Opinion
E073115
12-30-2020
THE PEOPLE, Plaintiff and Respondent, v. DAYVION JONES, Defendant and Appellant.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR065916) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed. Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2016, when he was just over 18 years old, appellant and defendant, Dayvion Jones, and his cohort shot and killed the victim in a gang-related murder. On May 8, 2019, a jury convicted defendant of one count of first degree murder. (Pen. Code, § 187, subd. (a); count 1.) The jury also found true firearm enhancements under section 12022.53, subdivisions (b), (c), (d), and (e)(1), and the allegation that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
All further statutory references will be to the Penal Code unless otherwise noted.
On June 6, 2019, a trial court sentenced defendant to an aggregate sentence of 50 years to life. At sentencing, the court noted that defendant qualified under the youthful offender parole statute and would be given the opportunity to have a parole date in 25 years rather than 50 years.
On appeal, defendant requests that we remand the matter and direct the trial court to hold a Franklin hearing to allow him the opportunity to make a record of mitigating youth-related factors. We affirm without prejudice to defendant filing a motion under section 1203.01.
People v. Franklin (2016) 63 Cal.4th 261 (Franklin). --------
DISCUSSION
Remand for a Franklin Hearing Is Not Warranted
Defendant contends he is entitled to a remand for a Franklin hearing. We disagree.
We recently addressed this issue in People v. Medrano (2019) 40 Cal.App.5th 961, 963 (Medrano). "In Franklin, supra, 63 Cal.4th 261, the Supreme Court held that when a juvenile offender receives an indeterminate life sentence, the offender must be 'given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth.' [Citation.] [Franklin's] case was remanded to the trial court 'for the limited purpose of determining whether [the offender] was afforded an adequate opportunity to make a record of information' relevant to his eventual youth offender parole hearing. [Citation.]" (Medrano, supra, 40 Cal.App.5th at p. 967.)
We observed that "[s]ection 3051 was amended effective January 1, 2016, to require youth offender parole hearings for offenders who were 25 years old or younger at the time of the controlling offense. [Citation.] The Supreme Court decided Franklin in May 2016." (Medrano, supra, 40 Cal.App.5th at p. 967.) We noted that "Medrano was sentenced in December 2017 for offenses he committed when he was 19 years old. Thus, the Supreme Court decision establishing [his] right to present mitigating youth-related evidence at sentencing was in place for one and one-half years before [he] was sentenced." (Ibid.) Moreover, the record "contain[ed] no indication that Medrano was not given an adequate opportunity to make a record of mitigating youth-related evidence as contemplated in Franklin." (Ibid.)
We recognized that a juvenile offender may file a motion under section 1203.01 and In re Cook (2019) 7 Cal.5th 439, 446-447 (Cook) "for the purpose of making a record of mitigating youth-related evidence." (Medrano, supra, 40 Cal.App.5th at p. 968.) We thus concluded, "given the availability of the motion hearing described in Cook, we see no basis to order the same relief that was granted in Franklin. Instead, we affirm without prejudice to [the defendant's] filing a motion 'for a Franklin proceeding under the authority of section 1203.01' and Cook." (Ibid.)
Defendant here was sentenced in June 2019 for offenses he committed when he was 18 years old. Therefore, Franklin, supra, 63 Cal.4th 261, was in place for three years before defendant was sentenced. As in Medrano, the record here "contains no indication that [defendant] was not given an adequate opportunity to make a record of mitigating youth-related evidence as contemplated in Franklin." (Medrano, supra, 40 Cal.App.5th at p. 967.) In other words, "[t]he record does not indicate that [his] opportunity to exercise that right was inadequate in any respect. Rather, it appears that he merely failed—whether by choice or by inadvertence—to exercise it." (Ibid.)
Defendant acknowledges that at the time of his sentencing Franklin had been decided, and he did not request a Franklin hearing. He also recognizes that we declined to remand for a Franklin hearing in Medrano under similar circumstances, and we concluded the proper remedy was to affirm without prejudice to file a motion under section 1203.01. Nonetheless, he asks us to "reconsider this approach" and instead order a remand for the trial court to conduct a Franklin hearing. Defendant has given us no persuasive reason to depart from our holding in Medrano.
We therefore conclude, as we did in Medrano, that the appropriate remedy is to affirm the judgment without prejudice to defendant "filing a motion 'for a Franklin proceeding under the authority of section 1203.01' and Cook." (Medrano, supra, 40 Cal.App.5th at p. 968.)
DISPOSITION
The judgment is affirmed without prejudice to defendant filing a motion for a Franklin proceeding under the authority of section 1203.01 and Cook, supra, 7 Cal.5th 439.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. SLOUGH
J.