Opinion
G056647
01-27-2020
In re BINH VO on Habeas Corpus.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Amanda J. Murray and Rachael A. Campbell, Deputy Attorneys General, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 97WF1880) OPINION Original proceeding in habeas corpus. Petition denied without prejudice. Stephen M. Lathrop, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Amanda J. Murray and Rachael A. Campbell, Deputy Attorneys General, for Respondent.
In 1996, petitioner Binh Vo committed a series of offenses for which he was sentenced to life in prison plus 14 years. Because he was only 20 years old at the time of his crimes, he contends he should have been provided a youth offender parole hearing (YOPH) by January 1, 2018. He also contends he is entitled to a "Franklin hearing" to create a record of mitigating factors of youthfulness that existed at the time of his offenses. (See People v. Franklin (2016) 63 Cal.4th 261 (Franklin).)
The record shows petitioner was afforded a standard parole hearing in 2015. In light of that hearing, he was not entitled to a YOPH by January 1, 2018. In addition, his request for a Franklin hearing in this habeas proceeding is foreclosed by the Supreme Court's recent opinion in In re Cook (2019) 7 Cal.5th 439 (Cook). Therefore, we deny his petition for a writ of habeas corpus. However, per the Cook decision, the denial is without prejudice to allow petitioner to pursue his Franklin claim in the trial court.
PROCEDURAL BACKGROUND
In 1998, petitioner was convicted of kidnapping to commit carjacking, kidnapping to commit robbery, and five counts of robbery. (Pen. Code, §§ 209.5, 209, subd. (b), 211/212.5, subd. (c).) The jury also found petitioner personally used a firearm during his crimes (§ 12022.5, subd. (a)), at which time he was 20 years old. The trial court sentenced petitioner to an indeterminate term of life with the possibility of parole, plus 14 years, for his actions.
All further statutory references are to the Penal Code.
Petitioner's life term began in 2009, and on April 7, 2015, he appeared before the parole board for a hearing. Petitioner told the board he immigrated to the United States with his family when he was 16 years old. He said he was very immature, impressionable and selfish when he committed his crimes, but during his time in prison, he has grown into a responsible adult and is no longer a threat to public safety. However, the parole board disagreed and denied him parole consideration for five years. Petitioner is currently scheduled for a YOPH on February 28, 2020.
This date was provided to us in the parties' joint request to waive oral argument, which we granted.
DISCUSSION
YOPH
Although his YOPH is just a month away, petitioner argues the parole board violated his statutory rights by not providing him with that hearing by January 1, 2018. His argument is based on section 3051, but, as we explain below, petitioner is exempted from the terms of that statute. Therefore, his claim is without merit.
Section 3051 was enacted following a series of landmark juvenile sentencing decisions that were handed down shortly after petitioner began serving the life-term portion of his sentence in 2009. (See Graham v. Florida (2010) 560 U.S. 48 [it is cruel and unusual to sentence juvenile nonhomicide offenders to life without parole]; Miller v. Alabama (2012) 567 U.S. 460 [mandatory sentence of life without parole for juvenile homicide offenders is unconstitutional]; People v. Caballero (2012) 55 Cal.4th 262 [barring de facto sentences of life without parole for juvenile nonhomicide offenders].) These decisions established that, except in the rarest of circumstances - not presented here - juvenile offenders facing life-long prison terms must be given a meaningful opportunity to demonstrate their fitness to reenter society at some point in the future. (Ibid.)
As explained in Franklin, the Legislature responded to this directive in 2013 by enacting "'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.) The lynchpin of that mechanism is section 3051, which authorizes a YOPH for defendants who were 25 years of age or younger at the time of their offense. (§ 3051, subd. (a).)
Section 3051 contemplates the YOPH will involve consideration of the juvenile offender's cognitive functioning, character, and social and family background at the time of his offenses. (Franklin, supra, 63 Cal.4th at p. 269.) To that end, the statute permits interested parties who knew the offender at that time to submit statements for review by the parole board. (§ 3051, subd. (f)(2).) The parole board must also consider any "psychological evaluations and risk assessment" that may be relevant to show "any subsequent growth and increased maturity of the individual." (Id. at subd. (f)(1).) And, it must "give great weight to the diminished culpability of juveniles as compared to adults" and "the hallmark features of youth[.]" (§ 4801, subd. (c).)
As originally enacted in 2013, section 3051 applied only to offenders who committed their crimes before reaching the age of 18. (Former § 3051; Stats. 2013, ch. 312.) However, effective 2016, the statute was amended to cover individuals, like appellant, who offended prior to the age of 23. (Stats. 2015, ch. 471, § 1.) The statute presently applies to anyone who was 25 years of age or younger at the time of their offenses. (§ 3051, subd. (a)(1).)
The timing of the YOPH depends on the length of the defendant's sentence. For offenders such as appellant, who were sentenced to an indeterminate term of less than 25 years to life, section 3051 states they shall be afforded a YOPH during the 20th year of their incarceration. (§ 3051, subd. (b)(2).) The statutory deadline for providing hearings to these individuals was January 1, 2018. (§ 3051.1 subd. (a).) However, section 3051 also contains an exception clause that exempts from its scope any person who was "previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (§ 3051, subd. (b)(2).)
Petitioner reached the 20th year of his incarceration in 2016. While acknowledging he received a standard parole hearing in 2015, he contends that is immaterial for purposes of section 3051 because the statute was intended to create a special parole mechanism for juvenile offenders by which their growth, maturity and the distinctive attributes of their youth can be assessed. (Sen. Bill No. 260 (2013-2014 Reg. Sess.) § 1.) In other words, petitioner argues he is excluded from the exception clause in section 3051 because his 2015 parole hearing was not specifically tailored to his status as a juvenile offender.
The problem with this argument is that the exception clause in section 3051 is broadly worded to include any juvenile offender who was "entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (§ 3051, subd. (b)(2).) Because petitioner did not come within the scope of section 3051 at the time of his initial parole hearing in 2015, that hearing was conducted pursuant to the statutory provisions governing standard parole hearings. (See §§ 3041 et seq.) And since those provisions are "other" than those set forth in section 3051, petitioner is expressly excluded from the general terms of the statute that would have otherwise entitled him to a YOPH during the 20th year of his incarceration, or no later than January 1, 2018.
When, as here, the statutory language at issue is clear and unambiguous, we presume the Legislature meant what it said, and the plain meaning of the statute controls. (Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1184; People v. Gonzalez (2008) 43 Cal.4th 1118, 1125-1126.) We are not at liberty to add to or alter the terms of the statute so as to override its plain textual meaning. (People v. Canty (2004) 32 Cal.4th 1266, 1276; People v. Miller (2018) 23 Cal.App.5th 973, 982.) Because the exception set forth in subdivision (b)(2) of section 3051 plainly excludes petitioner from the scope of the statute, he was not entitled to a YOPH by January 1, 2018. Instead, he will have to wait until February 28, 2020 before he is provided such a hearing.
Franklin Hearing
Petitioner also contends he is entitled to a "Franklin hearing" to make a record of youth-related factors that existed at the time of his offenses that might be relevant at his YOPH. However, because petitioner's case is already final for purposes of direct appeal, he must pursue that claim in the trial court in the first instance by filing an evidence preservation motion under section 1203.01. (Cook, supra, 7 Cal.5th at pp. 446-447.) Accordingly, we deny petitioner's petition for a writ of habeas corpus without prejudice to his filing such a motion. (Id. at p. 460.)
DISPOSTION
The petition for a writ of habeas corpus is denied without prejudice to allow petitioner to file a motion for a Franklin proceeding in the trial court pursuant to section 1203.01.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. GOETHALS, J.