Filed 11/18/21 P. v. Mack CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B309396
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA024413)
v.
EVYN DELAYNE MACK,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Spolin Law and Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
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A jury convicted Evyn Delayne Mack of numerous crimes in
2003 after he robbed a bank when he was 23 years old. In 2020,
Mack filed a motion for a Franklin1 proceeding. The trial court
denied the motion, concluding that Mack was ineligible for a
youth offender parole hearing under Penal Code2 section 3051,
subdivision (h) because he was sentenced pursuant to the “Three
Strikes” law (§§ 667, subds. (b)–(i), 1170.12) and therefore not
entitled to a Franklin proceeding. Mack contends that this was
error because eligibility for a youth offender parole hearing is not
a prerequisite to a Franklin proceeding. For the following
reasons, we affirm.
BACKGROUND
The following facts are taken from the opinion of a different
panel of this Division in People v. Washington (2005) 127
Cal.App.4th 290.
In April 2002, Mack and his codefendant Mark Johahn
Washington committed a take-over robbery of a bank. During
the robbery, Mack struck a teller in the face and threatened other
bank employees with what appeared to be a handgun wrapped in
a bandana. Washington pointed a shotgun at the bank
manager’s head, demanding that she open the bank vault. Mack
and Washington took the cash from the vault and fled. (People v.
Washington, supra, 127 Cal.App.4th at pp. 295–296.)
Shortly after the robbery, sheriff’s deputies found Mack and
Washington in a house nearby. The deputies recovered $128,835
in cash, including five marked bills the bank previously had
1 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
2 All further statutory references are to the Penal Code.
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recorded in the event of a robbery. A loaded shotgun was found
in the bathroom closet. (People v. Washington, supra, 127
Cal.App.4th at p. 296.)
An amended information charged Mack with two counts of
kidnapping to commit robbery (§ 209, subd. (b)(1)), three counts
of robbery (§ 211), three counts of assault with a firearm (§ 245,
subd. (a)(2)), and eight counts of false imprisonment by violence
(§ 236). The amended information also alleged that the offenses
were committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)), a principal was armed with a firearm
(§ 12022, subd. (a)(1)), and each defendant personally used a
firearm (§ 12022.5, subd. (a)). It was further alleged that Mack
had a prior strike conviction for assault with a deadly weapon
(§§ 245, subd. (a)(1), 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
A jury found Mack guilty as charged. On appeal, our
Division reversed the convictions of kidnapping to commit
robbery, but otherwise affirmed the judgment and remanded for
resentencing. (People v. Washington, supra, 127 Cal.App.4th at
p. 304.) On remand, the trial court sentenced Mack as a second
striker to a determinate term of 35 years four months in prison.
In October 2020, Mack requested a Franklin proceeding 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.” The court denied the
request, finding Mack was ineligible for a youth offender parole
hearing under section 3051, subdivision (h) because Mack was
sentenced pursuant to the Three Strikes law, and therefore not
entitled to a Franklin proceeding.
Mack appealed.
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DISCUSSION
Mack argues the court should have granted his request for
a Franklin proceeding to afford him the opportunity to preserve
evidence of the diminished culpability of his youth at the time of
the bank robbery and subsequent maturity for the Board of
Parole Hearings (the Board) to consider when he becomes eligible
for parole. We disagree.
In response to a series of decisions addressing the Eighth
Amendment to the United States Constitution’s limits on
sentencing juveniles to life imprisonment and developments in
neuroscience that recognized children’s lack of maturity and
underdeveloped sense of responsibility, our Legislature enacted
sections 3051 and 4801, subdivision (c). (Franklin, supra, 63
Cal.4th at pp. 276–277; see Graham v. Florida (2010) 560 U.S.
48, 69–70; Miller v. Alabama (2012) 567 U.S. 460, 465; People v.
Caballero (2012) 55 Cal.4th 262, 268.) Section 3051, subdivisions
(a)(2)(B) and (b)(1) to (4) provides certain youth offenders serving
life sentences or their functional equivalent with a meaningful
opportunity for release in their 15th, 20th, or 25th year of
incarceration through the youth offender parole hearing process.
(Franklin, at p. 277.) To be eligible for the youth offender parole
hearing process, the youth offender must have committed the
controlling offense when the youth offender was 25 years old or
younger. (§ 3051, subds. (a)(1), (b)(1).) Section 3051, subdivision
(h) expressly excludes from the youth offender parole hearing
process certain categories of youth offenders, including those
“sentenced to life in prison without the possibility of parole for a
controlling offense that was committed after the person had
attained 18 years of age” and those sentenced under the “One
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Strike” law3 (§ 667.61) and the Three Strikes law (§§ 667,
1170.12).
After the enactment of sections 3051 and 4801,
subdivision (c), our Supreme Court decided Franklin, supra, 63
Cal.4th 261. Franklin, at page 284, gave a youth offender the
opportunity to preserve evidence that would be relevant at a
youth offender parole hearing so that the Board could properly
discharge its obligation under section 4801, subdivision (c) to give
great weight to youth-related factors.
Here, Mack concedes his ineligibility for a youth offender
parole hearing under section 3051, subdivision (h), but argues his
right to a Franklin proceeding is rooted in the plain language of
section 4801, subdivision (c) which, irrespective of his eligibility
for a youth offender parole hearing, requires the Board to give
great weight to mitigating youth-related evidence when a
prisoner becomes eligible for parole so long as he committed his
controlling offense when he was 25 years old or younger. (§ 3051,
subd. (a).) Mack’s argument is meritless.
In this case, a Franklin proceeding would serve no purpose.
As Mack concedes, he is ineligible for parole as a youth offender
under section 3051, subdivision (h) because he was sentenced as
a second striker. Indeed, Mack is serving a determinate sentence
and thus will be released upon completion of a fixed term,
reduced by good time and work time credits under section 2933.
3 There is currently a split in authority whether section
3051, subdivision (h)’s exclusion of youth offenders sentenced
under the One Strike law violates equal protection. (Compare
People v. Miranda (2021) 62 Cal.App.5th 162, 186, review
granted June 16, 2021, S268384, with People v. Edwards (2019)
34 Cal.App.5th 183, 199.)
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(§ 3000, subd. (b)(2).) Though Mack’s ineligibility for a youth
offender parole hearing may not negate section 4801, subdivision
(c)’s mandate that the Board give great weight to mitigating
youth-related evidence, he must still establish that he is eligible
for a parole hearing where that evidence would be relevant. (See
In re Brownlee (2020) 50 Cal.App.5th 720, 725.) Mack does not
claim or establish that there is any process for a parole hearing
prior to the date established by his determinate sentence.
Because a Franklin proceeding is meant to give offenders the
opportunity to preserve evidence of mitigating youth-related
evidence to present to the Board at a parole hearing, eligibility
for an early parole hearing is prerequisite to a Franklin
proceeding. (See In re Cook (2019) 7 Cal.5th 439, 451 [“an
offender entitled to a hearing under sections 3051 and 4801 may
seek the remedy of a Franklin proceeding”]; see also People v.
Moore (2021) 68 Cal.App.5th 856, 861 [rejecting defendant’s
equal protection challenge to section 3051, subdivision (h) and
affirming trial court’s denial of a request for Franklin proceeding
because defendant was sentenced under the Three Strikes law].)
The court properly denied Mack’s request for a Franklin
proceeding.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
WINDHAM, J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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