Opinion
B279545
10-07-2019
In re JOHNNY VILLALOBOS, on Habeas Corpus.
Laura S. Kelly, for Petitioner and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General and Rene Judkiewicz, Deputy Attorney General, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA040107) ORIGINAL PROCEEDINGS. Petition for writ of habeas corpus after a judgment of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Petition denied. Laura S. Kelly, for Petitioner and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General and Rene Judkiewicz, Deputy Attorney General, for Respondent.
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In 2010, a jury convicted petitioner Johnny Villalobos of first degree murder, and found true a special allegation asserting that he had personally and intentionally discharged a firearm, causing great bodily injury and death. Villalobos was sentenced to an aggregate term of 50 years to life in prison.
In October of 2016, Villalobos filed a petition for writ of habeas corpus requesting a hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin) to make a record of information relevant to his eventual youth offender parole hearing. (See Pen. Code, §§ 3051, 4086.) The trial court denied the petition, concluding it lacked jurisdiction to issue a writ of habeas corpus because Villalobos had not challenged the legality of his incarceration.
Villalobos then filed a petition for writ of habeas corpus in this court seeking an order requiring the trial court to hold a hearing pursuant to Franklin. We issued an order to show cause, and, on August 16, 2017, granted the petition. The People's petition for review was granted by the Supreme Court in November 2017, and further action deferred pending consideration of a related issue in In re Cook on Habeas Corpus (S240153). The Supreme Court decided Cook on June 3, 2019 (In re Cook (2019) 7 Cal.5th 439 (Cook)). On July 31, 2019, the Supreme Court transferred this matter to this court for reconsideration in light of Cook. The parties have filed supplemental briefs in this court. We now deny the petition, without prejudice to Villalobos' filing a motion for relief pursuant to Penal Code section 1203.01 in the trial court.
FACTUAL BACKGROUND
A. Villalobos's Conviction and Sentencing
In 2007, petitioner Johnny Villalobos, then 18 years old, shot and killed Juan Valdez during an altercation at a party. On June 25, 2008, the Los Angeles District Attorney filed an information charging Villalobos with a single count of murder (Pen. Code, § 187, subd. (a)). The information also included special allegations asserting he had personally and intentionally discharged a firearm during the offense, causing great bodily injury and death (§ 12022.53, subd. (d)), and that the offense had been committed for the benefit of a street gang. (§ 186.22, subd. (b).) The jury convicted Villalobos of first degree murder, and found both special allegations to be true.
Unless otherwise noted, all further statutory citations are to the Penal Code.
At sentencing, Villalobos did not present any evidence related to his age at the time of the offense. The court sentenced Villalobos to an aggregate term of 60 years to life in prison, which consisted of: (1) a term of 25 years to life in prison for first degree murder; (2) a consecutive term of 25 years to life in prison for the firearm enhancement (see § 12022.53, subd. (d)); and (3) an additional consecutive term of 10 years in prison for the gang enhancement (see § 186.22, subd. (b)(1)(C)).
In 2013, we reversed the gang enhancement for lack of sufficient evidence, and affirmed the judgment in all other respects. (People v. Villalobos (Aug. 14, 2013, No. B239739) [nonpub. opn.].) At his resentencing, which occurred in December of 2013, the prosecution informed the trial court that it did not intend to retry the gang allegation. No evidence was presented at the hearing, and the court sentenced Villalobos to an aggregate term of 50 years to life in prison, which consisted of a term of 25 years to life in prison for first degree murder, and a consecutive term of 25 years to life in prison for the firearm enhancement (§ 12022.53, subd. (d)). Villalobos filed a second appeal, and we affirmed the judgment. (People v. Villalobos (Oct. 27, 2014, No. B254393) [nonpub. opn.].)
B. Villalobos's Petition for Writ of Habeas Corpus
On October 28, 2016, Villalobos filed a petition for writ of habeas corpus requesting a "hearing under People v. Franklin (2016) 63 Cal.4th 261 . . . to 'make a record of "mitigating evidence tied to his youth"'" for use at his eventual youth offender parole hearing. (See §§ 3051, 4086.) Villalobos argued that because he was not eligible for a youth offender parole hearing at the time he was sentenced, he "did not have sufficient incentive or opportunity to present mitigating evidence related to his youth." Villalobos also requested that the court appoint counsel to represent him in the proceedings.
The trial court denied the petition, concluding that it lacked authority to issue a writ of habeas corpus because Villalobos had not challenged the legality of his incarceration. The court did, however, invite Villalobos to "submit whatever documents he feels will be relevant at his eventual youth offender parole hearing. . . . [¶] . . . . If petitioner feels that procedure is insufficient, he may request a further hearing, detailing why testimony is necessary under the circumstances."
Villalobos then filed a petition for writ of habeas corpus in this court requesting that we issue an order compelling the trial court to: (1) hold "a hearing at which he will be permitted to make a record of mitigating evidence" tied to his youth; and (2) appoint counsel to represent him in the proceedings. We issued an order to show cause. (B279545, August 16, 2017.) The Attorney General petitioned for review, and the Supreme Court returned the matter to this court for reconsideration in light of In re Cook (2019) 7 Cal.5th 439 (Cook).
DISCUSSION
A. Legal Developments Regarding Life Sentences for Juvenile and Youth Offenders
1. The Eighth Amendment's prohibition against mandatory life sentences for juvenile offenders
Shortly after Villalobos's original sentencing in this matter, the United States Supreme Court held in Graham v. Florida (2010) 560 U.S. 48, 74 (Graham) that the Eighth Amendment prohibits states from sentencing a juvenile convicted of nonhomicide offenses to life imprisonment without the possibility of parole. The Court mandated that juvenile offenders be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (Id. at p. 75.) "Graham's holding was based on the following [four factors]: (1) scientific studies showing fundamental differences between the brains of juveniles and adults; (2) a juvenile's capacity for change as he matures, which shows that his crimes are less likely the result of an inalterably depraved character; (3) the notion that it is morally misguided to equate a minor's failings with those of an adult; and (4) the fact that even though nonhomicide crimes may have devastating effects, they cannot be compared to murder in terms of severity and irrevocability." (People v. Murray (2012) 203 Cal.App.4th 277, 282-283 [citing Graham, supra, 560 U.S. at pp. 67-70 [disapproved of on other grounds by People v. Gutierrez (2014) 58 Cal.4th 1354].)
Two years later, in Miller v. Alabama (2012) 567 U.S. 460 (Miller), the Supreme Court held that the Eighth Amendment also precludes states from imposing mandatory sentences of life without the possibility of parole for homicide offenses on juveniles. "The Miller court explained that a mandatory life sentence 'precludes consideration of [the juvenile's] chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.' [Citation.] Although the Miller court did not prohibit sentencing juvenile offenders convicted of murder to life imprisonment without the possibility of parole, it held that sentencing courts must 'take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.' [Citation.]" (People v. Jones (2017) 7 Cal.App.5th 787, 817 (Jones).)
In People v. Caballero (2012) 55 Cal.4th 262 (Caballero), the California Supreme Court applied Graham and Miller to a juvenile offender who had been sentenced to 110 years to life in prison for nonhomicide offenses. The Court concluded that "sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment." (Id. at p. 268.) The Court explained that "[a]lthough proper authorities may later determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future." (Ibid.)
In a footnote, the Court "urge[d]" the Legislature to address the issue by "establishing a parole eligibility mechanism that provides a defendant serving a de facto life sentence without possibility of parole for nonhomicide crimes that he or she committed as a juvenile with the opportunity to obtain release on a showing of rehabilitation and maturity." (Caballero, supra, 55 Cal.4th at p. 269, fn. 5.)
2. The Legislature's adoption of youth offender parole hearing procedures
In response to Caballero, "the Legislature passed Senate Bill No. 260, which became effective January 1, 2014, and added sections 3051, 3046, subdivision (c), and 4801, subdivision (c) to the Penal Code." (Franklin, supra, 63 Cal.4th at pp. 276-277 ["the Legislature passed Senate Bill No. 260 explicitly to bring juvenile sentencing into conformity with Graham, Miller, and Caballero"].) The purpose of the act was to "'establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity.' [Citation]." (Franklin, supra, 63 Cal.4th at p. 277.) When adopted in 2013, the statute and the associated Penal Code provisions applied only to persons who were under 18 years of age at the time of their offense. In 2015 and 2017, however, the Legislature amended each of the Penal Code provisions; they are now applicable to persons who were under 25 years of age at the time of their offense. (Ibid. [citing Stats. 2015, ch. 471], see Stats. 2017, ch. 675, § 1.)
Section 3051, which our Supreme Court has characterized as "the heart of Senate Bill No. 260," requires the Board of Parole Hearings (the Board) to "conduct a 'youth offender parole hearing' during the 15th, 20th, or 25th year of a juvenile offender's incarceration. [Citation.]. . . . A juvenile offender whose controlling offense carries a term of 25 years to life or greater is 'eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (Franklin, supra, 63 Cal.4th at p. 277.)
Section 3051, subdivision (f) describes various types of evidence the Board may consider at a youth offender parole hearing. Subdivision (f)(1) provides, in relevant part: "In assessing growth and maturity, psychological evaluations and risk assessment instruments, if used by the board, . . . shall take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual." Subdivision (f)(2) further provides that "Family members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime or his or her growth and maturity since the time of the crime may submit statements for review by the board."
Section 4081 further provides that when reviewing the parole suitability of a prisoner who was under 25 years of age at the time of the offense, the Board must "give great weight to the diminished culpability of juveniles 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." (§ 4801, subd. (c).)
3. People v. Franklin
In Franklin, supra, 63 Cal.4th 276, a juvenile offender who had been convicted of shooting and killing another teenager argued that his sentence of 50 years to life in prison (comprised of two mandatory terms of 25 years to life) qualified as a de facto life sentence in violation of the Eighth Amendment. The Court held that the defendant's constitutional challenge to his sentence had been mooted by the Legislature's enactment of sections 3051 and 4086, explaining: "[S]ection 3051 has superseded [defendant's] sentence so that notwithstanding his original term of 50 years to life, he is eligible for a 'youth offender parole hearing' during the 25th year of his sentence. Crucially, the Legislature's recent enactment also requires the Board not just to consider but to 'give great weight to the diminished culpability of juveniles 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.' [Citation.] For those juvenile offenders eligible for youth offender parole hearings, the provisions of Senate Bill No. 260 are designed to ensure they will have a meaningful opportunity for release no more than 25 years into their incarceration." (Id. at p. 277.)
The Court further held, however, that although the defendant "need not be resentenced," it was unclear "whether [he] had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) The Court explained that "the statutes . . . 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 [information] . . . 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." (Id. at pp. 283-284.)
The Court further explained that because the defendant had been sentenced before Senate Bill 260 was enacted, "the trial court understandably saw no relevance to . . . evidence [of youth-related factors] at sentencing." (Franklin, supra, 63 Cal.4th at p. 269.) In light of the "changed legal landscape," the Court concluded the case should be remanded "so that the trial court may determine whether [the defendant] was afforded sufficient opportunity to make such a record at sentencing." (Ibid.) The Court further directed that if the "the trial court determines that [the defendant] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony . . . . [The defendant] may 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. The goal of any such proceeding 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' [Citation.]" (Id. at p. 284.)
B. Villalobos Is Entitled to a File A Motion Under Section 1203 .01
In Cook, supra, 7 Cal.5th 439, the Supreme Court considered the means by which an offender with a final conviction could seek to preserve evidence for a future youth parole hearing. The Court concluded that section 1203.01 provided an adequate remedy at law, and thus a motion under the authority of that statute, rather than a petition for a writ of habeas corpus, was the proper means to seek relief. (Id. at p. 447.) Villalobos is entitled to the same remedy.
In its supplemental briefing, the Attorney General concedes that Villalobos is entitled to file a section 1203.01 motion in the trial court, but argues that the trial court has discretion to rely solely on the moving papers, and to deny a hearing. Villalobos agrees that that motion, rather than a petition for a writ, is the proper means for him to preserve a record for his parole hearing, but argues that he need not make an offer of proof of mitigating evidence to obtain a hearing. He further asserts, as he did in his original petition, that he is entitled to the appointment of counsel for the hearing on his motion.
1. After the motion is filed, the trial court may require an offer of proof, consistent with the purpose of the statute
The Supreme Court in Cook emphasized "the significance of Franklin's evidence preservation function in the statutory scheme. The Legislature's intent in enacting sections 3051 and 4801 was 'to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release' upon a showing of maturation and rehabilitation. [Citation.] Franklin authorized postjudgment proceedings to effectuate that intent." (Cook, supra, 7 Cal.5th at p. 449.) The Court noted that the Franklin proceeding allows the court to receive documents, evaluations, and testimony from both parties, and held that 1203.01 provides an adequate remedy at law, giving "the trial court authority to conduct an evidence preservation hearing as envisioned in Franklin." (Id., at p. 452.)
As the Attorney General does here, he argued in Cook that a 1203.01 proceeding is more limited in scope than the adversarial proceedings outlined in Franklin. The Supreme Court rejected that view:
"For inmates like Cook 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 today's decision. The motion should establish the inmate's entitlement to a youth offender parole hearing and indicate when such hearing is anticipated to take place, or if one or more hearings have already occurred. The structure for the proceeding is outlined in Franklin, supra, 63 Cal.4th at page 284, and further informed by the youth-related factors set for in section 4801, subdivision (c). The proceeding is not limited to the filing of statements referenced in section 1203.01. Rather, 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) and may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may be 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.' (Franklin, at p. 284.)" (Cook, supra, 7 Cal.5th at pp. 458-459.)
Cook does permit, but not require, the trial court to obtain an offer of proof regarding the evidence, to ensure that evidence is relevant to the required factors and is a meaningful addition to the existing record. The trial court is also permitted to determine whether testimony is necessary, or whether other submissions are adequate. (Cook, supra, 7 Cal.5th at p. 459.)
In light of the fact that a motion must be filed to commence the proceedings, we hold that any requirement of an offer of proof by the trial court must follow the initial filing, based on the trial court's analysis of that filing, and keeping in mind the evidence preservation intent of the proceeding.
2. Villalobos is entitled to the appointment of counsel on the filing of the motion
Villalobos requests the appointment of counsel on the filing of his motion; the Attorney General does not oppose that request. We agree that a party moving for relief under section 1203.01 is entitled to the appointment of counsel, prior to the determination by the trial court whether the proceeding is likely to produce relevant evidence, to preserve his or her right to an effective hearing at the parole hearing for which the evidence is being preserved. (§ 3041.7; Cal. Code Regs., tit.15, § 2256; see Cook, supra, 7 Cal.5th at p. 459.)
The Attorney General also conceded in its return to the initial petition that a Franklin hearing would "likely require the appointment of counsel."
The right to counsel "'applies at all critical stages of a criminal proceeding in which the substantial rights of a defendant are at stake' [citations]," and it is well-settled that "a sentencing hearing is one such stage." (People v. Bauer (2012) 212 Cal.App.4th 150, 155; accord, People v. Hall (1990) 218 Cal.App.3d 1102, 1105 ["It is fundamental that the right to counsel applies at all stages in a criminal proceeding where substantial rights of an accused may be affected"] [citing Mempa v. Rhay (1967) 389 U.S. 128, 134].) As discussed above, the purpose of the Franklin hearing is to allow youth offenders to make an "accurate record" of youth-related mitigating factors so that "the Board, years later, may properly discharge its obligation to 'give great weight to' [such] factors [citation] in determining whether the offender is fit" for parole. (See Franklin, supra, 63 Cal.4th at p. 284.) Given the critical role a Franklin hearing plays in determining parole eligibility at a subsequent youth offender parole hearing, we think it clear that the hearing qualifies as a "critical stage" to which the right to counsel attaches. (Cf. Cortez, supra, 6 Cal.3d at p. 87 ["an effective presentation of the merits of the petition [to strike a prior conviction] depends . . . upon his having the assistance of counsel to fashion facts and arguments into a persuasive appeal to the court . . ."].)
3. Villalobos is entitled to seek an evidence preservation hearing
The record shows Villalobos did not have a sufficient opportunity to place on the record the kinds of information sections 3051 and 4801 deem relevant at a youth offender parole hearing. At the time of Villalobos's final sentencing hearing, those statutes did not apply to him, and the Supreme Court had not decided Franklin. (See Jones, supra, 7 Cal.App.5th at p. 819. ["Prior to Franklin, . . . there was no clear indication that a juvenile's sentencing hearing would be the primary mechanism for creating the record of information required for a youth offender parole hearing 25 years in the future"].) The transcripts of Villalobos's sentencing hearings also show his counsel did not present any evidence or argument regarding the defendant's age, cognitive ability or any other youth-related factors during either of his sentencing hearings. Villalobos's probation report likewise contains no discussion of any youth-related factors, and states that the probation officer had identified no "circumstances in mitigation."
The criteria relevant to a parole determination under sections 5031 and 4086 include a wide array of "youth-related factors, such as his cognitive ability, character, and social and family background at the time of the offense." (Franklin, supra, 63 Cal.4th at p. 269.) In Franklin, the Court explained that a defendant may "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 that the "goal of any such proceeding 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." (Id. at p. 284.) Villalobos, who was not eligible for a youth offender parole hearing at the time of his trial and sentencing, could not have reasonably anticipated the importance such evidence would play at a future parole hearing.
DISPOSITION
The petition for writ of habeas corpus is denied, without prejudice to Villalobos filing a motion for relief in the Superior Court pursuant to Penal Code section 1203.01. If Villalobos files such a petition, he shall be appointed counsel to represent him in such proceedings.
ZELON, J. We concur:
PERLUSS, P. J.
FEUER, J.