Opinion
A165669
05-10-2023
PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JOHNNY LEROY REED, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 149117A)
SWOPE, J. [*]
In 2005, defendant Johnny Leroy Reed and a co-defendant were convicted of the first degree murder of Harold Butler, Jr., the premeditated attempted murders of Akwood Rollins and Jaswant Deol, and assault with a semiautomatic firearm on both Luis Leon and Aracelli Leon, all arising from a May 2004 shooting incident in and around a liquor store. The trial court subsequently sentenced Reed to 98 years to life in state prison. (People v. Reed (Aug. 30, 2007, A111595) [nonpub. opn.].) Although 17 years old at the time of the underlying offenses, Reed was tried as an adult.
Years later, after an extended round of habeas litigation, the Alameda County Superior Court granted Reed's habeas petition, mandating that a hearing be conducted pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin) to make a record of any mitigating evidence tied to Reed's youth for use at future parole hearings. In April 2022, while the Franklin hearing remained pending, Reed filed a motion in the habeas proceedings requesting that a transfer hearing be held in juvenile court pursuant to Proposition 57. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara) [pursuant to Proposition 57 prosecutors may no longer charge juveniles directly in adult court].) The trial court denied the motion, concluding that the underlying judgment in this matter had been final for over a decade and the "Franklin activity" in the case did not reopen that judgment. We agree and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2005, Reed was convicted of one count of first degree murder (Pen. Code, § 187), two counts of premeditated attempted murder (§§ 187, 664), and two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). With respect to the murder conviction, the jury found true an allegation that Reed personally discharged a firearm proximately causing death. (§§ 12022.5, subd. (a)(1), 12022.53, subd. (d).) Both attempted murder convictions were enhanced by findings that Reed personally discharged a firearm. (§§ 12022.5, subd. (a)(1), 12022.53, (c).) Finally, the jury found true firearm use enhancements with respect to each count of murder or attempted murder. (§ 12022.5, subd. (a).) As stated above, Reed was 17 years old at the time of the underlying crimes.
All statutory references of the Penal Code unless otherwise specified.
At sentencing, defense counsel briefly raised the issue of Reed's youth, arguing: "I would just like to point out to the court that Mr. Reed was a minor at the time of the commission of these offenses and was found fit to be in adult court, but youthfulness is, I think, should be considered as a mitigating factor and the court can exercise its discretion." The court responded: "I think Mr. Reed's conduct here has pretty well taken care of any mitigation his youth might bring to this courtroom." It went on to sentence him to 98 years to life in state prison.
When given an opportunity to address the court after a victim impact statement, Reed had declared: "[My co-defendant] and I did not kill nobody. She can suck my dick."
We affirmed Reed's conviction in August 2007. (People v. Reed, supra, A111595.) And the California Supreme Court subsequently denied review on November 14, 2007. (People v. Reed (Nov. 14, 2007, S157018).) Thus, Reed's conviction became final on February 12, 2008. (See People v. Lizarraga (2020) 56 Cal.App.5th 201, 206 (Lizarraga) [judgment final 90 days after California Supreme Court denies review, when the time for seeking review in the United States Supreme Court has passed].)
In July 2013, Reed filed a petition for habeas corpus in Alameda County Superior Court, alleging that his sentence of 98 years to life in prison violated the Eighth Amendment's prohibition against cruel and unusual punishment under Miller v. Alabama (2012) 567 U.S. 460 (Miller). The court eventually denied the petition in April 2016, concluding that the matter had been rendered moot by the adoption of section 3051. (See Franklin, supra, 63 Cal.4th at pp. 279-280 [holding that "the combined operation of section 3051, section 3046, subdivision (c), and section 4801," which provide a "meaningful opportunity for release" at year 25 for youthful offenders, rendered moot Eighth Amendment challenges under Miller].) Reed then filed a petition for habeas corpus raising the same issues in this court, which we summarily denied as moot in July 2016, citing Franklin.
Thereafter, the California Supreme Court granted Reed's petition for review, issuing the following order: "The petition for review is granted. The matter is transferred to the Court of Appeal, First Appellate District, Division One. The court is ordered to vacate its summary denial dated July 19, 2016, and is further ordered to issue an order to show cause, returnable before the Alameda County Superior Court. The Secretary of the Department of Corrections and Rehabilitation is to be ordered to show cause, when the matter is placed on calendar, why petitioner is not entitled to make a record of 'mitigating evidence tied to his youth.' (See People v. Franklin (2016) 63 Cal.4th 261, 268-269, 283-284.) The return is to be filed on or before October 14, 2016." We responded by vacating our summary denial and issuing an order to show cause as directed by the Supreme Court.
In October 2016, the Alameda County District Attorney filed an informal response to our order to show cause in the superior court, conceding that Reed was entitled to a Franklin hearing. The superior court then granted the habeas petition and issued the following order: "The matter is REMANDED to Department 9 to conduct a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261. The matter shall be placed on Department 9's calendar on Wednesday, November 9, 2016 at 10:00 a.m. for appointment of counsel and to set a hearing date." The Franklin hearing was continued for various reasons over the course of years until, on March 24, 2022, while the matter was still pending, Reed filed a motion in the proceedings for a transfer hearing in juvenile court. Defense counsel argued that the reforms made by Proposition 57 that created the transfer hearing process were so fundamental that they required retroactive application beyond the scope of the remittitur and that the pending habeas petition "cracks open the barrel, so to speak, and that's what gets him a juvenile transfer hearing." On July 7, 2022, the court denied the motion for a transfer hearing. Specifically, citing Lizarraga, supra, 56 Cal.App.5th 201, the court opined: "I do find that the judgment was final in this case in 2007-2008 and that the Franklin activity in this case does not reopen the matter." (Italics added.) Reed timely appealed.
II. DISCUSSION
A. Legal Framework
In 2012, the United States Supreme Court held that the Eighth Amendment to the federal constitution prohibits a mandatory life without parole (LWOP) sentence for a juvenile offender who commits homicide. (Miller, supra, 567 U.S. at p. 465.) Shortly thereafter, the California Supreme Court held that the prohibition on life without parole sentences for all juvenile nonhomicide offenders established in Graham v. Florida (2010) 560 U.S. 48 (Graham) applied to sentences that were the "functional equivalent of a life without parole sentence." (People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero) [term of 110 years to life].)
In the wake of Miller, Graham, and Caballero, the Legislature amended our juvenile sentencing laws to bring them into conformity with constitutional mandates. (See Senate Bill No. 260 (2013-2014 Reg. Sess.) §§ 1, 3-5.) Thus, section 3051 now provides a youthful offender such as Reed with the possibility of release after 25 years of imprisonment. (§ 3051, subd. (b)(3).) And, pursuant to section 4801, the Board of Parole Hearings (Board) is required to "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" when reviewing a youthful offender's suitability for parole. (§ 4801, subd. (c).)
As mentioned above, the Supreme Court concluded in Franklin, supra, 63 Cal.4th 261 that these statutory changes mooted any constitutional challenges to lengthy juvenile sentences because they were no longer functionally equivalent to an LWOP sentence. (Id. at pp. 268-269, 276-280.) The Franklin Court further opined that the "statutory text makes clear that the Legislature intended youth offender parole hearings to apply retrospectively, that is, to all eligible youth offenders regardless of the date of conviction." (Id. at p. 278.) However, the Court was concerned that sentencing proceedings which took place before Miller, Graham, and Caballero such as Franklin's might be missing necessary mitigation information because the trial court deemed such information irrelevant to its pronouncement of a mandatory sentence. (Franklin, at pp. 282-284.) It therefore remanded the matter so that a so-called Franklin hearing could be held. (Id. at pp. 286-287.) The goal of such a hearing "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 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.'" (Franklin, at p. 284.)
However, the Franklin Court emphasized that "[t]he Legislature did not envision that the original sentences of eligible youth offenders would be vacated and that new sentences would be imposed to reflect parole eligibility during the 15th, 20th, or 25th year of incarceration." (Franklin, supra, 63 Cal.4th at p. 278.) Thus, the Court "affirm[ed] Franklin's sentence." (Id. at p. 286.) And the remand was "for the limited purpose of determining whether Franklin was afforded 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." (Id. at pp. 286-287; see also In re Cook (2019) 7 Cal.5th 439, 451 (Cook) ["[A] Franklin proceeding is unrelated to the validity of the defendant's sentence. Neither the entitlement to a youth offender parole hearing, nor the evidence preservation process 'disturb[s] the finality of state convictions.' "].)
Shortly after Franklin was decided, "the voters of California enacted Proposition 57, a measure that amended the law governing the punishment of juvenile offenses in adult criminal court by requiring hearings to determine whether the offenses should instead be heard in juvenile court. Adjudicating these offenses in juvenile court typically results in less severe punishment for the juvenile offender." (People v. Padilla (2022) 13 Cal.5th 152, 158 (Padilla).) Pursuant to Proposition 57," '[c]ertain categories of minors . . . can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated.'" (Lara, supra, 4 Cal.4th at p. 305; see Welf. &Inst. Code, § 707.)
In Lara, supra, 4 Cal.4th 299, our Supreme Court concluded that the transfer hearing procedure adopted by Proposition 57 was ameliorative and therefore should apply retroactively "to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Id. at pp. 304-305.) Its analysis was based on the general rule that "in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not." (Id. at p. 308.) Thus, a juvenile originally convicted in adult court is entitled to a transfer hearing only if his or her judgment of conviction is not final.
B. A Franklin Proceeding Does Not Reopen the Judgment
On appeal, Reed argues that a split of appellate authority previously existed on the issue of whether a transfer hearing is also required when a defendant, who was a minor when he or she committed a crime, successfully files a petition for habeas corpus requesting a Franklin hearing. (See Lizarraga, supra, 56 Cal.App.5th 210; People v. Hargis (2019) 33 Cal.App.5th 199 (Hargis).) According to Reed, this split was resolved in his favor by Padilla, supra, 13 Cal.5th 152, which he asserts holds that, when a juvenile has successfully petitioned for habeas corpus relief requesting resentencing under Miller, that juvenile's sentence is no longer final, and he or she is therefore entitled to a transfer hearing. Reed, however, misconstrues the relevant case law in this context.
First, there is persuasive precedent contrary to Reed's argument. For example, the Third District recently and baldly concluded: "Contrary to [the] defendant's contention, a Franklin hearing does not reopen a final judgment or sentencing. [Citation.] Rather, it is an 'evidence preservation process' to gather evidence for the eventual determination of parole, not a process to reopen or reconsider a sentence. [Citations.] Indeed, 'a Franklin proceeding is unrelated to the validity of the defendant's sentence. Neither the entitlement to a youth offender parole hearing, nor the evidence preservation process "disturb[s] the finality of state convictions." '" (People v. White (2022) 86 Cal.App.5th 1229, 1238 (White), fn. omitted and quoting Cook, supra, 7 Cal.5th at pp. 446, 450-451; accord, Lizarraga, supra, 56 Cal.App.5th at p. 207 [Second District rejecting the defendant's argument "that the grant of a Franklin hearing essentially created a new sentencing hearing thus effectively vacating the earlier finality"].) In addition to quoting the Supreme Court's language in Cook, the White court also relied on the language from Franklin we have quoted above highlighting that its remand was a limited one and did not involve resentencing.
Padilla and Hargis, cited by Reed, are distinguishable on this basis. In Padilla, supra, 13 Cal.5th 152, the defendant was sentenced to LWOP for a murder he committed when he was 16. (Id. at p. 159.) After Miller held that a mandatory LWOP sentence for a juvenile offender violated the Eighth Amendment, Padilla filed a petition for habeas corpus seeking resentencing consistent with Miller. (Padilla, at p. 159.) The trial court granted the petition, vacated the original LWOP sentence, and ordered a new sentencing hearing. (Ibid.) The trial court again imposed an LWOP sentence, and Padilla appealed. While the appeal was pending, the United States Supreme Court issued Montgomery v. Louisiana (2016) 577 U.S. 190, and the appellate court again vacated Padilla's sentence and remanded for a new hearing consistent with that decision. (Padilla, at p. 159.) Two weeks later, the voters enacted Proposition 57. (Ibid.)
In concluding that the benefits of Proposition 57 applied retroactively to Padilla's case, the Supreme Court reasoned: "It is clear that Padilla's present appeal from his resentencing is part of direct review of a nonfinal judgment, not collateral review of a final judgment. The court had the power to impose any sentence available for his crime, including life without the possibility of parole if it found that sentence appropriate in light of Padilla's' "youth and its attendant characteristics.'" [Citation.] Indeed, while collateral review is an attack on a final judgment, that is plainly not the posture here. When Padilla's new sentence was imposed, there was no final judgment to attack because his prior sentence had been vacated." (Padilla, supra, 13 Cal.5th at p. 163.)
Similarly, in Hargis, supra, 33 Cal.App.5th 199, the defendant's case on direct appeal was remanded pursuant to Franklin. Proposition 57 was enacted one week after the appellate opinion was filed affirming the judgment and remanding the matter. (Hargis, at p. 202.) The Hargis court found that the case was not yet final because the remittitur had yet to issue when the change in law occurred. Specifically, the appellate court reasoned:" [I]t is indisputable that defendant, who was 16 years old at the time of the offenses of which he was convicted, is entitled to a juvenile fitness/transfer hearing pursuant to Proposition 57, as he was charged directly in adult court and his judgment was not final at the time the new law was enacted." (Id., at pp. 204-205.) In remanding the matter so that a transfer hearing could be held, the court reiterated that "a Franklin hearing does not affect the judgment." (Hargis, at pp. 208, 210.)
Nor does People v. Gentile (2020) 10 Cal.5th 830 (Gentile), cited by Reed in reply, support his claim. As the Supreme Court has held:" '[I]n the absence of an express retroactivity provision . . . [or] unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application,' ameliorative legislation does not affect convictions that have become final." (People v. Martinez (2018) 4 Cal.5th 647, 655.)
"Consistent with this view, [our high court has] approved laws that alter indisputably final cases when they create new rules or procedures by which a defendant may seek relief." (Padilla, supra, 13 Cal.5th at p. 161; see also Hargis, supra, 33 Cal.App.5th at p. 210 [" '[I]f the Legislature wanted to provide a specific procedure via petition or motion to reopen final cases for resentencing, it could have done so.' "].) Gentile is such a case. (Gentile, at p. 853 [considering Senate Bill 1437 which "creates a specific mechanism for retroactive application of its ameliorative provisions" to final cases] .) This is not.
Gentile was abrogated in part on another ground in Stats. 2021, ch. 551, § 2, which amended section 1172.6, subdivision (g) to expressly allow defendants whose convictions are not final to seek relief under Senate Bill 1437 on direct appeal.
Finally, People v. Esquivel (2021) 11 Cal.5th 671 (Esquivel), also cited by Reed, concluded that "a case in which a defendant is placed on probation with execution of an imposed state prison sentence suspended is not yet final for [retroactivity purposes] if the defendant may still timely obtain direct review of an order revoking probation and causing the state prison sentence to take effect." (Id. at p. 673.) The Supreme Court reasoned that the "case was not final, for purposes of the [In re] Estrada [(1965) 63 Cal.2d 740] presumption, because the 'criminal prosecution or proceeding' brought against defendant was not complete when the ameliorative legislation at issue took effect." (Esquivel, supra, at p. 678; see also Padilla, supra, 13 Cal.5th at p. 162 ["[a] case is final when 'the criminal proceeding as a whole' has ended [citation] and 'the courts can no longer provide a remedy to a defendant on direct review' "].)
However, even under this perhaps more elastic definition of finality, Reed's argument fails. As stated above, a Franklin hearing "is an 'evidence preservation process' to gather evidence for the eventual determination of parole, not a process to reopen or reconsider a sentence." (White, supra, 86 Cal.App.5th at p. 1238.) Here, Reed's criminal proceeding as a whole has ended. The Franklin hearing is simply a mechanism for strengthening any showing he may subsequently make to the Board when seeking parole.
Indeed, in Cook, supra, 7 Cal.5th 439, the Supreme Court made even clearer the distinction between an ancillary Franklin proceeding and an underlying final judgment of conviction. In that case, the Court considered what mechanism a sentenced prisoner whose conviction is final can use to seek the remedy of evidence preservation under Franklin. (Cook, at pp. 446-447.) It noted that section 1203.01 allows a trial court, postjudgment, to "generate, collect, and transmit information about the defendant and the crime to the Department of Corrections and Rehabilitation." (Cook, at p. 447.) The statute is by no means a perfect fit as it specifically mentions only "statements prepared by the court, prosecutor, defense counsel, and investigating law enforcement agency." (Ibid.) Nevertheless, the Court used its "inherent authority under Code of Civil Procedure section 187 to authorize additional evidence preservation consistent with [its] holding in Franklin. . ." pursuant to section 1203.01. (Cook, at pp. 447, 452-454.) In doing so, the Court found the Franklin remedy "entirely consistent with section 1203.01, which has nothing to do with the validity of a trial court's judgment. The section does not define procedures that will culminate in a new judgment and does not contemplate modification of the original judgment." (Cook, at p. 457, italics added.)
In sum, Reed's conviction is final, and the grant of a Franklin hearing in the case did not alter this fundamental fact. He is thus not entitled to the ameliorative benefits of Proposition 57. The trial court therefore properly denied Reed's request for a transfer hearing.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: MARGULIES, ACTING P.J. BANKE, J.
[*] Judge of the San Mateo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.