of his cousins with whom Harring spent time were gang members.

When Harring committed the robbery and murder in November 1997, he was with some of his cousins of whom Kelley did not approve. Since Harring has been incarcerated, Kelley testified he has demonstrated remorse and had changed a lot. He participated in the Defy program which he completed in 2018 and now resolves conflict in a different manner. Kelley testified that if Harring was released from prison, he would have family support and a place to stay. She acknowledged on cross-examination that Harring had acquired numerous disciplinary violations while in prison, including for fighting, drugs, and having a cell phone.

Harring testified his father died when he was about five years old; his mother remarried, but his stepfather was periodically in and out of prison and they never formed a particularly close relationship. In high school, Harring had to switch high schools and became ineligible to play high school sports due to school district boundaries; the neighborhood had negative influences, including extended family who were gang members. After someone had fired a gun at him, Harring started carrying a gun. In March 1997, he was caught shoplifting, and he was sentenced to community service, which he did not complete.

Later in 1997, Harring was arrested with some of his cousins for murder. Harring stated one of the cousins claimed the victims owed him money, and when the victims fought back, Harring and the others came to the cousin's assistance. Harring said his mind "went red" and he started shooting in the belief he was defending his cousin and himself.

When Harring was sent to prison at 18 years old, he "felt like a zombie." It was stressful, and he was angry. In 2004, he obtained a GED certificate. He did not immediately enroll in college courses because those required books and materials for which he did not have the money. He was not afforded much opportunity to participate in rehabilitative programs because he had a life sentence, and priority was given to those with release dates. The program offerings started to get better when new laws were passed for juvenile offenders. He explained the basis for certain prison violations for battery and fighting he had acquired in 2000, 2008, 2011 and 2015, and detailed different programs in which he had participated that had helped him mature, develop more communication skills, and make better choices to avoid fighting and conflict. He noted the support he would have upon release, including housing and job opportunities, and explained he had gotten married in 2018. He expressed remorse and regret for the murder he had committed.

On March 27, 2019, the court denied the petition, finding Harring ineligible for resentencing. On appeal, we reversed the trial court's eligibility determination, vacated the sentence, and remanded for the trial court to resentence defendant under Penal Code section 1170, subdivision (d). (Harring I, supra, 69 Cal.App.5th at pp. 503, 504.) Upon remand before the trial court, Harring submitted an updated sentencing brief; the People filed a reply brief; the parties presented argument at a hearing on March 7, 2023; the trial court agreed to consider the 2019 hearing testimony of Kelley and Harring; and the trial court took the matter under submission. At a subsequent March 21, 2023, hearing, the trial court again sentenced Harring to a term of LWOP for the murder conviction on count 1. The aggregate sentence was 11 years determinate (enhancements on counts 1 & 2), plus LWOP (count 1), plus life with the possibility of parole (count 2). The terms imposed for counts 3 and 4 (attempted robbery) were stayed under Penal Code section 654, as were the sentences on the attached enhancements.

DISCUSSION

I. Remand is Required For Juvenile Transfer/Amenability Hearing

Harring argues the recall of his sentence (Pen. Code, § 1170 subd. (d)(2))...