Filed 1/20/21 P. v. Magana CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B300733
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA416716)
v.
JOSE JAVIER MAGANA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Douglas Sortino, Judge. Reversed and
remanded with directions.
Steven A. Brody, 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, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Nima Razfar, Deputy Attorney General,
for Plaintiff and Respondent.
2
Defendant Jose Magana (defendant) appeals from an order
denying his motion for a youth offender evidence preservation
proceeding under People v. Franklin (2016) 63 Cal.4th 261
(Franklin), People v. Cook (2019) 7 Cal.5th 439 (Cook), and Penal
Code1 section 1203.01. The Attorney General concedes the trial
court erred in concluding it did not have authority to entertain
defendant’s motion, but defendant and the Attorney General
disagree about the appropriate remedy. We consider whether the
case should be remanded with instructions to grant the motion
(defendant’s position) or remanded to allow the trial court to
consider the motion and exercise its informed discretion in
deciding whether to grant it (the Attorney General’s position).
I. BACKGROUND
Defendant was convicted of two counts of attempted
premeditated murder, two counts of assault with a deadly
weapon, and one count of aggravated mayhem. The jury found
true special allegations that defendant inflicted great bodily
injury, personally used a deadly weapon, and committed the
crimes for the benefit of a criminal street gang. Defendant was
18 years old at the time of the offense conduct. The trial court
sentenced defendant to a total of 38 years to life in prison on the
attempted murder counts.2
1
Undesignated statutory references that follow are to the
Penal Code.
2
The trial court stayed the prison terms imposed on the
remaining counts pursuant to section 654.
3
On direct appeal, defendant argued, among other things,
that the case should be remanded for a Franklin proceeding,3 i.e.,
to give him an opportunity to make a record of information
relevant to an eventual youth offender parole hearing. (People v.
Magana (Oct. 18, 2018, B281616) [nonpub. opn.]; see also
Franklin, supra, 63 Cal.4th at 284.) We affirmed and held, as to
the Franklin issue, that defendant had already had a sufficient
opportunity to make such a record (Franklin was decided months
before his sentencing).
After our decision on direct appeal and subsequent habeas
petitions, defendant moved for a Franklin proceeding under
section 1203.01. As we shall discuss, Cook holds section 1203.01
is the procedural vehicle by which an offender may request a
Franklin proceeding after his or her conviction is final. (Cook,
supra, 7 Cal.5th at 451-452.) The trial court denied the motion,
finding defendant presented “no facts in support of a Franklin
hearing in addition to those already present[ed] to and rejected
by the Court of Appeal” and believing it had “no authority to
review the decision made by the Court of Appeal.”
II. DISCUSSION
Viewed in light of the intervening Cook decision and
another Court of Appeal case, our conclusion that defendant was
not entitled to a limited remand in his previous appeal does not
preclude the trial court from considering his section 1203.01
3
As our Supreme Court explained in Cook, supra, “Franklin
processes are more properly called ‘proceedings’ rather than
‘hearings.’ A hearing generally involves definitive issues of law
or fact to be determined with a decision rendered based on that
determination. [Citation.]” (Cook, supra, 7 Cal.5th at 449, fn. 3.)
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motion. We will accordingly reverse the order denying
defendant’s motion and remand for the trial court to exercise its
discretion as described in Franklin and Cook.
Section 3051, subdivision (b)(3) provides that an individual
who, like defendant, is 25 years or younger and sentenced to 25
years to life in prison is entitled to a youth offender parole
hearing during his or her twenty-fifth year of incarceration.
(§ 3051, subd. (b)(3).) At a youth offender parole hearing, the
Board of Parole Hearings may consider statements from the
defendant’s “[f]amily members, friends, school personnel, faith
leaders, and representatives from community-based
organizations with knowledge about the individual before the
crime or the individual’s growth and maturity since the time of
the crime.” (§ 3051, subd. (f)(2).) The Board of Parole Hearings 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 of the prisoner in
accordance with relevant case law.” (§ 4801, subd. (c).)
In Franklin, our Supreme Court held a youth offender must
be afforded “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
284.) “Assembling such statements ‘about the individual before
the crime’ 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
283-284.)
In Cook, our Supreme Court held the reasoning supporting
its ruling in Franklin, which involved a defendant’s direct appeal,
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also extends to offenders with final convictions. (Cook, supra, 7
Cal.5th at 451.) The Supreme Court held the procedural vehicle
by which offenders with already final convictions may seek to
make a record of information relevant under sections 3051 and
4801 is a motion under section 1203.01. (Ibid.) That statute
states a trial court may (and in some instances, must) create a
post-judgment record for the benefit of the Department of
Corrections and Rehabilitation. The Supreme Court reasoned
that although section 1203.01 “specifically mentions statements
prepared by the court, prosecutor, defense counsel, and
investigating law enforcement agency[,] . . . the [trial] court has
inherent authority under Code of Civil Procedure section 187 to
authorize additional evidence preservation consistent
with . . . Franklin.” (Cook, supra, 7 Cal.5th at 449.)
In this case, defendant and the Attorney General agree the
trial court’s denial of defendant’s section 1203.01 motion should
be reversed. Our prior opinion resolving defendant’s direct
appeal pre-dated Cook, and in Cook, the Supreme Court did not
decide whether a previous opportunity to submit youth-related
mitigating evidence forecloses making a section 1203.01 motion—
the Cook court was silent on that score. But at least one Court of
Appeal panel has held, post-Cook, that a previous opportunity to
submit youth-related mitigating evidence does not stand as a bar
to making a section 1203.01 motion. (People v. Medrano (2019)
40 Cal.App.5th 961, 963, 968 [no basis for a remand on direct
appeal when the defendant was sentenced over a year after
Franklin and had an opportunity to make a record of mitigating
youth-related evidence, but judgment affirmed without prejudice
to the defendant’s prerogative to file a motion for a Franklin
proceeding under section 1203.01 and Cook].) We agree with the
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parties that our prior opinion on direct appeal does not foreclose
making a section 1203.01 motion for a Franklin proceeding.
Defendant and the Attorney General differ, however, on the
directions that should govern our remand to the trial court.
Defendant contends any denial of his section 1203.01 motion,
which does not specify the information he seeks to present,4
would be an abuse of discretion. The trial court, however, has
considerable discretion as to the scope of the Franklin proceeding
to which defendant is entitled. In Cook, the Supreme Court
emphasized the trial court’s discretion to ensure the information
presented is “‘relevant, noncumulative, and otherwise in accord
with the governing rules, statutes, and regulations.’ [Citation.]”
(Cook, supra, 7 Cal.5th at 459.) The trial court “may, for
example, require an offer of proof regarding the evidence the
offender 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. It may also determine
whether testimony is ‘appropriate’ [citation], or if other types of
evidentiary submissions will suffice . . . . The 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
4
Defendant contends the habeas petition he previously filed
in this court “provides extensive details of the kind of evidence
that was available to trial counsel, and which was not presented
to the court at sentencing.” It is not clear from his section
1203.01 motion, however, whether this is the only information he
seeks to present and whether, if so, he seeks to present all of this
information in a Franklin proceeding (and whether he wishes to
present it in the form of live testimony or letters).
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procedures” available in a youth offender parole hearing. (Ibid.)
Because the trial court has not yet considered these issues, the
trial court on remand shall exercise its informed discretion and
decide whether defendant should have an opportunity to make a
record beyond the record he has already made when seeking
habeas relief.
DISPOSITION
The order denying defendant’s motion for a Franklin
proceeding under section 1203.01 and Cook is reversed. The
matter is remanded to the trial court for further proceedings
consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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