Opinion
B305784
05-17-2021
THE PEOPLE, Plaintiff and Respondent, v. ISIAH YOSHAWN SMITH, Defendant and Appellant.
Richard B. Lennon and Melissa Camacho-Cheung, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Charles S. Lee, Deputy Attorneys General, for Plaintiff and 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. A901428) APPEAL from an order of the Superior Court of Los Angeles County, Laura C. Ellison, Judge. Reversed and remanded for further proceedings. Richard B. Lennon and Melissa Camacho-Cheung, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Isiah Yoshawn Smith appeals the trial court's denial of his motion for a Franklin proceeding (People v. Franklin (2016) 63 Cal.4th 261 (Franklin) pursuant to Penal Code section 3051. We agree with the parties that the trial court erred by denying the motion, and reverse and remand for further proceedings.
All further undesignated statutory references are to the Penal Code.
BACKGROUND
In March 1982, Smith shot and killed Daniel J. Hernandez during a robbery. Smith was 16 years old at the time of the murder. A jury convicted him of first degree murder (§ 187, subd. (a)); robbery (§ 211); and conspiracy to commit robbery (§ 182). It also found true an arming enhancement. The trial court sentenced Smith to 25 years to life in prison, plus two years.
We derive this information from the probation report.
Decades later, on February 7, 2020, Smith, acting in propria persona, filed in the trial court a document entitled "petition to recall and resentence defendant to put his youth factors on the record for purposes of his parole suitability hearing." Therein, Smith cited Franklin and requested the appointment of counsel. His supporting declaration stated that he was 16 years old at the time of the crime. He referenced sections 3051 and 4801, explained that Senate Bill No. 260 was enacted in response to Graham v. Florida (2010) 560 U.S. 48, Miller v. Alabama (2012) 567 U.S. 460, and People v. Caballero (2012) 55 Cal.4th 262, and averred that the Board of Parole Hearings (Board) is required 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 . . . ." Smith asserted that, because his sentencing predated passage of Senate Bill No. 260, he had not been afforded the opportunity to place factors related to his youth on the record. Attached to the motion was a copy of a 1983 probation report, which described the circumstances of the crime and briefly sketched Smith's educational and family background, his criminal history and gang involvement, and his substance abuse.
The trial court denied the motion by means of a handwritten notation stating, "Denied 3-5-20. [Defendant] provides zero basis for his motion."
Smith timely appealed.
DISCUSSION
Smith argues that the trial court erred by denying his motion, and the matter must be remanded for a Franklin proceeding. The People agree that a limited remand in accordance with Franklin is appropriate. We agree with the parties that the trial court erred by denying the request, and remand for further proceedings as explained post.
1. Applicable legal principles
To align California law with authorities establishing constitutional limits on juvenile sentencing (see Graham v. Florida, supra, 560 U.S. 48; Miller v. Alabama, supra, 567 U.S. 460; People v. Caballero, supra, 55 Cal.4th 262), effective January 1, 2014, the Legislature enacted Senate Bill No. 260 (2013-2014 Reg. Sess.), which added sections 3051 and 4801, subdivision (c), to the Penal Code. (People v. Sepulveda (2020) 47 Cal.App.5th 291, 298.) "These provisions require the Board . . . , with certain limited exceptions, to conduct a youth offender parole hearing no later than a juvenile offender's 25th year of incarceration . . . and, when considering parole eligibility for these youth offenders, 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' [citation]." (Ibid; § 4801, subd. (c); see In re Jones (2019) 42 Cal.App.5th 477, 484.) "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." (In re Cook (2019) 7 Cal.5th 439, 449 (Cook).)
Franklin, supra, 63 Cal.4th 261, interpreted these provisions to require that a youth offender be provided a "sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Id. at p. 284; Cook, supra, 7 Cal.5th at pp. 449-450.) To that end, Franklin authorized postjudgment evidence preservation proceedings, commonly known as "Franklin proceedings." "A Franklin proceeding gives '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 [citation] in determining whether the offender is "fit to rejoin society" . . . .' [Citation.]" (Cook, at p. 449.) The " 'court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [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.' " (Id. at pp. 449-450.) In conducting a Franklin proceeding, the trial court does not act as a factfinder; instead, its function is simply to provide judicial oversight of the collection of evidence. (Id. at p. 457; People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896.)
Cook, supra, 7 Cal.5th 439, held that a sentenced prisoner whose conviction is final can seek Franklin's "remedy of evidence preservation." (Id. at pp. 446-447.) 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 [Cook]. 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." (Id. at p. 458.)
2. Application here
Smith's motion generally satisfied the requisites of Cook. It stated that he was 16 years old at the time of the crimes, and the attached probation report corroborated this assertion. Smith filed the motion under the original caption. He did not list the original case number on the caption page, but it was included on the probation report. He failed to cite Cook or section 1203.01. However, his citation of Franklin and the appropriate code sections, along with his discussion of the relevant law in his declaration, made it clear he was seeking a Franklin proceeding. (See People v. Lipptrapp, supra, 59 Cal.App.5th at pp. 893-894.) He did not list the specific evidence he hoped to present, but did reference categories of information that would be relevant, such as evidence of growth and maturity, or that relevant to the diminished culpability of juveniles and the hallmark features of youth. Smith was sentenced long before section 3051 was enacted and Franklin issued. Therefore, at sentencing he would have had little opportunity or reason to place such information on the record. (See People v. Rodriguez (2018) 4 Cal.5th 1123, 1131; People v. Tran (2018) 20 Cal.App.5th 561, 570; People v. Jones (2017) 7 Cal.App.5th 787, 819.) The probation report included only minimal information about his circumstances at the time of the offense. (See People v. Rodriguez, at p. 1131 [defendant entitled to Franklin proceeding despite existence of information in probation reports, juvenile fitness hearing reports, and information provided at sentencing hearings].) The motion failed to state whether a parole hearing has already been conducted or is scheduled. But such an omission is generally not, by itself, a valid reason for denial. (People v. Lipptrapp, at pp. 895-897.)
The caption of Smith's motion included the language "petition to recall and resentence defendant." Smith presented no basis for resentencing and he has not argued, either below or on appeal, that he is entitled to be resentenced. The caption's erroneous nomenclature is of no moment. In People v. Lipptrapp, supra, 59 Cal.App.5th 886, for example, the prisoner incorrectly requested resentencing, as well as a Franklin proceeding. Lipptrapp found this circumstance inconsequential, pointing out that a "motion requesting three different remedies is not fatally defective simply because two of the requested forms of relief are unavailable." (Id. at p. 895.)
It is not clear that Smith is entitled to a youth offender parole hearing as such. Smith has been incarcerated since at least December 1982, and would have served 25 years in approximately 2008. It therefore seems likely he has already had at least one parole hearing. (See People v. Chiu (2014) 59 Cal.4th 155, 163 [a person convicted of first degree murder must serve 25 years before becoming eligible for parole consideration]; §§ 190, subds. (a), (e), 3046, subd. (a)(2).) Under section 3051, "if a prisoner's first parole hearing is not a youth offender parole hearing, then the prisoner does not receive a youth offender parole hearing." (In re Brownlee (2020) 50 Cal.App.5th 720, 725-726 [youth offender parole hearing "is unnecessary when the prisoner is entitled to earlier parole consideration under other law."].) And given that almost four decades have elapsed since the murder, and Franklin's rationale was based on the recognition that assembling evidence of youth-related factors is "typically a task more easily done at or near the time of the juvenile's offense" (Franklin, supra, 63 Cal.4th at pp. 283-284), it could be argued that a Franklin proceeding at this point in time would be of little use.
Nevertheless, the Board must "apply 'the diminished culpability of juveniles as compared to adults' criteria" at any of Smith's parole hearings, whether denominated as a "youth offender" hearing or otherwise. (In re Brownlee, supra, 50 Cal.App.5th at p. 726; § 4801, subd. (c) [when prisoner was under 25 when he committed the controlling offense, the Board "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."].)
Moreover, Cook contemplates that a Franklin hearing is available even to prisoners who have been incarcerated for lengthy periods. The court explained: "Franklin emphasized that the purpose of the proceeding was to allow the offender to assemble evidence '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.' [Citation.] Some offenders who file these postjudgment motions in the trial court may have spent a decade or more in prison. Some may have even come before the Board for a youth offender parole hearing." (Cook, supra, 7 Cal.5th at p. 459, italics added; see also People v. Lipptrapp, supra, 59 Cal.App.5th at pp. 889-890 [defendant who was convicted in 1999 was entitled to a Franklin proceeding].) Under such circumstances, "[t]he court may consider whether a Franklin proceeding is likely to produce fruitful evidence considering such factors as the passage of time and whether the offender has already benefitted from the factfinding procedures set forth in section 3051, subdivision (f)(1) and (2) with the assistance of appointed counsel (§ 3041.7; Cal. Code Regs., tit. 15, § 2256, subd. (c))." (Cook, supra, 7 Cal.5th at p. 459.)
Thus, under Cook, a prisoner may be entitled to a Franklin proceeding even if he or she has already been considered for parole. Here, the trial court appears to have denied the motion without regard to the considerations delineated in Cook. We therefore reverse the order and remand for the appointment of counsel and a Franklin proceeding. On remand, the court may "require an offer of proof regarding the evidence" Smith seeks to present, "so that it can determine whether such evidence is relevant to youth-related factors and meaningfully adds to the already available record." (Cook, supra, 7 Cal.5th at p. 459.) If, after considering any offer of proof and/or the materials the prisoner seeks to present, the trial court determines that such a proceeding would be fruitless, it need not proceed further. The court should exercise its discretion to ensure that any information introduced is noncumulative and "otherwise in accord with the governing rules, statutes, and regulations.' [Citation.]" (Ibid.)
DISPOSITION
The order denying Smith's motion is reversed. The matter is remanded for further proceedings in accordance with the opinions expressed herein.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
EGERTON, J.