Filed 9/30/20 P. v. Thompson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B300849
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA037159)
v.
RAYMOND ANDREW THOMPSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Denise McLaughlin-Bennett, Judge. Affirmed.
________________________________
Adrian K. Panton, 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, Scott A. Taryle and Colleen M. Tiedemann,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________________
Raymond Andrew Thompson appeals from an order denying
his motion under Penal Code1 section 1203.01 for a hearing
to be held pursuant to People v. Franklin (2016) 63 Cal.4th 261
(Franklin). For the reasons given below, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
On March 19, 2007, Thompson pleaded no contest to
one count of attempted murder. (§§ 187, 664.) He also admitted
that he personally used a firearm in the commission of the crime
(§ 12022.5, subd. (a)), and that the crime was committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The
court accepted the plea and sentenced Thompson to 18 years in
prison.
On July 22, 2019, Thompson filed a document in the superior
court titled, “Penal Code 1203.01 Motion Pursuant to In re Cook
(June 3, 2019, S240153 Cal.5th).” Thompson requested a hearing
under Franklin for the purpose of creating a record of youth-related
mitigating factors to be available for use at a youth offender parole
hearing.
On August 5, 2019, the court denied the motion. Among other
reasons, the court stated that Thompson failed to indicate why he is
entitled to relief under In re Cook (2019) 7 Cal.5th 439 (Cook).
Thompson timely appealed.
1 Unless otherwise specified, subsequent statutory references
are to the Penal Code.
2
DISCUSSION
In 2013, the Legislature enacted section 3051. (Stats. 2013,
ch. 312, § 4.) As amended in 2017, section 3051, subdivision (b)(1)
provides: “A person who was convicted of a controlling offense that
was committed when the person was 25 years of age or younger and
for which the sentence is a determinate sentence shall be eligible
for release on parole at a youth offender parole hearing during the
person’s 15th year of incarceration.” (§ 3051, subd. (b)(1).) At the
youth offender parole hearing, the parole 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.” (§ 4801, subd. (c).)
In Franklin, the defendant was eligible for a youth offender
parole hearing under section 3051 but, because he had been
sentenced prior to the enactment of that statute, he may not
have had a sufficient opportunity to make an accurate record of
his “characteristics and circumstances at the time of the offense”
to enable the parole board to “properly discharge its obligation
to ‘give great weight to’ youth-related factors.” (Franklin, supra,
63 Cal.4th at p. 284.) The Supreme Court remanded the case to the
trial court to determine whether the defendant had an opportunity
to make such a record. (Ibid.) If the defendant did not have that
opportunity, he was entitled to a hearing where he could “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 p. 284; see also People v.
Rodriguez (2018) 4 Cal.5th 1123, 1131–1132.)
3
In Cook, the Supreme Court held that an inmate entitled
to a youth offender parole hearing under section 3051 “may seek
the remedy of a Franklin proceeding even though the offender’s
sentence is otherwise final.” (Cook, supra, 7 Cal.5th at p. 451.)
The Cook court then considered the question: “How does a juvenile
offender with a final conviction gain access to the trial court for
an evidence preservation proceeding?” (Cook, supra, 7 Cal.5th at
p. 451.) The answer, the court explained, is by filing “a motion in
[the] superior court under the original caption and case number,
citing the authority of section 1203.01 and [the Cook] decision.”2
(Id. at p. 458.) Such a motion, the court stated, “does not impose
2 Section 1203.01, subdivision (a) provides: “Immediately
after judgment has been pronounced, the judge and the district
attorney, respectively, may cause to be filed with the clerk of
the court a brief statement of their views respecting the person
convicted or sentenced and the crime committed, together with any
reports the probation officer may have filed relative to the prisoner.
The judge and district attorney shall cause those statements to be
filed if no probation officer’s report has been filed. The attorney for
the defendant and the law enforcement agency that investigated
the case may likewise file with the clerk of the court statements of
their views respecting the defendant and the crime of which he or
she was convicted. Immediately after the filing of those statements
and reports, the clerk of the court shall mail a copy thereof, certified
by that clerk, with postage prepaid, addressed to the Department of
Corrections and Rehabilitation at the prison or other institution to
which the person convicted is delivered. The clerk shall also mail
a copy of any statement submitted by the court, district attorney,
or law enforcement agency, pursuant to this section, with postage
prepaid, addressed to the attorney for the defendant, if any, and
to the defendant, in care of the Department of Corrections and
Rehabilitation, and a copy of any statement submitted by the
attorney for the defendant, with postage prepaid, shall be mailed
to the district attorney.”
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the rigorous pleading and proof requirements for habeas corpus.”
(Id. at p. 457.) The motion must, however, “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.)
Here, Thompson’s motion contained the caption and case
number of his original criminal case and he cites, in the title of
his motion and in the first sentence of its text, section 1203.01
and the Supreme Court’s Cook decision. The motion thus satisfies
Cook’s procedural requirements.
Substantively, Thompson’s motion discusses at some length
the development of the law concerning youth offenders, the nature
and purpose of youth offender parole hearings, section 3051, and
the Franklin decision. He states that a youth offender parole
hearing has been scheduled for him and that, under Franklin
and related authority, evidence of his youth-related diminished
culpability would be relevant. He further states that, at the time of
his sentencing in 2007, such evidence was not relevant and he has
not been given a sufficient opportunity to put such information on
the record. Such evidence, he concludes, “must be preserved for the
record now.”
Thompson’s motion, however, does not meet even the low
evidentiary threshold that Cook set for such motions. In particular,
Thompson did not state his age at the time he committed the
“controlling offense” and thus failed to establish his entitlement
to a youth offender parole hearing. (See Cook, supra, 7 Cal.5th at
p. 458; § 3051, subd. (b)(1) [one who has been given a determinate
sentence is eligible for a youth offender parole hearing if he or
she was 25 years of age or younger when the controlling offense
was committed].) Nor does Thompson state when a youth offender
parole hearing in his case is anticipated or if any hearings have
occurred. (See Cook, supra, 7 Cal.5th at p. 458.)
5
On appeal, Thompson refers us to points in the record of
his 2007 conviction indicating that he was 18 years old when he
committed the pertinent offense. He did not, however, provide
these references to the record to the trial court; nor did he provide
other evidence, such as his declaration—or even an unverified
statement in his motion—to indicate his age. The court was not
required to scour the record to ascertain this information,
particularly when Thompson could have easily provided it with
his motion.
Nor did he provide the date of his parole hearing or when he
anticipates one is likely to take place. Thompson’s referral in his
appellate briefing to the website for the California Department of
Corrections and Rehabilitation, which provides certain information
about inmates in California prisons does not change the result.
According to Thompson, this website will show that he has a youth
offender parole hearing set for July 2021. Neither this website link
nor the information Thompson contends it will show was provided
to the trial court or included in our record on appeal. Again, it is
his duty to provide that information to the trial court. It is not the
duty of the trial court to search outside the record to possibly find
omitted information.
Because Thompson has failed to establish error, the court’s
order is affirmed.
6
DISPOSITION
The August 5, 2019 order denying Thompson’s motion under
section 1203.01 is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
SINANIAN, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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