Category Archives: Pleading

Due process, Elements of crime, Pleading, Sentencing

Case 001133

Posted on by Gary McCurdy

Error and/or relief

The gang conspiracy convictions are unsupported by substantial evidence that defendants committed the target offense charged, i.e., a violation of section 26100(c). We therefore modify the verdicts on count 5 to reflect convictions for gang conspiracy based on a lesser included target felony violation of section 26100(d). Resentencing is required on this count and vacate the sentences.

The sentences on count 2 must be vacated because the alternate penalty provision set forth in section 186.22(b)(4) was neither pled nor proved. Additionally, imposition of both the gang enhancement and firearm enhancement on this count violates the dual use prohibition set forth in section 12022.53(e)(2).

We remand for resentencing.

(Gary note: This was a multiple-defendant case with an extremely long opinion. There were many issues, most of which resulted in a finding of no error, and I have not attempted to list them all.)

First Holding:

The information charged defendants in count 5 with gang conspiracy for promoting, furthering, assisting, or benefitting from felonious criminal conduct, specifically Penal Code section 26100(c). Section 26100(c) is violated by the willful and malicious discharge of a firearm from a motor vehicle at another person other than an occupant of a motor vehicle.

Authority:

PEN 26100(c)

Second Holding:

In this case there was no evidence that a firearm was discharged at anyone other than an occupant of a motor vehicle. Under sections 1181 and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.

In a conspiracy case, the defendant may be convicted of conspiring to commit a lesser crime included in the alleged target offense.

Authority:

PEN 1181

PEN 1260

People v. Navarro (2007) 40 Cal.4th 668, 671

People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1706 [the trial court has a sua sponte obligation to instruct on lesser included target offenses if there is evidence from which the jury could find a conspiracy to commit a lesser offense]

Third Holding:

It is well settled that a section 182.5 conspiracy (i.e., conspiracy in connection with participation in a criminal street gang) relates only to the commission of a felony. Thus, a gang conspiracy requires the actual commission of felonious criminal conduct as either an attempt or a completed crime.

A violation of section 26100(d) [discharging a firearm from a motor vehicle] is a wobbler, meaning it is chargeable or, in the discretion of the court, punishable as either a felony or a misdemeanor. An attempted or completed felony violation of section 26100(d) may appropriately serve as the target offense for a gang conspiracy conviction.

In light of the insufficient evidence of a violation under subdivision (c), we will modify the verdicts on count 5 to reflect the gang conspiracy convictions are predicated upon a felonious violation of section 26100(d).

Authority:

PEN 26100(d)

People v. Johnson (2013) 57 Cal.4th 250, 262

People v. Park (2013) 56 Cal.4th 782, 789

Fourth Holding:

In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. However, a judicially created exception to the general rule permitting multiple conviction prohibits multiple convictions based on necessarily included offenses.

When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.

An offense is necessarily included within another if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that all legal elements of the lesser offense are also elements of the greater. In other words, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.

Authority:

People v. Reed (2006) 38 Cal.4th 1224, 1226-1227

People v. Sanders (2012) 55 Cal.4th 731, 736

People v. Sanchez (2001) 24 Cal.4th 983, 987 [a defendant cannot be convicted of both a greater offense and a necessarily included offense based on the commission of the same act]

People v. Robinson (2016) 63 Cal.4th 200, 207

Fifth Holding:

The elements of the crimes of active participation in a gang (section 186.22) and gang conspiracy (section 182.5) are nearly identical.

However, whereas active participation may be committed by any of the alternative means of promoting, furthering, or assisting in felonious conduct by gang members, gang conspiracy may be committed by any of the alternative means of promoting, furthering, assisting, or benefitting from the felonious conduct of gang members.

Although all the elements of the active participation offense are also included in the gang conspiracy offense, it is possible to commit gang conspiracy without committing the active participation offense if the defendant merely benefits from the felonious criminal conduct of fellow gang members.

Thus, because gang conspiracy may be committed without necessarily committing the offense of active participation in a criminal street gang, active participation is not a necessarily included lesser offense.

Authority:

PEN 186.22

PEN 182.5

People v. Robinson (2016) 63 Cal.4th 200, 207

People v. Hinojos (2025) 111 Cal.App.5th 19, 33–34 [utilizing the same reasoning to hold that section 654 did not bar imposition of the gang enhancement on the defendant’s gang conspiracy convictions]

Sixth Holding:

The court erred in sentencing defendants pursuant to section 186.22(b)(4) because this alternate penalty provision was not alleged in the information. Section 186.22(b)(4) is an alternate penalty provision prescribing indeterminate terms of life imprisonment for those who committed certain enumerated felonies under the same gang-related circumstances described elsewhere in section 186.22. If the elements are present, the sentence will be an indeterminate term of life, with a specified minimum term.

A defendant has a due process right to fair notice of any sentencing allegation that, if proven, will increase the punishment for a crime. As a matter of due process, an alternative punishment provision must be pleaded and proved.

The failure to plead an alternate penalty provision deprives the defendant of fair notice of his or her sentencing exposure by failing to inform him or her that an alternate sentence carrying a higher term will be pursued.

Additionally, a defendant is deprived of adequate notice if punishment is imposed under one provision, and an enhancement was alleged under a different, mutually exclusive provision, even if facts supporting the alternate allegation are contained in the information.

Even if the statute alleged in the information cross-references the statute under which an alternate penalty is pursued, the information fails to inform the defendant that the prosecution will seek to impose the more stringent sentence; therefore, imposition of the higher alternate sentence would violate due process.

Authority:

People v. Lopez (2022) 12 Cal.5th 957, 970

Robert L. v. Superior Court (2003) 30 Cal.4th 894, 899–900, and fn. 6

In re Vaquera (2024) 15 Cal.5th 706, 717, 723, 724 [information alleging One Strike allegation pursuant to sec. 667.61(b)/(e)(4) for an offense against more than one victim was inadequate to provide the defendant notice the prosecution might seek a One Strike sentence pursuant to sec. 667.61(j)(2) for an offense against a child under 14 years of age, even though the facts supporting the allegation were contained in the information].

People v. Sweeney (2016) 4 Cal.App.5th 295, 301 [information alleging gang enhancements under sec. 186.22(b) did not give the defendant adequate notice that an alternate sentence under subd. (d) might apply]

Seventh Holding:

The matter must be remanded for full resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Shaw (2020) 56 Cal.App.5th 582, 588–589 [remanding for a full resentencing hearing as to all counts in light of an unauthorized enhancement]

People v. Delgado (2010) 181 Cal.App.4th 839, 855 [It is perfectly proper for this court to remand for a complete resentencing after finding an error with respect to part of a sentence]

People v. Lopez (2022) 12 Cal.5th 957, 975–976 [remanding for resentencing after finding the alternate penalty provision set forth in sec. 186.22(b)(4) to be inapplicable]

Eighth Holding:

In a case in which it is proper to invoke section 186.22(b)(4), the court cannot both invoke that alternative sentencing scheme and impose the firearm enhancement under section 12022.53(e) on a principal who did not personally use the firearm. Only one of these enhancements may be imposed.

Section 186.22(b)(4) permits an indeterminate life sentence for criminal gang activity if certain conditions are present. Section 12022.53(e)(1) extends liability for the firearm use of another to a principal who did not personally use or discharge the weapon, but who violated subdivision (b) of section 186.22.

Section 12022.53(e)(1) creates an exception to the personal use requirement of section 12022.53(b) through (d) in a prosecution where findings have been made pursuant to section 186.22. In a case where section 186.22 has been found to be applicable, in order for section 12022.53 to apply, it is necessary only for a principal, not the accused, in the commission of the underlying felony to personally use the firearm; personal firearm use by the accused is not required under these specific circumstances.

However, as a consequence of this expanded liability under section 12022.53(e), the Legislature has expressly determined in section 12022.53(e)(2) to preclude the imposition of an additional enhancement under section 186.22 in a gang case unless the accused personally used the firearm.

Authority:

PEN 186.22(d)

PEN 12022.53(e)(2)

People v. Salas (2001) 89 Cal.App.4th 1275, 1281–1282

People v. Brookfield (2009) 47 Cal.4th 583, 593, 595-596 [In choosing which of those two provisions to apply, the trial court must, consistent with section 12022.53(j), choose the provision that will result in a greater sentence.]

Ninth Holding:

The availability of increased punishment is a matter of pleading and proof. The information alleged only that a principal personally discharged and used a firearm. Moreover, the prosecution did not request that the jury be instructed regarding personal firearm use or discharge or the firearm enhancement, and the verdict did not call for a jury finding on this point. There was therefore no finding that the defendant personally used or discharged a firearm in the commission of the crime. As a matter of law, the special circumstance finding in a different count applies only to that count and does not provide a finding sufficient to overcome the bar against dual use of the gang finding set forth in section 12022.53(e)(2).

Authority:

PEN 12022.53(j) [For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact ….]

People v. Masbruch (1996) 13 Cal.4th 1001, 1007 [Whether a defendant used a firearm in the commission of an enumerated sex offense is for the trier of fact to decide.]

Duty of the court, Jurisdiction, Pleading, Sentencing

Case 001120

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion for a Franklin hearing.

First Holding:

Franklin held that youth offenders must have an opportunity to put on the record information relevant to any eventual Penal Code section 3051 youth offender parole hearing.

Authority:

People v. Franklin (2016) 63 Cal.4th 261

In re Cook (2019) 7 Cal.5th 439

Second Holding:

The defendant committed his crime several decades earlier, when he was 21. After the defendant was sentenced, section 3051 became effective in 2014. Section 3051(b) requires the Board of Parole Hearings to conduct a youth offender parole hearing during the 15th, 20th, or 25th year of a youth offender’s incarceration.

The date of the hearing depends on the youth offender’s controlling offense, defined as the offense or enhancement for which any sentencing court imposed the longest term of imprisonment. The section applies to offenders like the defendant who committed their controlling offense when they were 25 years old or younger.

Authority:

PEN 3051

People v. Franklin (2016) 63 Cal.4th 261, 277

Third Holding:

After section 3051’s passage, Franklin held that the section contemplated that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate consideration by the board. Under section 3051(f)(2), persons with information about youth offender may submit statements for review by board. Assembling such mitigating information will typically be more easily done at or near the time of the juvenile’s offense.

Authority:

PEN 3051(f)(2)

People v. Franklin (2016) 63 Cal.4th 261, 283

Fourth Holding:

Cook held that youth offenders whose convictions are final may move in the trial court for a Franklin hearing under section 1203.01. Section 1203.01 provides that postjudgment, a trial court may generate, collect, and transmit information about the defendant and the crime to the Department of Corrections and Rehabilitation.

Authority:

In re Cook (2019) 7 Cal.5th 439

Fifth Holding:

The trial court erred in concluding it did not have jurisdiction to act because the filing of a notice of appeal on an earlier motion for discovery deprived the trial court of jurisdiction to proceed.

Generally, the filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until it determines the appeal and issues the remittitur, thereby divesting the trial court of jurisdiction over anything affecting the judgment.

However, appellate jurisdiction does not divest the trial court of all power to act. Perfection of an appeal stays proceedings in the trial court only of matters embraced in the matter being appealed. The trial court otherwise may act on any matter embraced in the action and not affected by the judgment or order on appeal.

Authority:

CCP 916

People v. Flores (2003) 30 Cal.4th 1059, 1064

Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089

Sixth Holding:

The Franklin motion was unaffected by and unrelated to the order on appeal. That is, the appeal pending when the defendant filed his Franklin motion concerned a motion for postconviction discovery. In contrast, proceedings under Franklin constitute a remedy of evidence preservation.

Also, Franklin proceedings are unrelated to the validity of the defendant’s sentence. Neither the entitlement to a youth offender parole hearing, nor the evidence preservation process disturbs the finality of state convictions. Thus, the Franklin hearing the defendant requested was not embraced in the order on appeal and therefore the trial court had jurisdiction to hear his motion.

Authority:

In re Cook (2019) 7 Cal.5th 439, 446-447, 451

People v. Lizarraga (2020) 56 Cal.App.5th 201, 207 [Franklin hearing does not expose a defendant to increase or decrease in sentence]

Seventh Holding:

The court erred in denying the motion as not being in compliance with Cook. The defendant’s motion was sufficient to initiate Franklin proceedings. The requirements for a Franklin motion are minimal, and the motion need not describe in detail the evidence the youth offender seeks to preserve. Instead, where a motion includes relevant criminal case information and legal authority and establishes eligibility for a youth offender parole hearing, the motion should be granted.

Here, the defendant’s motion cited section 1203.01 and 3051 and Cook in his motion. He stated his qualifying age, the original case number. He identified the controlling offense of murder, requested counsel, said he had never had a Frankling hearing, and asked for an opportunity to make a record of his characteristics as a youth offender. Based on this information, the trial court should have granted the defendant’s motion to initiate Franklin proceedings.

We express no opinion on whether the trial court must hold a formal Franklin hearing.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150, 152 [legally sufficient Franklin motion only requires defendant be given opportunity to place additional evidence in record]

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 893–894 [trial court erred by denying Franklin motion that identified original case, relevant law, defendant’s age, sentence, and relief requested]

In re Cook (2019) 7 Cal.5th 439, 446-447, 459 [court has discretion to determine how to conduct process efficiently]

Appellate Principles, Due process, Fines and fees, Pleading, Sentencing, Standard of review

Case 001092

Posted on by Gary McCurdy

Error and/or relief

It was error to sentence the defendant under the Three Strikes Law, because the prior serious felony was alleged in the information only as a five-year enhancement under section 667(a), not as a strike. In light of Kopp, the matter is remanded to permit the defendant to raise a challenge to the restitution fine of $10,000.

First Holding:

The three strikes law imposes an alternative sentencing scheme if the defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious or violent felony convictions. The three strikes law thus requires that prior felony convictions be pleaded and proved.

In addition to the statutory requirement, the defendant has a due process right to fair notice of the specific sentence enhancements or alternative sentencing schemes that will be invoked to increase punishment. The touchstone of determining the adequacy of an accusatory pleading is whether the defendant had adequate notice of the charges against the defendant.

Authority:

PEN 667(c), (e)

PEN 1170.12(a), (c)

People v. Sawyers (2017) 15 Cal.App.5th 713, 720

Second Holding:

As a preliminary matter, the People contend that the defendant forfeited any argument concerning his three strikes sentence by failing to object at the sentencing hearing. We exercise our discretion to reach the merits of defendant’s argument to forestall any claim of ineffective assistance of counsel.

We also exercise our discretion to reach the merits because the claimed error affected substantial rights by depriving the defendant of timely notice of the potential sentence he faced.

The operative information pled that he had a prior serious felony conviction under section 667(a), which subjected him to a sentence enhancement of five years. But it did not plead that the conviction qualified as a prior strike subjecting him to the alternative sentencing scheme of the three strikes law. The court therefore erred by imposing a three strikes sentence.

It was the People’s burden to properly plead the allegations under the three strikes law, not the defendant’s responsibility to ferret them out.

Authority:

People v. Crittenden (1994) 9 Cal.4th 83, 146

People v. Anderson (2020) 9 Cal.5th 946, 963

People v. Sawyers (2017) 15 Cal.App.5th 713, 727, 726 [court erred by imposing a three strikes sentence when the information alleged a prior serious or violent felony under sec. 1170(h)(3), and a prior prison term enhancement under sec. 667.5(b), but did not refer to the three strikes law]

Third Holding:

The pleading requirement is meant to give sufficient notice to permit the defense to make informed decisions about the case.

Authority:

People v. Anderson (2020) 9 Cal.5th 946, 964 [failure to plead a particular firearm enhancement was not harmless when the defendant received notice midway through the sentencing hearing, which was too late to consider the prosecution’s pretrial plea deal or reshape his trial strategy]

Fourth Holding:

A competent motion by the defense to urge the court to dismiss the strike would have required preparation and could not have been raised orally at the sentencing hearing, when the court announced its intention to impose a three strikes sentence.The violation of the statutory pleading requirement therefore was prejudicial.

And for the same reasons, to the extent that the pleading defect violated the defendant’s due process right to fair notice, the People have not shown that the error was harmless beyond a reasonable doubt.

The violation of the pleading and proof requirement prejudiced the defendant. We therefore vacate his sentence on count 2 and direct the court to resentence him on that count without applying the three strikes law.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

Chapman v. California (1967) 386 U.S. 18, 24

In re Vaquera (2024) 15 Cal.5th 706, 726 [the People’s failure to give the defendant notice of his potential sentence under the one strike law violated his right to due process and was not harmless]

Fifth Holding:

In light of Kopp, decided after the sentencing in this case, we remand the matter for the trial court to consider challenges to the imposition of the $10,000 restitution fine under the federal and state constitutional excessive fines analysis, which considers ability to pay.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

Amelioration, Elements of crime, Jury trial, Pleading, Retroactivity, Sentencing

Case 001032

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, it was error for the court to impose a term of prison under section 12022.53(d), an enhancement that was not pleaded or proved on the count for which it was imposed. It was also error for the court not to consider the impact of AB 333’s amendments on criminal gang activity laws on the defendant’s sentence.

First Holding:

Section 12022.53(d) provides that a person who, in the commission of a felony specified in section 246(a), or section 26100(c) or (d), personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in section 12022.7, or death, to a person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.

Section 12022.53(e)(1) provides that the enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved:

(A) The person violated subdivision (b) of Section 186.22.

(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).

In other words, a firearm enhancement under section 12022.53(e)(1) imposes vicarious liability for another’s personal use of a firearm on aiders and abettors who commit crimes in participation with a criminal street gang.

Authority:

PEN 12022.53

People v. Garcia (2002) 28 Cal.4th 1166, 1171

Second Holding:

Here, the vicarious gang-related firearm enhancement under section 12022.53(d) and (e)(1) was alleged as to count 1. The jury found that enhancement true, but it made no finding defendant personally and intentionally discharged a firearm during the commission of the offense proximately causing GBI or death to a nonaccomplice as required under section 12022.53(d). The verdict form reflects the jury found true the vicarious gang-related firearm enhancement under section 12022.53(e)(1), but does not include a finding regarding the personal and intentional discharge firearm enhancement under section 12022.53(d). This is fatal to imposition of a firearm enhancement under section 12022.53(d).

Further, the trial court dismissed the gang enhancement that was charged, which resulted in section 12022.53(e) being inapplicable. The section 12022.53(d) firearm enhancement must be stricken.

Authority:

PEN 12022.53

Third Holding:

On resentencing, the prosecution asked that if the trial court was not going to reimpose the gang enhancement, that it dismiss the enhancement under AB 333, which would permit the prosecution to retry the gang enhancement to prove that it was valid under the AB 333 amendments. The court declined to decide the retroactivity of AB 333, and instead dismissed it in the interest of justice under section 1385.

By declining to make a decision about the retroactive application of AB 333, the trial court potentially deprived the People of their opportunity to retry the gang enhancement, and the court did not adequately consider whether AB 333 would affect the imposition of the gang-related vicarious firearm enhancement. Without considering the full effect of AB 333, the court exercised less than fully informed sentencing discretion. This was an abuse of discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [a court that is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record]

Fourth Holding:

We remand for a full resentencing. As the firearm enhancement under section 12022.53(d) was not found true by the jury and was unlawfully imposed, it shall be stricken. Given this changed circumstance, resentencing is required to allow the trial court to exercise its sentencing discretion anew.

When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.

Moreover, because AB 333 applies retroactively, the trial court must apply these changes in the law and consider, in the first instance, whether the jury’s gang enhancement finding is viable, and, if not, the People may elect to retry the enhancement.

In the absence of the gang enhancement, the gang-related vicarious firearm enhancement under section 12022.53(d), (e)(1) cannot be imposed as it is predicated on a pled and proven section 186.22(b) gang enhancement.

(Gary note: I was a bit confused by the presence of this observation, because it appeared to me that the appellate court stated that the jury verdict failed to make a finding of personal use by a participant; I cite the principle here, but I was surprised to see it in this case. Is the court saying that the prosecution gets another opportunity to try the 12022.53(d) enhancement that was missing a vital component? I may have misread something–the opinion dealt with a very complicated set of circumstances, peculiar to this case, that arose in the resentencing)

Authority:

People v. Lopez (2025) 17 Cal.5th 388,

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Sek (2022) 74 Cal.App.5th 657, 668, 669–670 [by requiring proof that benefit to gang was more than reputational, AB 333 added a new element to the enhancement; prosecution was entitled to an opportunity to retry the gang enhancement upon remand]

People v. Cooper (2023) 14 Cal.5th 735, 746–747 [where newly required elements were never tried to jury, remedy is to remand and give the People an opportunity to retry affected charges]

Fifth Holding:

Upon resentencing, subject to the principles articulated in Henderson and its progeny, the trial court may not impose a greater aggregate sentence than that imposed at the resentencing.

Authority:

People v. Henderson (1963) 60 Cal.2d 482, 495–497

People v. Ali (1967) 66 Cal.2d 277, 281

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Trammel (2023) 97 Cal.App.5th 415, 434

People v. Serrato (1973) 9 Cal.3d 753, 763–764, [exception to Henderson applies only to unauthorized sentences that were unlawfully lenient to the detriment of the People]

Discretion, Duty of the court, Pleading, Probation Parole PRCS, Sentencing, Standard of review

Case 001023

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in summarily denying the defendant’s motion filed under Franklin and Penal Code section 1203.01 for a hearing to set forth youth-related evidence for consideration at future parole hearings.

We conclude that the trial court erred by denying the defendant’s motion absent evidence that the defendant had past opportunities to present youth-related evidence and absent information regarding the substance of the evidence that the defendant intended to present.

We decline to issue an order that the trial court grant the request for a Franklin hearing. We simply direct the court to hold a proper hearing on the motion to determine whether a Franklin hearing is warranted.

First Holding:

Section 3051(a)(1) provides for a youth offender parole hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or younger at the time of his or her controlling offense.

Section 4801(c) provides that, when a prisoner committed his or her controlling offense, as defined in section 3051(a), when he or she was 25 years of age or younger, the board, in reviewing a prisoner’s suitability for parole pursuant to section 3041.5, shall give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.

Authority:

PEN 3051

PEN 4801(c)

Second Holding:

In Franklin, the Supreme Court held a defendant who did not have an opportunity to make a record of mitigating youth-related factors relevant to a later youth offender parole hearing should have an opportunity to make a record on remand.

The court explained that sections 3051 and 4801 contemplate that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board’s consideration. Assembling such statements about the individual before the crime is typically a task more easily done at or near the time of the juvenile’s offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away.

The Supreme Court remanded the matter to determine whether the defendant was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing, and if not, to allow the defendant to 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.

Authority:

People v. Franklin (2016) 63 Cal.4th 261, 283-284

Third Holding:

In Cook, the Supreme Court held that a juvenile offender with a final judgment could move for a postjudgment proceeding under section 1203.01, to present evidence of youth-related factors. The Cook court reasoned that recognizing the court’s authority under section 1203.01 to gather youth offender evidence effectuates sections 3051 and 4801.

For inmates who seek to preserve evidence following a final judgment, the proper avenue is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and the Cook decision that establishes the inmate’s entitlement to a youth offender parole hearing and indicates when such hearing is anticipated to take place, or if one or more hearings have already occurred.

Consistent with Franklin and the court’s inherent authority, the offender shall have the opportunity to 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.

Neither the passage of significant time, nor the fact that the defendant has had prior parole hearings is a bar to the court granting a Franklin hearing. The Legislature intended that the benefits of youth offender parole hearings be available even to those prisoners with decades-old convictions.

Authority:

PEN 1203.1

In re Cook (2019) 7 Cal.5th 439, 453, 458-459

People v. Benzler (2021) 72 Cal.App.5th 743, 751

Fourth Holding:

We review the trial court’s denial of a Franklin proceeding for abuse of discretion. In deciding whether the trial court has abused its discretion we are required to ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

Critical to the resolution of this case, we note that when a trial court’s decision rests on an error of law, that decision is an abuse of discretion.

Authority:

People v. Benzler (2021) 72 Cal.App.5th 743, 749

Fifth Holding:

The defendant’s motion contained sufficient information. Nothing in Cook indicates the motion bust describe with precision the vidence the offender seeks to introduce. The court’s commentary in Cook about what a motion should include is not the same as creating mandatory pleading requirements.

Courts have found there are no mandatory pleading requirements for a Franklin motion, and the required showing to initiate the process for a Franklin proceeding is minimal: due to the limited resources generally available to inmates, the Cook court reasonably envisioned a simple pleading mechanism to get the process started.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896