Filed 7/23/21 P. v. McClenton CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B304917
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA104610
v.
JOVAN MCCLENTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Affirmed.
David M. Thompson, 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
Attorney General, David E. Madeo and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
When he was 17 years old, defendant and appellant Jovan
McClenton was convicted of first-degree residential robbery,
grand theft of vehicles, and numerous sex offenses. The trial
court sentenced him to 196 years in state prison. The judgment
became final in 1996.
In 2012, McClenton filed a petition for writ of habeas
corpus in the trial court challenging the constitutionality of his
sentence. In 2018, the court ruled McClenton was not eligible for
a resentencing hearing, but that he was eligible for a hearing
under People v. Franklin (2016) 63 Cal.4th 261 (Franklin).1 The
court set the matter for further proceedings.
In 2019, while the Franklin matter was still pending,
McClenton filed a motion to have his case transferred to juvenile
court under Proposition 57, “The Public Safety and Rehabilitation
Act of 2016.” The trial court rejected McClenton’s motion,
concluding he was not entitled to Proposition 57 relief because his
case was final when the law took effect.
On appeal, McClenton argues he is entitled to a transfer
hearing because his habeas corpus petition was not final when
Proposition 57 took effect. We reject this contention. McClenton’s
judgment was final on direct appeal when Proposition 57 took
effect. In the interim, McClenton has not been resentenced, and
his entitlement to a youth offender parole hearing does not
render his judgment nonfinal for retroactivity purposes. We
1 A Franklin hearing allows a juvenile offender the
“opportunity to put on the record the kinds of information that
[Penal Code] sections 3051 and 4801 deem relevant at a youth
offender parole hearing.” (See Franklin, supra, 63 Cal.4th at p.
284.)
2
therefore affirm the trial court’s denial of his motion for a
transfer hearing.
BACKGROUND
In 1995, McClenton was tried in adult court and convicted
of one count of first degree residential burglary (Pen. Code,2
§ 459); two counts of grand theft vehicle (former § 487h); three
counts of first degree residential robbery (§ 211); seven counts of
oral copulation while acting in concert (former § 288a, subd. (d));
four counts of forcible rape while acting in concert (§ 264.1); one
count of forcible act of sexual penetration (§ 289, subd. (a)); one
count of forcible rape (§ 261, subd. (a)(2)); and one count of
forcible oral copulation (§ 288a, subd. (c)). Gun use allegations
were also found true. The court sentenced McClenton to 196
years in state prison. He was 17 years old when he committed the
offenses and when he was sentenced. In 1996, this court affirmed
the judgment in case number B093292. On September 18, 1996,
our Supreme Court denied review.
In 2012, McClenton filed a petition for writ of habeas
corpus in the trial court challenging the constitutionality of his
sentence under Blakely v. Washington (2004) 542 U.S. 296 [124
S.Ct. 2531, 159 L.Ed.2d 403], Cunningham v. California (2007)
549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856], and Graham v.
Florida (2010) 560 U.S. 48 [130 S.Ct. 2011, 176 L.Ed.2d 825]. The
trial court issued an order to show cause. The prosecution filed a
return, an amended return, and a second amended return. The
prosecution acknowledged McClenton was a juvenile when he
was convicted, and his 196-year sentence constituted a de facto
2 All undesignated statutory references are to the Penal
Code.
3
life without the possibility of parole (LWOP) sentence. The
prosecution argued, however, that the enactment of Senate Bill
260 rendered moot whether McClenton’s sentence was
unconstitutional, because he was eligible for a youth offender
parole hearing on January 1, 2014. (See § 3051; Franklin, supra,
63 Cal.4th at pp. 268-269.) McClenton filed a denial to the second
amended return.
In 2016, the trial court denied McClenton’s petition, finding
that under Montgomery v. Louisiana (2016) 577 U.S. 190 [136
S.Ct. 718, 193 L.Ed.2d 599] (Montgomery), the statutory scheme
under section 3051 satisfied any constitutional concerns in
regards to McClenton’s sentence. McClenton filed a motion to
reconsider and asked for permission for the parties to submit
briefing on Montgomery. The court granted the motion and
vacated the order denying the petition.
The prosecution filed a “concession letter” arguing
McClenton’s sentence was valid because he was entitled to a
youth offender parole hearing under section 3051, but
acknowledged a limited remand was warranted to provide
McClenton an opportunity to present youth-related mitigating
evidence in the trial court under Franklin. The prosecution noted
the parties agreed defense counsel would begin investigating
McClenton’s background to gather youth-related mitigation
evidence, but disagreed on whether McClenton was entitled to a
new sentencing hearing. The court ordered defense counsel to
begin gathering Franklin evidence related to McClenton’s youth.
On January 29, 2018, McClenton filed a supplemental brief
arguing he was entitled to a resentencing hearing. The trial court
ordered the prosecution to clarify its position on resentencing.
The prosecution filed a letter brief maintaining its position that
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McClenton was not entitled to a new sentencing hearing, only a
Franklin hearing. McClenton filed a second supplemental brief.
On September 6, 2018, the court ruled McClenton was not
eligible for a resentencing hearing, but was eligible for a Franklin
hearing. The court set the matter for further proceedings.
On November 6, 2018, McClenton filed a petition for writ of
habeas corpus in this court in case number B293648. On
November 15, 2018, this court denied the petition as moot under
section 3051. On November 28, 2018, McClenton filed a petition
for review in the California Supreme Court in case number
S252751. The Supreme Court denied the petition on January 30,
2019.
On March 26, 2019, while the Franklin matter was still
pending, McClenton filed a motion to transfer the case to juvenile
court under Proposition 57. He argued that his judgment was not
final when Proposition 57 took effect because the California
Supreme Court had denied the petition for review (from the
denial of his resentencing habeas petition) on January 30, 2019,
and he had 90 days to file a petition for writ of certiorari in the
United States Supreme Court. The prosecution filed an
opposition arguing McClenton’s judgment was final because his
request for resentencing had been denied. McClenton filed a reply
arguing his judgment was not final because his October 2, 2012
habeas petition was still pending when Proposition 57 took effect
in 2016.3
On December 20, 2019, the trial court denied McClenton’s
motion to transfer the case to juvenile court. In issuing its ruling,
3 On April 30, 2019, McClenton filed a petition for writ of
certiorari in the United States Supreme Court in case number 18-
9123. The Supreme Court denied the petition on June 27, 2019.
5
the court explained that the mere pendency of McClenton’s
habeas corpus petition did not render his judgment nonfinal for
purposes of retroactive Proposition 57 relief.
McClenton timely appealed.
DISCUSSION
McClenton is not entitled to Proposition 57 relief because
his judgment was final when that law took effect
The trial court concluded McClenton was not entitled to
Proposition 57 relief because his judgment was final when that
law took effect. McClenton’s sole argument on appeal is the trial
court erred because his pending habeas corpus petition rendered
his case nonfinal for purposes of Proposition 57 retroactivity. For
the reasons discussed below, we reject this contention.
A. Proposition 57
In November 2016, the electorate passed Proposition 57.
Among other things, “Proposition 57 prohibits prosecutors from
charging juveniles with crimes directly in adult court.” (People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).) “Instead,
they must commence the action in juvenile court. If the
prosecution wishes to try the juvenile as an adult, the juvenile
court must conduct . . . a ‘transfer hearing’ to determine whether
the matter should remain in juvenile court or be transferred to
adult court. Only if the juvenile court transfers the matter to
adult court can the juvenile be tried and sentenced as an adult.
[Citation.]” (Ibid., fn. omitted.) The California Supreme Court has
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held Proposition 57 applies retroactively to cases not yet final at
the time it was enacted. (Lara, supra, at pp. 303-304.)
Conversely, Proposition 57 does not apply to cases that were final
at the time it was enacted. (People v. Lizarraga (2020) 56
Cal.App.5th 201, 207-208.)
B. Analysis
As mentioned above, McClenton was convicted and
sentenced in 1996. This court affirmed the judgment that same
year. Our Supreme Court denied review on September 18, 1996.
McClenton’s case became final 90 days later, on December 17,
1996, when the time for filing a petition for certiorari in the
United States Supreme Court expired. (See People v. Buycks
(2018) 5 Cal.5th 857, 876, fn. 5 [“A judgment becomes final when
the availability of an appeal and the time for filing a petition for
certiorari with the United States Supreme Court have expired.
[Citation.]”]; U.S. Supreme Ct. Rules, rule 13(1) [petition for writ
of certiorari is timely if filed with the clerk of the United States
Supreme Court within 90 days after entry of judgment of a state
court of last resort].) It follows that McClenton’s case was final
when Proposition 57 took effect in 2016. We reject McClenton’s
assertion that his case was not final when Proposition 57 took
effect because his habeas corpus petition was pending in the trial
court.
People v. Hargis (2019) 33 Cal.App.5th 199 (Hargis), People
v. Padilla (2020) 50 Cal.App.5th 244, review granted Aug. 26,
2020, S263375 (Padilla), and People v. Lopez (2020) 56
Cal.App.5th 835, review granted Jan. 27, 2021, S265936 (Lopez)
are of no assistance to McClenton. Unlike McClenton’s case, the
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judgments in Hargis, Padilla, and Lopez were not final for
purposes of Proposition 57 retroactivity. (See Hargis, supra, 33
Cal.App.5th at pp. 202-205 [case was not final for retroactivity
purposes because Proposition 57 took effect merely one week
after judgment was affirmed on direct appeal]; Padilla, supra, 50
Cal.App.5th at pp. 246-247, 253-256 [granting Padilla retroactive
Proposition 57 relief, concluding his judgment was no longer final
because his original sentence was vacated through writ of habeas
corpus]; Lopez, supra, 56 Cal.App.5th at pp. 839, 845 [case was
rendered nonfinal for purposes of retroactive Proposition 57 relief
because trial court recalled defendant’s sentence and resentenced
him under section 1170, subdivision (d)(1)].) Although it is true
that if the trial court had ordered resentencing proceedings for
McClenton, this would have reopened finality for purposes of
Proposition 57 retroactivity (see, e.g., Padilla, supra, at p. 247;
Lopez, supra, at pp. 839, 845), the court explicitly declined to do
so.4 As a result, McClenton’s judgment remained final.
We are likewise not persuaded by McClenton’s argument
that he is entitled to relief under People v. Garcia (2018) 30
Cal.App.5th 316 (Garcia). The Attorney General in Garcia
conceded the judgment was not final when Proposition 57 took
effect. (Id. at p. 324.) Because the parties agreed the judgment
was not final, the issue of finality was not fully analyzed in
Garcia. It is clear, however, that Garcia’s appeal arose after he
4 The court’s decision to decline McClenton’s request for a
resentencing hearing was not an abuse of discretion. (See
Franklin, supra, 63 Cal.4th at p. 268 [concluding the enactment
of Penal Code sections 3051 and 4801 mooted constitutional claim
that the Eighth Amendment prohibited the imposition of LWOP
or de facto LWOP sentences on juvenile offenders].)
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was resentenced in the trial court through habeas corpus
proceedings. (Id. at pp. 319-322.) At the resentencing hearing, the
trial court vacated Garcia’s original sentence of 94 years to life
and resentenced him to a term of 50 years to life. (Id. at pp. 321-
322.) This resentencing hearing rendered his judgment nonfinal
for retroactivity purposes. (See Padilla, supra, 50 Cal.App.5th at
pp. 246-247; see also People v. Karaman (1992) 4 Cal.4th 335,
344, fn. 9 [“In a criminal case, judgment is rendered when the
trial court orally pronounces sentence. [Citations.]”].) The
circumstances in Garcia are different from what happened to
McClenton, who was denied a resentencing hearing in the trial
court, and whose judgment has remained final since 1996. We
therefore reject McClenton’s argument that he is entitled to
retroactive Proposition 57 relief under Garcia.5
5 McClenton’s attorney cites extensively to an unpublished
opinion, In re Moore (June 19, 2020, B299307) (Moore), in support
of his contention that McClenton is entitled to retroactive
Proposition 57 relief. McClenton’s attorney ignores the rule that
both he and this court are prohibited from citing or relying on
Moore because it is unpublished and none of the exceptions to the
rule prohibiting citation to unpublished opinions applies here.
(See California Rules of Court, rule 8.1115, subds. (a) and (b).)
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DISPOSITION
The order denying McClenton’s motion to transfer his case
to juvenile court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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