Filed 3/10/21 P. v. Gomez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048066
(Monterey County
Plaintiff and Respondent, Super. Ct. No. CR13746B)
v.
HOMERO GOMEZ,
Defendant and Appellant.
I. INTRODUCTION
In 1988, defendant was found guilty of second degree murder with the personal
use of a firearm (Pen. Code, §§ 187, 12022.5)1 and escape (§ 4532, subd. (b)) and in
violation of the terms of his probation. The trial court sentenced defendant to 17 years
to life consecutive to three years eight months. Defendant was 20 years old when he
committed the murder.
In 2013, section 3051 was enacted to provide “a youth offender parole hearing”
for eligible youth offenders. (See Stats. 2013, ch. 312, § 4.) The California Supreme
Court subsequently held in People v. Franklin (2016) 63 Cal.4th 261, 284 (Franklin) that
an eligible youth offender shall have an opportunity to “make a record of information
relevant to his [or her] eventual youth offender parole hearing.”
1
All further statutory references are to the Penal Code unless otherwise indicated.
In 2019, defendant filed a petition for writ of habeas corpus in this court
requesting a Franklin hearing. This court denied the petition “without prejudice to
[defendant] filing a motion for a Franklin hearing in the court in which he was
convicted.”
Defendant filed a motion for a Franklin hearing in the trial court. After appointing
defendant counsel and receiving written opposition from the prosecution, the court denied
the motion, finding that defendant was not entitled to a Franklin hearing.
The parties agree that the trial court erred when it denied defendant’s motion for a
Franklin hearing, and we concur. Because defendant is entitled to youth offender parole
hearings under section 3051, he is eligible for Franklin’s evidence preservation process.
(See In re Cook (2019) 7 Cal.5th 439 (Cook).)
Accordingly, we will reverse the order and remand the matter for Franklin
proceedings consistent with Cook.
II. PROCEDURAL BACKGROUND2
In 1988, defendant was charged by information with murder (§ 187) committed on
or about May 21, 1988. The information also alleged that defendant personally used a
firearm in the commission of the offense (§ 12022.5). Defendant was born in April 1968.
After a court trial, the court found defendant guilty of second degree murder with
the personal use of a firearm. The court also found defendant guilty of escape (§ 4532,
subd. (b)), as charged in a separate case, and in violation of probation. The court
sentenced defendant to 17 years to life for murder and the personal use of a firearm plus
a consecutive three years eight months for escape and the probation violation.
Defendant received his first parole suitability hearing in 2006, where parole was
denied for four years. In 2011, defendant stipulated to parole unsuitability for three
years; in 2014, defendant voluntarily waived his right to a parole hearing for two years.
2
We do not provide a factual summary of defendant’s controlling offense because
the facts are not part of the record on appeal and are not relevant to the issue presented.
2
Defendant received his next parole suitability hearing in 2016, where he was denied
parole for three years. In 2017, defendant was denied parole for five years.
In 2019, defendant filed a petition for writ of habeas corpus in this court
requesting a Franklin hearing. This court denied the petition “without prejudice to
[defendant] filing a motion for a Franklin hearing in the court in which he was
convicted,” and directed defendant to bring the motion under the authority of Cook and
section 1203.01.
Defendant subsequently filed a motion for a Franklin hearing in the trial court.
Citing Franklin, Cook, and section 1203.01, defendant requested the hearing “to
develop[] the record and introduce evidence on youth related circumstances.”
The prosecution filed written opposition contending that the motion should be
denied because defendant had already received several parole hearings and was therefore
not entitled to a youth offender parole hearing. Thus, the prosecution argued, there was
“no need for record preservation for a hearing that will never take place.”
The trial court denied the motion, finding that defendant was not entitled to a
Franklin hearing “based on . . . the clear reading of the statute.”3
III. DISCUSSION
Section 3051, subdivision (a)(1) provides that “any prisoner who was 25 years of
age or younger . . . at the time of the controlling offense” shall receive “[a] youth
offender parole hearing . . . for the purpose of reviewing the [prisoner’s] parole
3
The trial court did not specify the statute it was referring to in its denial order.
Based on the prosecution’s argument opposing defendant’s motion, we presume the court
was relying on subdivision (a)(2)(C) of section 3051, which defines “ ‘[y]outh parole
eligible date’ ” and provides that “youth offenders are entitled to their initial youth
offender parole hearing within six months of their youth parole eligible date, as
determined in subdivision (b), unless previously released or entitled to an earlier parole
consideration hearing pursuant to any other law.”
3
suitability.”4 At such a hearing, the parole 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).)
Section 3051 was enacted while the defendant’s direct appeal was pending in
Franklin. (Franklin, supra, 63 Cal.4th at p. 272.) The California Supreme Court found
that sections 3051 and 4801 “contemplate that information regarding the juvenile
offender’s characteristics and circumstances at the time of the offense will be available
at a youth offender parole hearing to facilitate the Board’s consideration. For example,
section 3051, subdivision (f)(2) provides that ‘[f]amily members, friends, school
personnel, faith leaders, and representatives from community-based organizations with
knowledge about the individual before the crime . . . may submit statements for review
by the board.’ . . . In addition, section 3051, subdivision (f)(1) provides that any
‘psychological evaluations and risk assessment instruments’ used by the Board in
assessing growth and maturity ‘shall take into consideration . . . any subsequent growth
and increased maturity of the individual.’ Consideration of ‘subsequent growth and
increased maturity’ implies the availability of information about the offender when he
was a juvenile.” (Franklin, supra, at pp. 283-284.)
Because assembling such information was “typically a task more easily done at or
near the time of the juvenile’s offense” (Franklin, supra, 63 Cal.4th at p. 283), the court
remanded the matter to the trial court to give the defendant an opportunity to “put on the
record the kinds of information that sections 3051 and 4801 deem relevant at a youth
offender parole hearing” (id. at p. 284).
Several years later, the California Supreme Court considered in Cook “whether
a sentenced prisoner whose conviction is final can seek the remedy of evidence
4
Subdivision (h) of section 3051 renders certain youth offenders ineligible for
youth offender parole hearings, such as those sentenced under the “Three Strikes” law.
4
preservation”—that is, a Franklin hearing—“and, if so, by what means.” (Cook, supra,
7 Cal.5th at pp. 446-447.) The court held that “offenders with final convictions may file
a motion in the trial court for that purpose, under the authority of section 1203.01,” which
authorizes a trial court to “generate, collect, and transmit information about the defendant
and the crime to the Department of Corrections and Rehabilitation.” (Id. at p. 447.)
Importantly, the court observed that “[t]he 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.
[Citation.] Franklin authorized postjudgment proceedings to effectuate that intent.”
(Cook, supra, 7 Cal.5th at p. 449.) “ ‘[T]he statutory text makes clear that the Legislature
intended youth offender parole hearings to apply retrospectively, that is, to all eligible
youth offenders regardless of the date of conviction.’ [Citation.] By a parity of
reasoning, an evidence preservation process should apply to all youthful offenders now
eligible for such a parole hearing.” (Id. at p. 450, italics omitted.) Thus, a trial court may
conduct a Franklin hearing even if a parole hearing has already occurred. (See Cook,
supra, at p. 458 [stating that a motion for a Franklin hearing “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” (italics
added)].)
The parties agree that the trial court erred when it found defendant ineligible for
a Franklin hearing, and we concur. Because defendant was 20 years old when he
committed his controlling offense and is otherwise eligible under section 3051, he is
entitled to “youth offender parole hearing[s]” (id., subd. (a)(1)), where the board “give[s]
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
[defendant] in accordance with relevant case law” (§4801, subd. (c)). Accordingly,
5
Franklin’s “evidence preservation process” applies to defendant. (Cook, supra, 7 Cal.5th
at p. 450.)
The trial court appears to have rested its denial order on subdivision (a)(2)(C) of
section 3051, which defines “ ‘[y]outh parole eligible date’ ” and mandates that youth
offenders be provided with an initial youth offender parole hearing within six months of
their youth parole eligible date “unless previously released or entitled to an earlier parole
consideration hearing pursuant to any other law.” However, as defendant points out, this
provision of section 3051 sets out the requisite timing for an initial youth offender parole
hearing; it has no bearing on an offender’s entitlement to a youth offender parole hearing
or a Franklin hearing. And, as the Attorney General observes, “[a]lthough [defendant]
cannot benefit from the particular provisions in section 3051 that advance the parole
eligibility date for youthful offenders, his future parole hearings are still properly
consider[ed] youth offender parole hearings, and Franklin and Cook still apply.”
For these reasons, we conclude that the trial court erred when it found defendant
ineligible for a Franklin hearing and remand the matter for proceedings consistent with
Cook.5 (See Cook, supra, 7 Cal.5th at p. 450.)
5
The Attorney General asserts that the trial court could properly deny
defendant’s motion for a Franklin hearing if it determines that the hearing would be
an idle act. The California Supreme Court stated in Cook that “[a]lthough Franklin
mandates an opportunity for evidence preservation, the trial court may ‘exercise its
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.’ [Citation.]” (Cook, supra, 7 Cal.5th at p. 459.) The court also noted
that a trial 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)).” (Ibid.) However, there is no indication in the record
that defendant has had the benefit of the factfinding procedures under section 3051,
subdivision (f)(1) and (2).
6
IV. DISPOSITION
The trial court’s February 7, 2020 order denying defendant’s motion for a
Franklin hearing is reversed. The matter is remanded for Franklin proceedings
consistent with In re Cook (2019) 7 Cal.5th 439.
7
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
DANNER, J.
People v. Gomez
H048066