People v. Spivey CA2/7

Filed 9/15/16 P. v. Spivey CA2/7 On remand from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B252500

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA064306) v.

DAVID WAYNE SPIVEY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Scott T. Millington, Judge. Affirmed and remanded with directions. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael R. Johnsen, Steven D. Matthews, and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

On December 15, 2014 we filed an opinion remanding this matter to the trial court to resentence David Wayne Spivey after considering the mitigating factors relating to the distinctive attributes of a juvenile offender identified in Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller), People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez) and People v. Caballero (2012) 55 Cal.4th 262 (Caballero). The Supreme Court granted the Attorney General’s petition for review on March 11, 2015, and deferred further action pending its decision in several cases, including People v. Franklin, S217699. On August 17, 2016 the Court transferred the matter to us with directions to vacate our December 15, 2014 decision and reconsider the cause in light of People v. Franklin (2016) 63 Cal.4th 261, 268-269, 283-284 (Franklin). Under Franklin Spivey’s constitutional challenge to his sentence is now moot. However, we remand the case to the trial court to determine whether Spivey is entitled to a hearing to present evidence relevant to his future youth offender parole hearing.1 FACTUAL AND PROCEDURAL BACKGROUND Spivey was convicted following a jury trial of first degree murder, shooting at an inhabited dwelling and conspiracy to commit murder with true findings on related firearm-use and criminal-street-gang enhancement allegations. Prior to the initial sentencing on November 1, 2010, the trial court heard argument from counsel and a statement from Spivey’s mother. The court advised the parties it had read and considered the probation report, the parties’ sentencing memoranda and 10 letters submitted on Spivey’s behalf. The parties stipulated no supplemental probation report was necessary.