Filed 2/5/21 P. v. Whitlock CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, A159526
Plaintiff and Respondent,
(Mendocino County
v. Super. Ct. No. 10076)
CAMERON NEIL WHITLOCK,
Defendant and Appellant.
Cameron Neil Whitlock contends the trial court erred in declining to
accept letters and statements from his family and friends for purposes of a
post-conviction proceeding to preserve evidence relevant to a youth offender
parole hearing. (Pen. Code, § 3051; see People v. Franklin (2016) 63 Cal.4th
261, 284 (Franklin); In re Cook (2019) 7 Cal.5th 439, 451-453 (Cook).)1 The
People agree that the trial court erred with respect to some of the evidence
but also argue that two documents should be excluded. We conclude the
court should have admitted all of the documents and reverse.
All references in this opinion to Franklin/Cook proceedings are to
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proceedings pursuant to People v. Franklin, supra, 63 Cal.4th 261, and In re
Cook, supra, 7 Cal.5th 439. Undesignated statutory references are to the
Penal Code.
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BACKGROUND
A.
Inmates who were 25 years of age or younger at the time they
committed an offense may be eligible for parole in their 15th, 20th, or 25th
year of imprisonment, depending on the sentence and other factors. (§ 3051,
subd. (a)(1), (b)(1)-(3).) In considering a youth offender’s suitability for parole
under section 3051, the Board of Parole Hearings (“Board”) “shall 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).)
In Franklin, supra, 63 Cal.4th 261, and Cook, supra, 7 Cal.5th 439, our
Supreme Court explained that youthful offenders may request a post-
conviction proceeding in the trial court to create a record that the Board can
later use at the parole hearing. The purpose of a Franklin/Cook proceeding
in the trial court is to preserve evidence of the offender’s youthful character
and relevant circumstances at the time of the offense, while it is still
available and fresh, given that the Board’s parole hearing may not take place
for decades. (Franklin, supra, 63 Cal.4th at pp. 283-284.) Although the court
has discretion to conduct the proceeding efficiently by excluding evidence that
is irrelevant or cumulative (Cook, supra, 7 Cal.5th at p. 459), the trial court’s
primary role is to assemble the record for the Board’s later use, not to make
factual findings or weigh the evidence’s credibility. (Id. at p. 457.) The trial
court must thereafter transmit the record to the Board. (Id. at pp. 453, 459.)
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B.
In 1990, Whitlock was convicted of vehicle theft (Veh. Code, § 10851,
subd. (a)), robbery (Pen. Code, § 211), and second-degree murder (id., §§ 187,
190), having committed the offenses when he was 25 years old.
After Whitlock filed a pro se motion in the trial court requesting a
Franklin/Cook proceeding in 2019, court-appointed counsel submitted a
number of exhibits relevant to a youth offender parole hearing. The trial
court admitted one exhibit but excluded others. Whitlock appeals from the
court’s decision to exclude four letters and statements by family members
and friends contained in Exhibit 7 to his motion.
DISCUSSION
A.
In a footnote, the People argue that Whitlock’s appeal should be
dismissed as moot because he was afforded a youth offender parole hearing
during the pendency of this appeal. We disagree. A trial court may conduct a
Franklin/Cook proceeding even if a parole hearing has already
occurred. (Cook, supra, 7 Cal.5th at p. 458; see also People v. Lipptrapp (Jan.
11, 2021, No. G058891) __ Cal.App.5th ____, ____ [2021 Cal.App.LEXIS 25,
*17] (Lipptrapp) [remanding with directions to trial court to conduct a
Franklin/Cook proceeding, notwithstanding that appellant’s “parole hearing
presumably took place while this appeal was pending”].) Whitlock has
informed the court that the documents at issue in this appeal were not part of
the record before the Board. He is attempting to assemble a record that the
Board can use in his next parole hearing. Accordingly, his appeal is not moot.
B.
Whitlock asserts that the trial court erred in excluding four documents
providing information from family and friends. We agree.
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1.
The documents at issue relate to the circumstances of Whitlock’s
upbringing and teenage years, including his and his family’s struggles with
homelessness and substance abuse prior to his offenses. The documents
include two letters from Whitlock’s sister and friends, as well as two reports
signed by an investigator employed with the County of Mendocino Office of
the Public Defender summarizing telephone conversations with Whitlock’s
father and a friend.
The trial court explained that it excluded the four documents because
they “are more relevant to the youth offender parole board than they are . . .
for Franklin purposes at this juncture” and because cross-examination would
be necessary if Whitlock wished to submit statements from his family and
friends.
2.
The People concede that the trial court should have admitted the two
letters from Whitlock’s sister and friends. We agree.
The trial court incorrectly excluded the statements on the ground that
the witnesses could not be cross-examined. A Franklin/Cook proceeding does
not have the rigorous pleading and proof requirements of a habeas hearing,
nor does the trial court act as a factfinder. “Rather, it simply entails the
receipt of evidence for the benefit of the Board.” (Cook, supra, 7 Cal.5th at p.
457.) Section 3051, subdivision (f)(2) specifically provides that family
members, friends, and others “ ‘may submit statements for review by the
board.’ ” (Franklin, supra, 63 Cal.4th at p. 283; see also Cal. Code Regs., tit.
15, § 2445, subd. (c).) By contrast, if the defendant presents live testimony,
the witness is subject to cross examination (Franklin, supra, 63 Cal.4th at p.
284), but the defendant is not required to present any particular form of
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evidence. (Cook, supra, 7 Cal.5th at p. 459.) The People do not dispute that
the two letters contained information relevant to a youth offender parole
hearing.
The court’s other reason for excluding the letters—that they are more
relevant to the youth offender parole hearing—is backwards. Because the
letters are relevant to the Board’s hearing, they should be admitted in the
Franklin/Cook proceeding, not excluded.
3.
We disagree with the People that the investigator’s summaries of
telephone calls with Whitlock’s father and friend should be excluded.
It may be true, as the People assert, that the investigator summaries
raise hearsay and authentication concerns. But those are considerations for
the Board, not the trial court. Again, the main purpose of a Franklin/Cook
proceeding is to preserve evidence for future use by the Board. (See Cook,
supra, 7 Cal.5th at pp. 455, 457.) The Board’s hearings are informal. (In re
Rosenkrantz (2002) 29 Cal.4th 616, 654.) Like many administrative agencies,
the Board is not limited by strict evidentiary rules. (Pope v. Superior Court
(1970) 9 Cal.App.3d 636, 641.) It will consider “[a]ll relevant, reliable
information” related to the prisoner’s suitability for parole. (Cal. Code Regs.,
tit. 15, § 2281, subd. (b); see also id., § 2249 [“A prisoner shall have the right
to present relevant documents to the hearing panel.”], id. § 2445, subd. (d)
[Board must find youth offender suitable for parole unless youth factors are
“outweighed by relevant and reliable evidence” of current, unreasonable
public safety risk]; id. § 2445, subd. (a) [youth offender parole hearings
subject to the requirements described in Title 15, Division 2, Chapter 3 of the
California Code of Regulations].) The Board may discount or refuse to
consider the investigator’s summaries if it deems them unreliable—perhaps
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because of hearsay or authentication concerns—but that is for the Board to
determine. It makes no sense for the trial court to exclude evidence that the
Board may admit.
Finally, the People suggest that the summaries are improper because
the investigator may have omitted information unfavorable to Whitlock.
That is not a reason to exclude the summaries from the record. Whitlock is
not obligated to submit unfavorable evidence. The prosecution is, of course,
welcome to do so (see Franklin, supra, 63 Cal.4th at p. 284), and the Board
will decide how much weight to give the evidence.
DISPOSITION
The judgment is reversed in part and the case is remanded with
instructions for the trial court to accept the documents contained in Exhibit 7
to Whitlock’s Franklin motion and transmit them to the Board.
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_______________________
BURNS, J.
We concur:
____________________________
NEEDHAM, ACTING P.J.
____________________________
SELIGMAN, J.*
A159526
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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