People v. McKinney CA2/4

Filed 7/2/21 P. v. McKinney CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B299448

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA115548)
v.

TIMOTHY JAMES MOLANO
McKINNEY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Steven D. Blades, Judge. Affirmed.
Paul Kleven, 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, Paul M. Roadarmel and
Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff
and Respondent.
________________________________________________

INTRODUCTION
In June 2017, appellant Timothy James Molano
McKinney fatally shot Joseph Aguilar. In May 2019,
rejecting appellant’s claim that he acted in self-defense, a
jury convicted him of voluntary manslaughter, and found
true the allegation that he used a firearm during the killing.
The court sentenced appellant to a total of 21 years: 11 years
for manslaughter, and 10 years for using a firearm during
the crime.
Appellant requests we reverse the judgment,
contending: (a) the court omitted a crucial portion of a
justifiable homicide instruction, and erred in giving an
instruction on mutual combat; and (b) he received ineffective
assistance of counsel because his counsel: (1) failed to elicit
evidence of methamphetamines in Aguilar’s system; (2)
failed to elicit sufficient evidence of Aguilar’s gang
membership; (3) agreed to the giving of the mutual combat
jury instruction; (4) misstated the law in his closing
argument; and (5) failed, at appellant’s sentencing hearing,
to submit evidence that would aid him in a future youth
offender parole hearing, for which appellant will be eligible

2
after his fifteenth year of incarceration. Appellant also
requests we remand to permit the court to hold a hearing in
which he can put such information on the record.1 We
decline the remand request and affirm the judgment.

STATEMENT OF RELEVANT FACTS

A. Before Trial
An information was filed in December 2017, charging
appellant with one count of murder and alleging he used a
firearm in the commission of the offense.
Prior to trial, the court ruled that appellant could
“bring out evidence that the victim [Aguilar] had
methamphetamines in his system as determined during the
autopsy.” It further suggested that upon proper proof, the
defense could elicit evidence of Aguilar’s gang membership.

B. Trial

1. Opening Statements
Trial began on May 16, 2019. In the prosecutor’s
opening statement, he laid out the basic facts of the events.
Appellant had attended a party held in the backyard of the
Aguilar family residence; a brawl had broken out after
Aguilar asked what gang appellant and his friends were
from, and as the partygoers exited the backyard for the front

1 These hearings are referred to as Franklin hearings, after
People v. Franklin (2016) 63 Cal.4th 261.

3
yard, Aguilar “lunge[d], or r[a]n[] at” appellant, and
appellant shot him.
Defense counsel told the jury that Aguilar had a knife
and was trying to attack appellant when he was shot. He
also stated the evidence would show that Aguilar had
methamphetamines and alcohol in his body. He concluded
that even if the jury found appellant had killed Aguilar, “it
was a justifiable killing,” and the jury would be compelled to
find appellant not guilty.

2. Testimony
Multiple witnesses testified at trial, including Aguilar’s
friends, several members of his family, and appellant’s
friends, all of whom were present when the shooting
occurred. Several professionals (police officers, a crime scene
investigator, and a coroner) also testified. All the witnesses
mainly agreed on the basic gist of the events.
At the invitation of Roxanne Martinez, appellant, along
with his friends Henry Aviles, Roberto Flores, Joseph
Rangel, and Jeremiah Rayford, attended a party held in the
backyard of a home belonging to the Aguilar family on June
16, 2017. Though several of appellant’s friends testified that
the partygoers “looked like gang members,” they
nevertheless joined the party. The party was peaceful for
the first few hours, with the attendees playing drinking
games, listening to music, and hanging out.
After appellant had been there for a while, Martinez
introduced Aguilar to appellant and his friends. When

4
Aguilar asked appellant’s friends where they were from,
Aviles responded he was from the Eastside Village Crips.2
Aguilar swung at him and a fight broke out. Testimony
differed on how many people were involved, but both Flores
and Martinez’s friend Katie Provencio testified appellant
was among those fighting. After Aguilar’s father attempted
to break up the melee, the partygoers began moving to the
front yard. Provencio heard appellant say “that somebody
hit him and the hits were like nothing and that he’ll fight
again.” Appellant appeared angry and “animated.”
As appellant was leaving the backyard, he was
involved in an altercation with one of Aguilar’s sisters.3 No
one disputes Aguilar approached appellant, and both his
father and one of his sisters testified they unsuccessfully
tried to stop him from doing so. Testimony differed on
whether Aguilar had a knife, but the majority of the

2 Flores testified that Aguilar looked “gang-affiliated,” and
Aviles testified that Aguilar introduced himself as “Trigger.”
Defense counsel also elicited from the coroner that Aguilar had a
“P” tattooed on his forehead. Martinez testified that she had told
detectives Aguilar was a “hothead,” though she also testified that
she knew him to be a “mellow person.”
3 In a recorded interview with detectives, Aguilar’s brother
Jessy said he saw people surrounding his sister and after
“push[ing] them off” her, fought with one who appeared to have a
gun. There was no evidence anyone other than appellant used a
gun that night.

5
witnesses testified they did not see him with a knife.4
Appellant then shot Aguilar and, according to numerous
witnesses, fired another shot before fleeing with his friends
in their cars.
Martinez testified that appellant ordered her to get
into the car with Aviles and him. As appellant drove away,
he bragged, “You don’t know me, you don’t know me, I’m the
real nigga.” Jessy Aguilar told detectives that as appellant
drove away, he yelled out the car window, “Catch another
one.” The morning after the incident, appellant contacted
Aviles and stated he shot Aguilar because Aguilar had tried
to stab Rangel. But in a recorded visit with his parents,
appellant denied shooting Aguilar and claimed Aviles was
the shooter.

3.
Jury Instructions and Closing
Arguments
After the defense rested, the court discussed jury
instructions with the attorneys. Among those discussed was
CALCRIM No. 3471 (Right to Self-Defense: Mutual Combat
or Initial Aggressor).5 The court accepted the prosecutor’s

4 An officer responding to the scene after Aguilar was shot
testified he saw a blood-covered knife on the ground, but the
knife disappeared before he had a chance to recover it.
5 “A person who engages in mutual combat or starts a fight
has a right to self-defense only if: [¶] 1. He actually and in good
faith tried to stop fighting; [¶] 2. He indicated, by word or by
conduct, to his opponent, in a way that a reasonable person would
(Fn. is continued on the next page.)

6
argument that the instruction was warranted based on the
testimony that appellant had been fighting in the backyard,
and was prepared to continue fighting. Defense counsel
objected that the instruction applied to an “initial
aggressor,” but the court pointed out that it applied to
“Mutual Combat or Initial Aggressor.” Defense counsel
responded, “Mutual combat I can see.”
After the People put on a rebuttal witness, the court
instructed the jury. The jury instructions included a
modified version of CALCRIM No. 505 (Justifiable Homicide:
Self-Defense or Defense of Another), which provided, in
pertinent part: “The defendant is not guilty of murder if he
was justified in killing someone in self-defense or defense of
another. The defendant acted in lawful self-defense or
defense of another if: [¶] 1. The defendant reasonably
believed that he or someone else was in imminent danger of
being killed or suffering great bodily injury. [¶] 2. The
defendant reasonably believed that the immediate use of
deadly force was necessary to defend against that danger. [¶]
AND [¶] 3. The defendant used no more force than was

understand, that he wanted to stop fighting and that he had
stopped fighting; [¶] AND [¶] 3. He gave his opponent a chance to
stop fighting. . . . A fight is mutual combat when it began or
continued by mutual consent or agreement. That agreement may
be expressly stated or implied and must occur before the claim to
self-defense arose.” (CALCRIM No. 3471.)

7
reasonably necessary to defend against that danger.”6 It
additionally instructed the jury that “[w]hen deciding
whether the defendant’s beliefs were reasonable, consider all
the circumstances as they were known to and appeared to
the defendant and consider what a reasonable person in a
similar situation with similar knowledge would have
believed” and that a defendant’s belief “may be reasonable
even if he relied on information that was not true” as long as
he “actually and reasonably . . . believed that the
information was true.”
The instructions also included CALCRIM Nos. 200
(Duties of Judge and Jury),7 570 (Voluntary Manslaughter:
Heat of Passion—Lesser Included Offense (Pen. Code,
§ 192(a)),8 571 (Voluntary Manslaughter: Imperfect
Self-Defense or Imperfect Defense of Another—Lesser

6 Unmodified, the first sentence of CALCRIM 505 is: “The
defendant is not guilty of (murder/ [or] manslaughter/ attempted
murder/ [or] attempted voluntary manslaughter) if (he/she) was
justified in (killing/attempting to kill) someone in (self-defense/
[or] defense of another).”
7 This instruction provided in pertinent part that “[w]ords
and phrases not specifically defined in these instructions are to
be applied using their ordinary, everyday meanings.” (CALCRIM
No. 200.)
8 “A killing that would otherwise be murder is reduced to
voluntary manslaughter if the defendant killed someone because
of a sudden quarrel or in the heat of passion.” (CALCRIM No.
570.) The instruction elaborated further on the meaning of
“sudden quarrel” and “heat of passion.”

8
Included Offense (Pen. Code, § 192)),9 and 3471 (Right to
Self-Defense: Mutual Combat or Initial Aggressor). Included
in the language of CALCRIM 571 was the following: “If you
conclude the defendant acted in complete self-defense, his
action was lawful and you must find him not guilty of any
crime.”
During closing arguments, the prosecutor argued the
evidence demonstrated appellant was guilty of murder in the
second degree. Acknowledging that if the jury concluded
appellant acted in self-defense he could be guilty of no crime,
the prosecutor explained, “So is this murder in the second
degree? Or first? Is this voluntary manslaughter under
heat of passion or imperfect self-defense? Or is this a
justified homicide? Because a justified homicide means . . . if
you find the defendant not guilty of first degree murder, not
guilty of second degree murder, not guilty of voluntary
manslaughter under heat of passion or imperfect
self-defense, you’re saying that the defendant is protected by

9 “A killing that would otherwise be murder is reduced to
voluntary manslaughter if the defendant killed a person because
he acted in imperfect self-defense. [¶] If you conclude the
defendant acted in complete self-defense, his action was lawful
and you must find him not guilty of any crime. The difference
between complete self-defense and imperfect self-defense depends
on whether the defendant’s belief in the need to use deadly force
was reasonable.” (CALCRIM No. 571.) The instruction further
provided that “[i]n evaluating the defendant’s beliefs, consider all
the circumstances as they were known and appeared to the
defendant.”

9
the law of self-defense. He is literally enshrined with that
cloak. He’s a hundred percent lawfully legally justified in
taking the life of another human being, and he walks out
this door with everybody else. A free man. Justified in what
he did on June 16, 2017. That’s what justified homicide
really means.”
Defense counsel argued appellant killed Aguilar in
self-defense or in defense of another. He concluded, “even
though [appellant] shot and killed Joseph Aguilar, it’s a
clear case of either self-defense or defense of another,
namely Joseph Rangel who was standing next to [appellant].
Therefore it’s considered justifiable homicide, and by law you
must find him not guilty of the crime of murder.”
In rebuttal, the prosecutor agreed the jury should find
the killing was justified if it believed Aguilar rushed
appellant while holding a knife, but argued that such
testimony was not credible. He acknowledged the presence
of a knife at the scene, but noted that only appellant’s
witnesses had placed the knife with Aguilar.

4. Verdict and Sentencing
After final closing instructions, the jurors were
dismissed for lunch. At 3:36 p.m., they reached a verdict,
finding appellant guilty of voluntary manslaughter, and
finding true the allegation that he used a firearm in
committing the crime.
At the sentencing hearing, appellant’s counsel
submitted a letter from appellant to the court and to

10
Aguilar’s family, accepting responsibility for his actions.
Both sides also had submitted sentencing memoranda.
Defense counsel argued that appellant had acted in
self-defense, and opined that appellant was remorseful and
wanted to “do good.” The court sentenced appellant to 21
years in prison, 11 for manslaughter, and 10 years for the
use of a firearm. Appellant timely appealed.

DISCUSSION

A. The Jury Instructions Do Not Require
Reversal
“The trial court is charged with instructing upon every
theory of the case supported by substantial evidence . . . .”
(People v. Montoya (1994) 7 Cal.4th 1027, 1047.) “‘[T]he
correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts
of an instruction or from a particular instruction.’” (People v.
Delgado (2017) 2 Cal.5th 544, 574.) The “‘“absence of an
essential element in one instruction may be supplied by
another or cured in light of the instructions as a whole.”’”
(Ibid.)
The People contend that any instructional error should
be reviewed under the standard articulated in People v.
Watson (1956) 46 Cal.2d 818, 836 [error should result in
reversal only if “it is reasonably probable that a result more
favorable to the appealing party would have been reached in
the absence of the error”]. Appellant contends that any error

11
should be reviewed under the standard set forth in
Chapman v. California (1967) 386 U.S. 18, 24 [reversal
required unless we “declare a belief that [the error] was
harmless beyond a reasonable doubt”]. Because we find any
error harmless under either standard, we do not resolve this
dispute.

1. Self-Defense
The version of CALCRIM 505 with which the court
instructed the jury stated appellant was “not guilty of
murder if he was justified in killing someone in self-defense
or defense of another,” but did not also state appellant would
not be guilty of manslaughter if he was justified in the
killing. However, the jury was also instructed with
CALCRIM 571, which provided in pertinent part that a
“killing that would otherwise be murder is reduced to
voluntary manslaughter if the defendant killed a person
because he acted in imperfect self-defense. [¶] If you
conclude the defendant acted in complete self-defense, his
action was lawful and you must find him not guilty of any
crime. The difference between complete self-defense and
imperfect self-defense depends on whether the defendant’s
belief in the need to use deadly force was reasonable.”
Appellant argues these instructions “did not allow the
jury to reach a verdict of not guilty on voluntary
manslaughter if it found that he acted in self-defense.” He
additionally contends he was prejudiced by the omission of
manslaughter from CALCRIM 505 because, while CALCRIM

12
571 instructed the jury to find him “not guilty of any crime”
if his “belief in the need to use deadly force was reasonable,”
the instruction provided no guidance to the jury on how to
determine reasonableness; appellant contends such guidance
was found only in CALCRIM 505. We are unpersuaded.
Even assuming the court erred in omitting the words “or
manslaughter” from CALCRIM 505, we find the error
harmless.
First, it is self-evident that the instructions allowed the
jury to reach a verdict of not guilty on voluntary
manslaughter if it found appellant acted in reasonable
self-defense. Instructing the jury that it must find appellant
“not guilty of any crime,” necessarily includes finding him
not guilty of manslaughter.
Second, it does not matter whether the jury had been
specifically instructed that reasonable self-defense was a
defense to manslaughter, because the verdict demonstrates
the jury rejected a conclusion that appellant acted in
reasonable self-defense. Both jury instructions that could
lead to a conviction for voluntary manslaughter -- CALCRIM
570 and 571 -- presupposed the jury had already found
appellant would otherwise be guilty of murder.10 But the

10 The first sentence of CALCRIM 570 provides that “[a]
killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed someone because of a
sudden quarrel or in the heat of passion.” The first sentence of
CALCRIM 571 provides that “[a] killing that would otherwise be
murder is reduced to voluntary manslaughter if the defendant
killed a person because he acted in imperfect self-defense.”

13
version of CALCRIM 505 given to the jury stated that a
defendant is not guilty of murder if he acted in reasonable
self-defense. Thus, before the jury could find appellant
guilty of voluntary manslaughter, it must necessarily have
rejected the conclusion that he acted in reasonable
self-defense; had it accepted that defense, he would not
otherwise be guilty of murder and could not be guilty of
voluntary manslaughter. It is therefore irrelevant whether
the jury was explicitly told that reasonable self-defense was
a defense to manslaughter.
Third, contrary to appellant’s contention, CALCRIM
571 provides guidance on how to determine whether a
defendant’s belief is reasonable -- it instructs a jury to
“consider all the circumstances as they were known and
appeared to the defendant.” While CALCRIM 505 provides
additional guidance on how to determine the reasonableness
of appellant’s belief, that does not render CALCRIM 571’s
guidance insufficient. The jury was also instructed with
CALCRIM 200 that “[w]ords and phrases not specifically
defined in these instructions are to be applied using their
ordinary, everyday meanings.” To the extent the guidance
provided in CALCRIM 571 is less robust than that in
CALCRIM 505, we find the ordinary, everyday meaning of
“reasonable” bridges the gap. Accordingly, any error
resulting from the omission of “or manslaughter” from
CALCRIM 505 was harmless beyond a reasonable doubt, as
there is no reasonable probability that the inclusion of those

14
two words would have resulted in an outcome more favorable
to appellant.11

2. Mutual Combat
CALCRIM 3471 provides that “A fight is mutual
combat when it began or continued by mutual consent or
agreement. That agreement may be expressly stated or
implied and must occur before the claim to self-defense
arose.” When discussing this instruction with counsel, the
court accepted the prosecutor’s argument that the jury could
find mutual combat from the testimony that appellant had
been fighting with Aguilar in the backyard, and was
prepared to continue fighting. Defense counsel did not object
to this reasoning -- his only concern was that the instruction
applied to an “initial aggressor”; he agreed the evidence
warranted a finding of mutual combat. (“Mutual combat I
can see.”)
On appeal, appellant argues the court erred in giving
this instruction because there was no substantial evidence
that the fight between Aguilar and appellant was mutual

11 In his reply brief appellant argues that pursuant to People
v. Quach (2004) 116 Cal.App.4th 294, we must reverse because
the CALCRIM 505 instruction stating that self-defense was a
defense to murder contradicted CALCRIM 571, which stated
self-defense was a defense to manslaughter. (See id. at 300-303
[when court gave a jury instruction that misstated the law,
reversal was warranted even if other instructions court gave
might have implied the correct law, because correct law may have
led to acquittal].) We perceive no contradiction, and thus find
Quach inapplicable.

15
combat. The People contend appellant forfeited this
argument because defense counsel acquiesced to the
instruction. “Generally, a party forfeits any challenge to a
jury instruction that was correct in law and responsive to the
evidence if the party fails to object in the trial court.”
(People v. Franco (2009) 180 Cal.App.4th 713, 719.)
However, we have discretion to consider such a challenge on
appeal, and do so here. (People v. Foster (2010) 50 Cal.4th
1301, 1346, fn. 9; Pen. Code, § 1259.)
A court “should instruct the jury on every theory of the
case, but only to the extent each is supported by substantial
evidence.” (People v. Flannel (1979) 25 Cal.3d 668, 685.)
While the evidence supporting a mutual combat instruction
was by no means overwhelming, we find it sufficient to
warrant the giving of the instruction.
Two witnesses testified that appellant had been
fighting in the backyard when the initial melee broke out.
One also testified that as appellant was leaving the
backyard, he said, “the hits were like nothing and that he’ll
fight again.” Another witness stated that he fought with
someone in the front yard who turned out to have a gun (i.e.,
appellant). From this testimony, a jury could conclude that
appellant had agreed to continue in the front yard the brawl
begun with Aguilar and others in the backyard; thus any
fight between Aguilar and appellant occurred by implied,
mutual consent. We discern no error in giving the
instruction.

16
 B. Appellant Fails to Establish Ineffective
Assistance of Counsel
To succeed on a claim of ineffective assistance of
counsel, appellant must show that his “counsel’s
performance fell below a standard of reasonable competence,
and that prejudice resulted.” (People v. Anderson (2001) 25
Cal.4th 543, 569.) “If a defendant fails to show prejudice, a
reviewing court may reject the claim without determining
the adequacy of counsel’s performance.” (People v. Mendoza
(2000) 24 Cal.4th 130, 170.)
Appellant claims ineffective assistance of counsel
because his counsel: (1) failed to elicit evidence that Aguilar
had methamphetamines in his system; (2) failed to elicit
evidence that Aguilar belonged to a gang; (3) agreed to the
giving of the mutual combat jury instruction; (4) failed to
explain the law correctly in his closing argument; and (5)
failed to put in the record evidence that would be useful to
appellant when his youthful offender parole hearing takes
place after his fifteenth year of incarceration. We address
each contention in turn.

1. Aguilar Being Under the Influence of
Methamphetamines
In his opening statement, appellant’s counsel stated
“the evidence will show that Joseph Aguilar had
methamphetamines in his body and alcohol in his body.”
Counsel failed to present evidence that Aguilar had
methamphetamines in his system, though such evidence was

17
available.12 Appellant argues that his counsel’s failure to
elicit this evidence prejudiced him because “the failure to
produce a promised witness or critical testimony may
amount to ineffective assistance of counsel if it is not
attributable to a reasonable tactical decision.”
Appellant has failed to demonstrate this evidence was
“critical testimony.” While being under the influence of
methamphetamines could explain Aguilar’s aggressive
behavior, it was uncontradicted that he behaved
aggressively. No witnesses disputed that Aguilar instigated
the fight in the backyard. No one denied that Aguilar
approached appellant before he was shot, and both Aguilar’s
father and one of his sisters testified they tried
unsuccessfully to stop Aguilar from doing so. In his opening
statement, the prosecutor flatly admitted that Aguilar had
“lunge[d], or run[] at” appellant, before appellant shot him.
We fail to see the significance of whether Aguilar
approached appellant because he was a “hothead,” as
Martinez testified, because he was under the influence of
methamphetamines, or for some other reason. The relevant
evidence was that Aguilar approached appellant -- a fact the
prosecution conceded. Because appellant has failed to
demonstrate prejudice, we reject his claim of ineffective
assistance.

12 The court had ruled that defense counsel could “bring out
evidence that the victim had methamphetamines in his system as
determined during the autopsy,” but counsel elicited from the
coroner only that Aguilar had a “P” tattooed on his forehead.

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 2. Gang Membership
Appellant argues his counsel ineffectively cross-
examined several witnesses about Aguilar’s gang
membership, though evidence of the gang membership was
elicited at the preliminary hearing. Appellant contends
Aguilar’s gang membership was relevant to his self-defense
claim, because it established Aguilar’s “violent character or
reputation.” We find applicable here the same analysis
applied to his claim regarding methamphetamines. While
Aguilar’s gang membership may have explained why he
acted aggressively, there was no dispute that he did, and
thus his motivation had little relevance.
In any case, there was ample evidence of Aguilar’s
gang membership. Aviles testified that Aguilar introduced
himself as “Trigger,” presumably a gang moniker. Other
witnesses testified that the partygoers “looked like gang
members,” and one specifically stated Aguilar “looked
gang-affiliated.” Multiple witnesses testified that Aguilar’s
first interaction with appellant and his friends was to ask
what gang they were from. Finally, defense counsel elicited
from the coroner that Aguilar had a “P” tattooed on his
forehead. On this record, it is inconceivable the jury did not
understand Aguilar to be affiliated with a gang.

3. Mutual Combat Jury Instruction
In his supplemental brief, appellant argues that his
counsel was ineffective because he acquiesced to the giving
of the mutual combat jury instruction. As stated above,

19
substantial evidence supported the giving of that instruction;
counsel cannot be faulted for failing to object to an
instruction supported by substantial evidence. (People v.
Valenzuela (2011) 199 Cal.App.4th 1214, 1234 [because
mutual combat instruction was supported by substantial
evidence, “the court would properly have denied any defense
objection, [and defendant] was not prejudiced by the failure
to object”].) Moreover, a review of the record makes clear the
court would have overruled any objection to the instruction
based on lack of substantial evidence. (People v. Price (1991)
1 Cal.4th 324, 387 [“Counsel does not render ineffective
assistance by failing to make motions or objections that
counsel reasonably determines would be futile”].) Given that
appellant has been permitted to raise the appropriateness of
this instruction on appeal, he demonstrates no prejudice
from his counsel’s failure to object.

4. Allegedly Incorrect Statement of Law in
Closing Argument
Appellant contends he received ineffective assistance of
counsel because, by arguing to the jury that if the killing of
Aguilar was a clear case of self-defense or defense of another
“it’s considered justifiable homicide, and by law you must
find him not guilty of the crime of murder,” defense counsel
“reduced the prosecution’s burden by misstating the law and
implying that [appellant] could only be found guilty of
manslaughter even if he acted in complete self-defense.” We
disagree.

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 The prosecutor’s closing argument left no doubt that
the jury’s finding that appellant acted in self-defense would
preclude his conviction for either murder or manslaughter:
“A justified homicide means this: It means . . . if you find the
defendant not guilty of first degree murder, not guilty of
second degree murder, not guilty of voluntary manslaughter
under heat of passion or imperfect self-defense, you’re saying
that the defendant is protected by the law of self-defense.
He is literally enshrined with that cloak. He’s a hundred
percent lawfully legally justified in taking the life of another
human being, and he walks out this door with everybody
else. A free man.” Given the prosecutor’s acknowledgment
that self-defense was a complete defense to manslaughter as
well as murder, defense counsel’s failure to reiterate that it
was a defense to manslaughter did not fall below the
standard of reasonable competency. Additionally, given the
prosecutor’s statement, and the jury instructions making
clear that reasonable self-defense was a defense to any
crime, appellant has failed to demonstrate prejudice.

5. Franklin Factors
Penal Code 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.” In such a hearing, the parole board should

21
review “information regarding the juvenile offender’s
characteristics and circumstances at the time of the offense.”
(People v. Franklin (2016) 63 Cal.4th 261, 283 (Franklin).)
Appellant contends his counsel was ineffective because he
failed to place such information in the record.
Appellant points to nothing in the record that indicates
there were favorable characteristics and circumstances that
his counsel failed to submit at the sentencing hearing.
Given that he initially lied to his parents about being the
shooter and tried to blame the killing on one of his friends, it
is conceivable there were no favorable characteristics to be
placed in the record. Appellant has again failed to
demonstrate prejudice.

C. We Decline to Remand for a Franklin
Hearing
Aside from his claim that his counsel was ineffective
for failing to place on the record information that would help
him at a youth offender parole hearing, appellant also
requests that we remand and instruct the court to hold a
Franklin hearing. We decline. Appellant may request a
Franklin hearing by other means.
In Franklin, our Supreme Court was faced with a
situation in which a defendant who would be eligible for a
youth offender parole hearing under the newly enacted
Penal Code sections 3051 and 4801 had potentially not been
“given adequate opportunity at sentencing to make a record
of mitigating evidence tied to his youth.” (Franklin, supra,

22
63 Cal.4th at 269.) Because it was unclear “whether [the
defendant] had sufficient opportunity to put on the record
the kinds of information that sections 3051 and 4801 deem
relevant at a youth offender parole hearing,” the court
“remand[ed] the matter to the trial court for a determination
of whether [the defendant] was afforded sufficient
opportunity to make a record of information relevant to his
eventual youth offender parole hearing.” (Id. at 284.)
Here, by contrast, appellant’s sentencing hearing in
June 2019 occurred more than five years after section 3051
took effect, and more than three years after Franklin was
decided. He had ample opportunity to submit whatever
mitigating information he wanted. The record discloses that,
at his sentencing hearing, appellant’s counsel submitted
both a sentencing memorandum, and a letter from appellant
accepting responsibility for his actions, which letter counsel
read into the record. In addition, when appellant’s counsel
was asked if he had anything else to present before the court
pronounced sentence, counsel only renewed his argument
that appellant acted in self-defense, and opined that
appellant was remorseful and wanted to “do good”; counsel
had nothing else to offer.
Appellant cites People v. Carranza (2019) 40
Cal.App.5th 673, rehg. granted Oct. 16, 2019, in support of
his argument that we should remand for a Franklin hearing.
Carranza discussed the importance of preserving
information relevant to an eventual youth offender parole
hearing and concluded that, although nothing prevented the

23
defendant from asking for a Franklin hearing, “his trial
counsel submitted no sentencing memoranda, documents, or
testimony relevant to a future youth offender parole hearing.
Neither defense counsel, the prosecutor, nor the trial court
mentioned the future youth offender parole hearing, or
appeared to be aware that the sentencing hearing was the
preferred time to place on the record evidence relevant to the
youth offender parole hearing.” (Id. at 683.) Given those
circumstances, even though the defendant was sentenced
after Franklin was decided, the court remanded the matter
to hold a Franklin hearing. (Id. at 680, 684.)
Carranza was criticized by People v. Medrano (2019) 40
Cal.App.5th 961, 968, fn. 9, review den. Jan. 2, 2020,
S259021 (Medrano): “We do not find the reasoning in
Carranza persuasive, and we decline to follow it. In our
view, Carranza fails to articulate a sound basis for declining
to apply to the right to a Franklin proceeding the same
forfeiture rules that apply to countless other rights in
criminal proceedings. In addition, Carranza reasons that
because (1) claims of ineffective assistance of counsel
‘typically fail’ on direct appeal, and (2) under [In re] Cook
[(2019) 7 Cal.5th 439 (Cook)] a petition for writ of habeas
corpus is not an appropriate vehicle for seeking a Franklin
proceeding either, it follows that (3) the right to a Franklin
proceeding should not be subject to forfeiture by inaction,
because such inaction might be the result of ineffective
assistance for which there appears to be no remedy.
[Citation.] We disagree. Cook held that a habeas corpus

24
petition is not an appropriate vehicle for seeking a Franklin
proceeding because there is an adequate remedy at law,
namely, a motion under section 1203.01. (Cook, supra, 7
Cal.5th at p. 447.)”13 Therefore, “because [the defendant]
was sentenced one and one-half years after Franklin, and
because nothing in the record indicates that [the defendant]
lacked an adequate opportunity at sentencing to make a
record of mitigating youth-related evidence, we see no basis
to order the same relief that the Supreme Court granted in
Franklin.” (Medrano, supra, 40 Cal.App.5th at 963.)
Less than two weeks after Medrano was issued, the
Carranza court granted a petition for rehearing (thus
vacating its prior opinion) and subsequently reversed itself.
(People v. Carranza (Nov. 6, 2019, A152211) 2019
Cal.App.Unpub. LEXIS 7407, *2, fn. 2 [nonpub. opn.] [“On
September 30, 2019, this court filed a decision remanding

13 In Cook, our Supreme Court was confronted with the
question of how “a juvenile offender with a final conviction [could]
gain access to the trial court for an evidence preservation
proceeding” to submit evidence that would be helpful to a youth
offender parole hearing, and whether a petition for a writ of
habeas corpus was a proper procedure for that purpose. (Cook,
supra, 7 Cal.5th at 451.) The court concluded that “[i]n cases
with final judgments, [Penal Code] section 1203.01 gives the trial
court authority to conduct an evidence preservation proceeding as
envisioned in Franklin.” (Id. at 452.) Therefore, it instructed the
Court of Appeal to deny the defendant’s petition for writ of
habeas corpus, “without prejudice to [the defendant]’s filing a
motion in the trial court for a Franklin proceeding under the
authority of section 1203.01 and today’s decision.” (Id. at 460.)

25
with directions that the trial court conduct a Franklin
proceeding. On October 16, this court granted respondent’s
petition for rehearing based on the decision in Medrano,
supra, 40 Cal.App.5th 961. The grant of rehearing vacated
our September 30 decision. (Cal. Rules of Court, rule
8.268(d).)”]; id. at *18-*19 [“Because appellant has not
shown the trial court’s sentence was unauthorized for failure
to conduct a Franklin proceeding, or shown any other basis
to deviate from the Scott forfeiture rule, we deny appellant’s
request for remand for a Franklin proceeding. Appellant
may, however, seek such a proceeding under section
1203.01”].)
We agree with Medrano (and the subsequent decision
in Carranza), and decline appellant’s request to remand for
the court to hold a Franklin hearing, without prejudice to his
filing a motion “for a Franklin proceeding under the
authority of section 1203.01” and Cook. (Cook, supra, 7
Cal.5th at 460.)

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 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.

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