Filed 4/29/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059650
v. (Super. Ct. No. 94NF2484)
MIGUEL DELGADO, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Cheri T. Pham, Judge. Reversed and remanded with directions.
Benjamin Kington, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
We find ourselves in the unfamiliar position of choosing to publish an
opinion regarding an issue the parties are in agreement on. Having no prior experience
with this scenario, we feel the need to explain that we publish because the issue
implicates evolving precedent that has greatly altered our perception of past legislation,
and we hope by writing on this change to be able to head off a multitude of briefs before
they reach the trial courts.
Following a series of United States Supreme Court decisions affording
juvenile offenders greater sentencing protections under the Eighth Amendment, the
California Legislature enacted a statutory scheme granting early parole consideration for
most youthful offenders. The California Supreme Court has since ruled those offenders
are entitled to make a record related to their future parole consideration in a special type
of hearing that has come to be known as a Franklin proceeding. (See People v. Franklin
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(2016) 63 Cal.4th 261 (Franklin).) The issue in our case is whether youthful offenders
who are statutorily ineligible for early parole consideration are nevertheless entitled to a
Franklin proceeding to preserve evidence for their eventual parole hearing. With all
parties here in agreement, we answer that question in the affirmative, we reverse the trial
court’s order denying appellant’s request for a Franklin proceeding, and remand the
matter for such a proceeding.
FACTUAL AND PROCEDURAL BACKGROUND
During his early 20’s, appellant was involved in three separate criminal
incidents. The first occurred in 1994, when the police found a loaded handgun in the
trunk of his car during a traffic stop. The second and third incidents involved armed
home-invasion robberies appellant and his cohorts committed four months apart in 1995.
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“Franklin processes are more properly called ‘proceedings’ rather than ‘hearings.’ A hearing
generally involves definitive issues of law or fact to be determined with a decision rendered based on that
determination. [Citations.] A proceeding is a broader term describing the form or manner of conducting judicial
business before a court. [Citations.] While a judicial officer presides over a Franklin proceeding and regulates its
conduct, the officer is not called upon to make findings of fact or render any final determination at the proceeding’s
conclusion.” (In re Cook (2019) 7 Cal.5th 439, 449, fn. 3.)
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During the robberies, appellant and his confederates kidnapped, assaulted, and threatened
to kill several of their victims.
As a result of those incidents, appellant was convicted of kidnapping for
robbery and multiple counts of robbery, burglary, false imprisonment and illegal gun
possession. He was also found to have personally used a firearm during the offenses and
suffered a prior strike conviction. The trial court sentenced him to 59 years to life in
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prison under the “Three Strikes” law. (See Pen. Code, §§ 667, subds. (b)-(j), 1170.12.)
In 2020, appellant requested a Franklin proceeding to present mitigation
evidence in anticipation of his youth offender parole hearing (YOPH). However, the trial
court correctly determined appellant was not eligible for a YOPH because he was
sentenced under the Three Strikes law. Therefore, it denied his request for a Franklin
proceeding. This appeal followed.
DISCUSSION
Appellant admits he is statutorily ineligible for a YOPH because he was
sentenced under the Three Strikes law. However, he contends he is entitled to a YOPH –
and a concomitant Franklin proceeding – as a matter of equal protection. Although we
reject appellant’s equal protection argument, both parties now conclude he is entitled to a
Franklin proceeding under the standard rules applicable to all parole hearings. We agree.
Legal Framework
Over the past two decades, the United States Supreme Court has redefined
the parameters of juvenile sentencing. In Roper v. Simmons (2005) 543 U.S. 551, the
court held the Eighth Amendment proscribes capital punishment for minors. Then, in
Graham v. Florida (2010) 560 U.S. 48, the court found it cruel and unusual to sentence
juvenile nonhomicide offenders to life in prison without parole (LWOP). The high court
followed that decision with Miller v. Alabama (2012) 567 U.S. 460, which prohibits
2
All further statutory references are to the Penal Code.
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mandatory LWOP for juvenile homicide offenders. (See also People v. Caballero (2012)
55 Cal.4th 262 [barring de facto LWOP sentences for juvenile nonhomicide offenders].)
The underlying rationale of these decisions is that “[b]ecause juveniles have
diminished culpability and greater prospects for reform,” as compared to adult offenders,
“‘they are less deserving of the most severe punishments.’ [Citation.]” (Miller v.
Alabama, supra, 567 U.S. at p. 471.) Consequently, except in the rarest of circumstances
– not presented here – juvenile offenders facing life-long prison terms must be given a
meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society at
some point in the future. (People v. Caballero, supra, 55 Cal.4th at p. 268.)
To that end, the Legislature enacted section 3051, which authorizes a
YOPH for defendants who were 25 years of age or younger at the time of their
controlling offense, i.e., the crime for which they received the longest term of
imprisonment. (§ 3051, subd. (a).) For youthful offenders such as appellant, who were
sentenced to an indeterminate term of 25 years to life or greater, the statute calls for a
YOPH during the 25th year of their incarceration. (Id., subd. (b)(3).) However, per its
terms, section 3051 does not apply if the defendant was convicted under the Three Strikes
law (pertaining to repeat offenders) or the “One Strike” law (pertaining to certain sexual
offenders), or if he was sentenced to LWOP for an offense committed after he reached
the age of 18. (Id., subd. (h).)
In Franklin, the California Supreme Court discussed the import of section
3051 when it applies. As the court pointed out, the statute contemplates the parole board
will consider “youth-related factors, such as [the juvenile offender’s] cognitive ability,
character, and social and family background at the time of [his] offense,” in determining
his suitability for parole. (Franklin, supra, 63 Cal.4th at p. 269.) Therefore, “section
3051, subdivision (f)(2) provides that ‘[f]amily members, friends, school personnel, faith
leaders, and representatives from community-based organizations with knowledge about
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the individual before the crime . . . may submit statements for review by the board.’” (Id.
at p. 283.)
Franklin further stated, “Assembling such statements ‘about the individual
before the crime’ is typically a task more easily done 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.”
(Franklin, supra, 63 Cal.4th at pp. 283-284.) In addition, the parole board must consider
any “‘psychological evaluations and risk assessment instruments’” that may be relevant
to show “‘any subsequent growth and increased maturity of the individual.’” (Id. at p.
284, quoting § 3051, subd. (f)(1).) Our Supreme Court found this “implies the
availability of information about the offender when he was a juvenile.” (Ibid., italics
added.)
The record in Franklin was unclear whether the juvenile in that case had
been given a sufficient opportunity at sentencing to make a record that included this sort
of information. (Franklin, supra, 63 Cal.4th at p. 284.) Accordingly, the Supreme Court
remanded the case to allow the trial court to make this determination. (Ibid.) In so doing,
the court also instructed that if the trial court determined the juvenile had not been
afforded a sufficient opportunity to make a record, he should be allowed to present “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 that demonstrates the juvenile offender’s culpability or cognitive
maturity, or otherwise bears on the influence of youth-related factors.” (Ibid.) Writing
separately, Justice Werdegar described this as a “‘baseline hearing’” relevant to the
juvenile’s future parole prospects. (Id. at p. 287 conc. & dis. opn. of Werdegar, J.).)
Since Franklin, the California Supreme Court has decided its holding
applies retroactively to all eligible youthful offenders regardless of when they suffered
their conviction. (In re Cook, supra, 7 Cal.5th at p. 450.) Therefore, the fact appellant
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did not request a Franklin proceeding until after the judgment against him was already
final has no bearing on his entitlement to relief. (Id. at p. 452.)
Equal Protection Claim
Appellant’s equal protection argument is grounded in the fact he was 23
and 24 years old at the time he committed his offenses. As we have explained, when a
defendant is sentenced for crimes he committed when he was under the age of 25, he is
typically entitled to early parole consideration in the form of a YOPH no later than the
25th year of his incarceration. (§ 3051, subds. (a)-(b).) But youthful offenders like
appellant, who were sentenced under the Three Strikes law, are not eligible for such a
hearing. (Id., subd. (h).)
To succeed on his claim this statutory framework violates equal protection,
appellant must first show he is similarly situated to other defendants who receive more
favorable treatment under section 3051. (People v. Morales (2016) 63 Cal.4th 399, 408.)
In other words, appellant must show he is similar to youthful offenders who have not
suffered any prior strike convictions. However, the law is well established that
defendants with prior strikes are not comparable to such offenders for equal protection
purposes. (People v. Wilkes (2020) 46 Cal.App.5th 1159, 1165-1166.) This dooms
appellant’s claim from the outset. (Ibid.)
But even if we assumed youthful offenders with prior strikes were similarly
situated to youthful offenders without prior strikes, “the Legislature could rationally
determine that the former – ‘a recidivist who has engaged in significant antisocial
behavior and who has not benefited from the intervention of the criminal justice system’
[citation] – presents too great a risk of recidivism to allow the possibility of early parole.”
(People v. Wilkes, supra, 46 Cal.App.5th at p. 1166.) Therefore, “the differential
treatment of youth offenders sentenced pursuant to the Three Strikes Law for purposes of
youth offender parole hearings does not violate equal protection.” (Id. at p. 1167; accord,
People v. Moore (2021) 68 Cal.App.5th 856 [excluding Three Strike defendants from
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youth offender parole consideration is a rational approach to addressing the problem of
recidivism].)
In arguing otherwise, appellant points out that some youthful offenders who
are excluded from early parole consideration under section 3051 have successfully
challenged their exclusion on equal protection grounds. For example, in People v.
Edwards (2019) 34 Cal.App.5th 183 (Edwards), the court ruled section 3051’s exclusion
of youthful sex offenders who are convicted under the One Strike law was irrational for
equal protection purposes because the statute does not similarly exclude youthful
offenders who are convicted of the more serious crime of first degree murder. (Id. at pp.
196-197.)
However, in Edwards, the court was comparing first-time offenders to first-
time offenders. “‘The distinguishing characteristic of Three Strikes offenders, of course,
is that they are not being sentenced for a first-time offense. Thus, the ample authority
rejecting equal protection challenges from Three Strikes offenders did not apply in
Edwards. Indeed, Edwards itself took pains to “note that criminal history plays no role in
defining a One Strike crime” and that “[t]he problem in this case is” the categorical
exclusion of “an entire class of youthful offenders convicted of a crime short of homicide
. . ., regardless of criminal history . . . .” [Citation.]’ [Citation.]” (People v. Moore,
supra, 68 Cal.App.5th at p. 864.)
In contrast, appellant’s exclusion from early parole consideration is directly
attributable to his criminal history and the fact he failed to reform after suffering his first
strike conviction. This failure both distinguishes him from first-time offenders and
renders his exclusion rational for purposes of equal protection. Therefore, he is not
entitled to a YOPH and a concomitant Franklin proceeding as a matter of equal
protection.
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Section 4801
But there is another legal basis for granting appellant a Franklin
proceeding. As respondent concedes, that entitlement lies in subdivision (c) of section
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4801, which was enacted in conjunction with 3051.
Like section 3051, section 4801, subdivision (c) was enacted in 2014 as
part of the Legislature’s effort to bring California law into conformity with Supreme
Court precedent respecting juvenile sentencing. (Franklin, supra, 63 Cal.4th at pp. 268,
276.) That subdivision provides, “When a prisoner committed his or her controlling
offense, as defined in subdivision (a) of Section 3051, when he or she was 25 years of
age or younger, the board, in reviewing a prisoner’s suitability for parole pursuant to
Section 3041.5, 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 3041.5 sets forth the procedures governing parole hearings and
applies generally to “all [such] hearings.” (§ 3041.5, subd. (a).) It is apparent from the
Legislature’s reference to that statute that it intended the criteria set forth in section 4801,
subdivision (c) to apply broadly to all parole hearings, not just YOPHs. (People v.
Howard (2021) 74 Cal.App.5th 141, 147; In re Brownlee (2020) 50 Cal.App.5th 720,
725.) Consequently, even though appellant is not entitled to a YOPH, the parole board
will still – someday – have to consider his diminished capacity and subsequent
maturation in assessing his suitability for parole. (Ibid.)
Those are the same factors the board must consider in conducting a YOPH
under section 3051. Given their importance at appellant’s parole hearing, it follows from
3
After initial briefing in this case was complete, we solicited and received supplemental briefing
from the parties on the potential applicability of section 4801, subdivision (c) to appellant’s request for a Franklin
proceeding.
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Franklin that he should be given the opportunity to make a record of those factors. Now.
In fact, respondent admirably concedes that because section 4801, subdivision (c)
requires the parole board to consider youth-related factors during parole hearings for
youthful offenders, Franklin proceedings should be provided to appellant and all other
defendants who are statutorily ineligible for a YOPH under section 3051.
We accept this concession as a logical extension of the Franklin decision.
Because appellant was sentenced before section 4801, subdivision (c) was enacted, he is
entitled to a limited remand to make a record of youth-related factors for his future parole
hearing under section 3041.5. At that proceeding, the presentation of evidence shall
proceed with an eye to providing a meaningful baseline of appellant’s characteristics and
circumstances so the parole board can someday judge the extent to which he has matured
and rehabilitated himself while in custody. In that regard, only such evidence as
meaningfully adds to the existing record shall be permitted. (In re Cook, supra, 7 Cal.5th
at p. 459; People v. Howard, supra, 74 Cal.App.5th at p. 153.)
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DISPOSITION
The trial court’s order denying appellant’s request for a Franklin
proceeding is reversed and the matter is remanded for such a proceeding.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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