Filed 2/11/21 P. v. Tucker CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091634
Plaintiff and Respondent, (Super. Ct. No. CR69953)
v.
GREGORY A. TUCKER,
Defendant and Appellant.
Defendant Gregory A. Tucker pleaded guilty to kidnapping to commit robbery in
1983 when he was 19 years old. Decades later, the Legislature created a mechanism for
early parole review for youthful offenders in Penal Code section 3051.1 The Supreme
Court determined in People v. Franklin (2016) 63 Cal.4th 261 (Franklin) that defendants
1 Further undesignated statutory references are to the Penal Code.
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who will become eligible for such a parole hearing are entitled to create a record of
evidence pertaining to youthful characteristics.
Defendant filed a motion with the trial court seeking a Franklin hearing to gather
evidence relevant to his eventual youth offender parole hearing and sought appointment
of counsel. The trial court denied the motion in a written order, without appointing
counsel, based on In re Cook (2019) 7 Cal.5th 439 (Cook), finding a Franklin hearing
would be unlikely to produce fruitful evidence.
Defendant appeals the trial court’s denial of his motion and seeks a Franklin
proceeding2 to establish youth-related mitigation factors for a future youth offender
parole hearing under section 3051. He also asserts the court erred in failing to appoint
counsel prior to making the discretionary decision to deny him a hearing. We conclude
defendant was eligible for a Franklin proceeding, which triggered his right to counsel,
and that the factors outlined by the trial court to justify denial of that proceeding were
insufficient to do so. Consequently, we reverse the order denying defendant a Franklin
proceeding and remand for reconsideration with the benefit of appointed counsel.
BACKGROUND
In 1983 defendant and two accomplices kidnapped and robbed a woman at
gunpoint by forcing her into her car and then driving off. She was able to escape when
they stopped to get gas. Defendant appeared to be the leader of the group by giving
orders to the other two. He was 19 years old at the time of the crime.
In 1984 defendant pleaded guilty to kidnapping to commit robbery. (§ 209, subd.
(b).) The trial court sentenced him to life in prison with the possibility of parole.
2 The Cook court explained that “proceeding” is a more appropriate term than “hearing”
because the judicial officer overseeing the Franklin proceedings “is not called upon to
make findings of fact or render any final determination.” (Cook, supra, 7 Cal.5th at p.
449, fn. 3.)
2
Defendant had an initial parole consideration hearing in 1988 and a subsequent parole
consideration hearing in 1993.
In 2019 defendant filed a motion in superior court, under the original caption and
case number, seeking a hearing under Franklin, supra, 63 Cal.4th 261 and Cook, supra,
7 Cal.5th 439 to “establish a record of relevant youth-related mitigating factors for later
consideration by [the] Board of Parole Hearings at his youth offender parole hearing.”
The motion stated defendant would present evidence concerning hallmarks of youth,
inherent impact of age upon his culpability, home and family environment, and the
circumstances of the offense. He also requested appointment of counsel.
The trial court denied the motion without appointing counsel. It noted “timeliness
of the request for relief is a factor to be considered” and, here, “[d]efendant’s conviction
is decades old and any investigation ordered by this Court is unlikely to produce fruitful
evidence of [d]efendant’s youthful characteristics. Additionally, a review of the CDCR
online inmate locator indicates that [d]efendant has already had multiple parole suitability
hearings since 1988, and that he has a tentative date for a suitability hearing in December
2020. It is apparent that he has had, and continues to have, opportunities to place his
youthful characteristics before the Board of Parole Hearings for consideration and that he
has had several meaningful opportunities for release.”
DISCUSSION
I
Senate Bill No. 260, Franklin, and Cook
“[T]he California Legislature passed Senate Bill No. 260 (2013-2014 Reg. Sess.),
which became effective January 1, 2014, and enacted sections 3051, 3046, subdivision
(c), and 4801, subdivision (c), to provide a parole eligibility mechanism for juvenile
offenders.” (People v. Perez (2016) 3 Cal.App.5th 612, 618.) “In October 2015, the
Legislature amended section 3051, and effective January 1, 2016, anyone who committed
his or her controlling offense before reaching 23 years of age [became] entitled to a youth
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offender parole hearing. (§ 3051, subd. (a)(1), amended by Stats. 2015, ch. 471, § 1.)”
(Id. at p. 618) Under the revised section 3051, the Board of Parole Hearings “shall
complete all youth offender parole hearings for individuals who were sentenced to
indeterminate life terms and who [became] entitled to have their parole suitability
considered at a youth offender parole hearing on January 1, 2016, by July 1, 2017.”
(§ 3051, subd. (i)(2)(A).)
In Franklin, a 16-year-old defendant shot and killed another teenager; he was
convicted of murder with a firearm enhancement and received the statutorily mandated
sentence of life in prison with the possibility of parole in 50 years. (Franklin, supra,
63 Cal.4th at p. 268.) Our Supreme Court found Senate Bill No. 260 granted Franklin a
parole hearing during his 25th year in prison, which mooted his Eighth Amendment
challenge to his sentence. (Franklin, at pp. 276-277.) The Franklin court remanded “the
matter to the trial court for a determination of whether Franklin was afforded sufficient
opportunity to make a record of information relevant to his eventual youth offender
parole hearing.” (Id. at p. 284.)
The Supreme Court in Cook determined the proper avenue to seek a Franklin
proceeding is through section 1203.01 rather than by way of a habeas corpus petition.
(Cook, supra, 7 Cal.5th at pp. 446-447.) The court explained the process in full: “[T]he
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 today’s decision. 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. . . . [C]onsistent with Franklin and the court’s inherent authority, the offender
shall have the opportunity to ‘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
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that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise
bears on the influence of youth-related factors.’ [Citation.]” (Cook, at pp. 458-459.)
The high court continued: “Although Franklin mandates an opportunity for
evidence preservation, the trial court may ‘exercise its discretion to conduct this process
efficiently . . . .’ Finally, 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. 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 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.)
Cook confirmed the manner and extent of a Franklin hearing is left to the
discretion of trial courts. (Cook, supra, 7 Cal.5th at p. 459.) Trial courts “may” also
consider whether a Franklin proceeding is unnecessary because it will not produce
“fruitful evidence.” (Ibid.) “Accordingly, we ask whether the trial court’s findings of
fact are supported by substantial evidence, whether its rulings of law are correct, and
whether its application of the law to the facts was not arbitrary or capricious. [Citation.]
Critical to the resolution of this case, we note that when a trial court’s decision rests on an
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error of law, that decision is an abuse of discretion.” (People v. Superior Court
(Humberto S.) (2008) 43 Cal.4th 737, 746.)
II
Analysis
Defendant argues he was entitled to a Franklin proceeding and the trial court erred
in finding the timeliness of his request and his earlier parole hearings operated to deny
him a hearing. Defendant also contends the trial court erred in failing to appoint counsel.
The People counter that the trial court acted within its discretion when relying on the
passage of time and past parole hearings under Cook to deny defendant a hearing, and
since a hearing was denied counsel was not needed. Defendant has the more persuasive
arguments.
Defendant’s motion required two separate analyses: (1) whether he was generally
eligible for the Franklin fact gathering process and (2) whether a Franklin proceeding
would produce fruitful evidence. Cook reaffirmed that Franklin “mandates an
opportunity for evidence preservation” for eligible prisoners. (Cook, supra, 7 Cal.5th at
p. 459, italics added.) Yet, Cook also confirmed trial courts have discretion “ ‘to conduct
this process efficiently, ensuring that the information introduced is relevant,
noncumulative, and otherwise in accord with the governing rules, statutes, and
regulations.’ ” (Ibid.) This includes determining whether a Franklin proceeding is even
“likely to produce fruitful evidence.” (Ibid.)
Defendant satisfied the first analysis by bringing his motion in superior court
under the original caption and case number, citing section 1203.01 and Cook, establishing
his entitlement to a youth offender parole hearing under section 3051 (because he was
under 23 at the time of the crime), and indicating he had not yet had such a hearing. This
renders him eligible for a Franklin proceeding. (Cook, supra, 7 Cal.5th at p. 459
[Franklin “mandat[ed]” an opportunity to preserve evidence and “it would be improper
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for the court to preclude a juvenile offender’s chance to supplement the record with
information relevant to his eventual youth offender parole hearing” (id. at p. 453)].)
It is not entirely clear from the court’s opinion whether it determined defendant
eligible under Franklin before denying him access to a Franklin proceeding. To the
extent the trial court concluded defendant actually ineligible for an opportunity to
preserve evidence under Franklin, this conclusion was not accurate.
Further, defendant’s eligibility for the Franklin process triggered his right to
appointment of counsel. The right to counsel “applies at all critical stages of a criminal
proceeding in which the substantial rights of a defendant are at stake.” (People v.
Crayton (2002) 28 Cal.4th 346, 362.) Section 3051 provides an opportunity to
significantly reduce the time for parole eligibility and a Franklin hearing is fundamental
to this opportunity; it creates a record so that the Parole Board “may properly discharge
its obligation to ‘give great weight to’ [such] factors [citation] in determining whether the
offender is ‘fit’ ” for parole. (See Franklin, supra, 63 Cal.4th at p. 284.) Given the
critical role a Franklin proceeding plays in determining parole eligibility at a subsequent
youth offender parole hearing, we conclude the proceeding qualifies as a ‘critical stage’
to which the right to counsel attaches. (People v. Lipptrapp (2021) 59 Cal.App.5th 886.)
Thus, a party who has established eligibility for a Franklin proceeding is entitled to
appointment of counsel. (Ibid. [a party moving for relief under section 1203.01 is
entitled to the appointment of counsel].)
Since defendant established his eligibility for an opportunity to preserve evidence
under Franklin, he was entitled to appointment of counsel.
As for the second analysis, the court relied on the two factors outlined in Cook to
find a Franklin proceeding would be unlikely to produce fruitful evidence: (1) prior
opportunity to benefit from section 3051; and (2) passage of time. We conclude these
findings were not supported by substantial evidence.
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Initially, there is no evidence defendant has already benefitted from section 3051.
The parole board was required to have a youth offender parole hearing for defendant in
2017 because he became eligible under section 3051 in 2016. (§ 3051, subd. (i)(2)(A).)
The record does not disclose he has had such a hearing and we cannot so assume.
Instead, the record indicates he had two parole hearings well before 2016 when there was
no incentive to create a record of relevant youth-related mitigating factors. The trial
court’s finding that defendant had “opportunities to place his youthful characteristics
before the Board of Parole Hearings” was therefore unsupported by the evidence.
This leaves passage of time, which cannot be the sole reason for finding a lack of
fruitful evidence. The Legislature included a provision for those prisoners who would
automatically become eligible on both section 3051’s effective date and the effective date
of its amendment. (§ 3051, subd. (i).) These prisoners could have been convicted 25
years or more prior to enactment. (§ 3051, subd. (b)(3).) From this it is clear the
Legislature intended that the benefits of youth offender parole hearings be available even
to those prisoners with decades-old convictions. And, under Franklin, prisoners who are
entitled to a future youth offender parole hearing are also entitled to an opportunity to
prepare a record relevant to such a hearing. (Franklin, supra, 63 Cal.4th at p. 284.)
Prisoners who were convicted long before they became eligible under section 3051 are
therefore entitled to a Franklin hearing. (See In re Loza (2018) 27 Cal.App.5th 797, 807
[remanding for a Franklin hearing where a defendant’s “sentencing took place well
before” Franklin]; People v. Lipptrapp, supra, 59 Cal.App.5th at p. 897 [ordering the
trial court to conduct a Franklin proceeding where the defendant had “been incarcerated
for over 20 years and he was eligible for the hearing several years before he filed the
motion”].)
Defendant was convicted in 1984 and was not eligible for a youthful offender
parole hearing until 2016. There is no evidence he has had such a hearing, and the
passage of time since his conviction cannot be the sole reason for disqualifying him from
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the potential benefits of a Franklin proceeding. Thus, there is insufficient evidence in the
record before us supporting the denial of a Franklin proceeding for which defendant is
otherwise eligible based on the factors outlined in Cook. We must reverse and remand
for the trial court to reconsider whether a Franklin proceeding would be beneficial. This
must also be done with the benefit of counsel appointed for defendant.
DISPOSITION
The order denying defendant’s section 1203.01 motion seeking a Franklin
proceeding is reversed and the cause is remanded with directions to reconsider the matter
consistent with the views expressed herein.
/s/
Duarte, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Krause, J.
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