People v. Ngo CA4/2

Filed 3/10/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E078723

v. (Super.Ct.No. FCH04170)

MY NGO, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,

Judge. Affirmed.

Kimberly J. Grove and Leslie Ann Rose, 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 and Charles C. Ragland, Senior Assistant Attorneys General,

and Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff

and Respondent.

Defendant My Ngo was a “shotcaller” in a Vietnamese gang. (People v. Ngo

(June 7, 2006, E036143) 2006 Cal. App. Unpub. LEXIS 4911 at pp. *22-23 [nonpub.

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opn.].) In 2000, when he was 19, he committed murder for hire; for $2,000, he shot the

victim in the head. (Id. at pp. *2, *11, *13, *18, *25.)

In 2021, he filed a motion for a “Franklin hearing.” (Italics added.) As we will

discuss, a Franklin hearing allows a juvenile offender 1 to preserve evidence of youth-

related mitigating factors for purposes of a youthful offender parole hearing to be held in

the future pursuant to Penal Code section 3051. 2 (See People v. Franklin (2016) 63

Cal.4th 261 (Franklin).) Under section 3051, juvenile offenders and most youthful

offenders are entitled to a youthful offender parole hearing; however, youthful offenders

sentenced to life without parole (LWOP) are not. As defendant was a youthful offender

sentenced to LWOP, the trial court ruled that he was not entitled to a Franklin hearing.

Defendant contends that section 3051’s distinction between youthful offenders

with LWOP and non-LWOP sentences violates equal protection. Alternatively, he

contends that he should have been granted a hearing to preserve evidence of youth-

related mitigating factors for other purposes, such as a hypothetical future resentencing

under section 1172.1. We disagree with both contentions. Hence, we will affirm.

1 We will use “juvenile offender” to mean a person convicted of a crime
committed when he or she was under 18. We will use “youthful offender” to mean a
person convicted of a crime committed when he or she was between 18 and 25.
2 Further statutory citations are to the Penal Code, unless otherwise indicated.

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 I

STATEMENT OF THE CASE

In 2004, defendant was found guilty of first degree murder (§§ 187, subd. (a), 189,

subd. (a)), with a financial gain special circumstance (§ 190.2, subd. (a)(1)) and with an

enhancement for personally and intentionally discharging a firearm, causing death

(§ 12022.53, subd. (d)); and unlawful possession of a firearm (former § 12021, subd.

(a)(1); see now § 29800, subd. (a)(1)). He admitted one “strike” prior. (§§ 667, subds.

(b)-(i), 1170.12.) He was sentenced to LWOP for the special circumstances murder, plus

25 years to life for the enhancement; all other terms were either stayed or run

concurrently.

In 2021, defendant, in pro. per., filed a motion for a hearing “to present evidence

of mitigating factors . . . that was not introduced . . . at the time of sentencing,”

purportedly on the authority of Franklin. He argued that such a hearing was necessary to

preserve evidence “for future . . . (A) commutation reviews, (B) P.C. 1170(d)(1)

resentencing, (C) recommendations for reduce[d] sentences, (D) youth offender

considerations, (E) changes of laws in regards to mitigating factors, (F) youth offender

parole hearings, and other future law changes.”

The trial court appointed counsel for defendant. At the hearing on the motion,

defense counsel submitted without argument. The trial court denied the motion; it ruled

that defendant was “ineligible for . . . Franklin relief” (italics added) because he “was 19

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years old at the time the offense was committed” and “was sentenced to life without the

possibility of parole.”

II

LEGAL BACKGROUND

In Graham v. Florida (2010) 560 U.S. 48 (Graham), the United States Supreme

Court held that “for a juvenile offender who did not commit homicide the Eighth

Amendment forbids the sentence of life without parole.” (Id. at p. 74.) It reasoned, in

part, that “because juveniles have lessened culpability they are less deserving of the most

severe punishments. [Citation.] As compared to adults, juveniles have a ‘“lack of

maturity and an underdeveloped sense of responsibility”’; they ‘are more vulnerable or

susceptible to negative influences and outside pressures, including peer pressure’; and

their characters are ‘not as well formed.’ [Citation.] These salient characteristics mean

that ‘[i]t is difficult even for expert psychologists to differentiate between the juvenile

offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile

offender whose crime reflects irreparable corruption.’ [Citation.]” (Id. at p. 68.)

In Miller v. Alabama (2012) 567 U.S. 460 (Miller), the Supreme Court extended

Graham by holding that the Eighth Amendment prohibits a mandatory LWOP sentence

for a juvenile offender, even for homicide. (Id. at pp. 465, 479.) It explained, in part,

that “a sentencer [must] have the ability to consider the ‘mitigating qualities of youth.’

[Citation.]” (Id. at p. 476.)

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 In People v. Caballero (2012) 55 Cal.4th 262 (Caballero), our Supreme Court

extended Graham and Miller still further. It held that sentencing a juvenile offender to a

de facto life term for a nonhomicide offense constitutes cruel and unusual punishment.

(Id. at p. 268.)

Caballero added: “We urge the Legislature to enact legislation establishing a

parole eligibility mechanism that provides a defendant serving a de facto life sentence

without possibility of parole for nonhomicide crimes that he or she committed as a

juvenile with the opportunity to obtain release on a showing of rehabilitation and

maturity.” (Caballero, supra, 55 Cal.4th at p. 269, fn. 5; see also id. at p. 273 [conc. opn.

of Werdegar, J.].)

In 2013, in response to Caballero, the Legislature enacted section 3051. (Former

§ 3051, Stats. 2013, ch. 312, § 4.) Its stated purpose 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 when he or she has shown that he or she

has been rehabilitated and gained maturity,” in accordance with, inter alia, Miller. (Stats.

2013, ch. 312, § 1.)

As originally enacted, it applied only to juvenile offenders. (Former § 3051,

subds. (a)(1), (b), Stats. 2013, ch. 312, § 4.) Like the current statute, it excluded

offenders sentenced to LWOP. (Former § 3051, subds. (b), (h), Stats. 2013, ch. 312, § 4.)

In 2015, however, it was amended so as to also apply to youthful offenders under 23.

(Former § 3051, subds. (a)(1), (b), Stats. 2015, ch. 471, § 1.) In 2017, it was amended

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again so as to also apply to youthful offenders 25 or younger. (§ 3051, subds. (a)(1), (b),

Stats. 2017, ch. 675, § 1.)

It defines “controlling offense” as “the offense or enhancement for which any

sentencing court imposed the longest term of imprisonment.” (§ 3051, subd. (a)(2)(B).)

It then provides, as relevant here: “A person who was convicted of a controlling offense

that was committed when the person was 25 years of age or younger . . . shall be eligible

for release on parole at a youth offender parole hearing . . . .” (§ 3051, subds. (b)(1),

(b)(2), (b)(3), (b)(4).) However, it excludes youthful offenders who were convicted of a

controlling offense for which the sentence is LWOP. (§ 3051, subds. (b), (h).)

In Franklin, the defendant argued that a sentence of 50 years to life for a crime

that he committed when he was 16 was the functional equivalent of an LWOP sentence

and therefore violated Miller. (Franklin, supra, 63 Cal.4th at pp. 268, 273.)

Our Supreme Court, however, held that the argument was moot in light of the

enactment of sections 3051 and 4801. (Franklin, supra, 63 Cal.4th at pp. 268, 276-277.)

Section 4801 requires the Board of Parole Hearings (Board), in evaluating a juvenile or

youthful offender, to “give great weight to the diminished culpability of youth as

compared to adults, the hallmark features of youth, and any subsequent growth and

increased maturity of the prisoner . . . .” (§ 4801, subd. (c).)

The defendant argued, however, that “the Board will not be able to give great

weight to these characteristics at a youth offender parole hearing because ‘there would be

no reliable way to measure his cognitive abilities, maturity, and other youth factors when

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the offense was committed 25 years prior.’” (Franklin, supra, 63 Cal.4th at p. 282.) The

Supreme Court therefore further held that he was entitled to a limited remand for a

hearing on “whether he was given adequate opportunity at sentencing to make a record of

mitigating evidence tied to his youth.” (Id. at p. 269.)

It added, “If the trial court determines that Franklin did not have sufficient

opportunity, then . . . Franklin may place on the record any [evidence] 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. The goal

of any such proceeding is to provide an opportunity for the parties to make an accurate

record of the juvenile offender’s characteristics and circumstances at the time of the

offense so that the Board, years later, may properly discharge its obligation to ‘give great

weight to’ youth-related factors [citation] . . . .” (Franklin, supra, 63 Cal.4th at p. 284.)

III

EQUAL PROTECTION

In supplemental briefing, defendant contends that section 3051 violates equal

protection, because it denies a youth offender parole hearing to youthful offenders

sentenced to LWOP while granting one to all other youthful offenders, including those

sentenced to 25 years to life. 3

3 We ordered supplemental briefing on the following issue: “Is defendant
entitled to a Franklin hearing . . . because Penal Code section 3051, subdivisions (b) and
[footnote continued on next page]

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 Defendant did not raise this contention either below or in his opening brief. The

People therefore contend that he forfeited it. At both times, however — as we will

discuss in more detail below — appellate opinions were unanimous that the challenged

distinction did not violate equal protection. Thus, this contention would have appeared

futile; this is an exception to forfeiture rules. (See People v. Perez (2020) 9 Cal.5th 1, 7-

8.) Moreover, it presents a pure question of law on undisputed facts, such as we have

discretion to address for the first time on appeal. (See People v. Heard (2022) 83

Cal.App.5th 608, 626 [equal protection].)

When no suspect class and no fundamental right is implicated, “[i]n order to

decide whether a statutory distinction . . . is unconstitutional as a matter of equal

protection, we typically ask two questions. We first ask whether the state adopted a

classification affecting two or more groups that are similarly situated in an unequal

manner. [Citation.] If we deem the groups at issue similarly situated in all material

respects, we consider whether the challenged classification ultimately bears a rational

relationship to a legitimate state purpose. [Citation.] A classification in a statute is

presumed rational until the challenger shows that no rational basis for the unequal

treatment is reasonably conceivable. [Citations.] The underlying rationale for a statutory

(h), making him ineligible for a youthful offender parole hearing, violate equal
protection?”

In response, the only distinction that defendant challenges is as between youthful
offenders with LWOP and non-LWOP sentences. We deem him to have forfeited any
challenge to any other distinction made by section 3051.

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classification need not have been ‘ever actually articulated”’ by lawmakers, and it does

not need to ‘be empirically substantiated.’ [Citation.] Nor does the logic behind a

potential justification need to be persuasive or sensible — rather than simply rational.

[Citation.]” (People v. Chatman (2018) 4 Cal.5th 277, 289.)

These two questions are not wholly independent. If there is a rational basis for the

unequal treatment, then in that respect, the two classes are not similarly situated.

Conversely, if the two classes are not similarly situated, that, in itself, is a rational basis

for unequal treatment. The federal courts collapse the two questions into just one:

Whether there is a rational basis for the unequal treatment. (Armour v. City of

Indianapolis, Ind. (2012) 566 U.S. 673, 680.) Nevertheless, out of obedience to the

California Supreme Court, we treat these as two separate questions. However, we

assume, without deciding, that the two classes are similarly situated.

Even if so, there are several rational bases for the unequal treatment.

For one thing, section 3051 was enacted in response to Caballero. In Caballero,

the Supreme Court called for “legislation establishing a parole eligibility mechanism that

provides a defendant serving a de facto life sentence without possibility of parole for

nonhomicide crimes that he or she committed as a juvenile with the opportunity to obtain

release on a showing of rehabilitation and maturity.” (Caballero, supra, 55 Cal.4th at

p. 269, fn. 5, italics added.) It did not call for such a mechanism for any defendants —

whether juvenile, youthful, or otherwise — serving a de jure LWOP sentence. The

Legislature could rationally limit its response accordingly.

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 For another, section 3051 provides for a youthful offender parole hearing. A

youthful offender sentenced to LWOP is not entitled to parole at all. Just like all other

adult offenders convicted of murder with special circumstances, a youthful offender

convicted of murder with special circumstances must actually spend the rest of his or her

life in prison.

If any further justification is needed, we find it in the difference in culpability. A

person guilty of murder with special circumstances is the worst of the worst. This is the

most heinous crime known to our Penal Code, and one of the few crimes subject to the

death penalty in California. (§ 190; see also §§ 37 [treason], 128 [procuring execution of

innocent person by perjury], 219 [train wrecking causing death].) In Graham, the

Supreme Court held that “for a juvenile offender who did not commit homicide the Eighth

Amendment forbids the sentence of life without parole.” (Graham, supra, 560 U.S. at

p. 74, italics added.) It recognized that murder is different: “Although an offense like

robbery or rape is ‘a serious crime deserving serious punishment,’ [citation], those crimes

differ from homicide crimes in a moral sense.” (Id. at p. 69.) Thus, in a homicide case, it

allowed a life without parole sentence for a juvenile offender, as “a risk to society for the

rest of his life,” despite its concern in nonhomicide cases about the difficulty of

determining whether a juvenile is incorrigible. (See id. at pp. 72-73.)

Likewise, first degree murder with a special circumstance differs from ordinary

first degree murder in a moral sense. “‘It is the prerogative, indeed the duty, of the

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Legislature to recognize degrees of culpability when drafting a Penal Code.’ [Citation.]”

(People v. Wilkinson (2004) 33 Cal.4th 821, 840.)

For these reasons, a long line of cases have rejected the equal protection claim

defendant makes here: People v. Sands (2021) 70 Cal.App.5th 193, 204-205 [First Dist.,

Div. Five]; People v. Morales (2021) 67 Cal.App.5th 326, 347-349 [First Dist., Div.

Four]; People v. Jackson (2021) 61 Cal.App.5th 189, 199-200 [Fourth Dist., Div. One];

People v. Acosta (2021) 60 Cal.App.5th 769, 780-781 [Fourth Dist., Div. Three]; In re

Williams (2020) 57 Cal.App.5th 427, 433-436 [Second Dist., Div. Five].

Until recently, the only dissenting voice was that of Justice Pollak. (In re Jones

(2019) 42 Cal.App.5th 477, 483-488 [conc. opn. of Pollak, J.] [First Dist., Div. Four].)

Moreover, he merely mused that section 3051 “does not necessarily withstand scrutiny”

(id. at p. 483; see also id. at p. 486, italics added) and acknowledged that the issue was

not actually before the court. (Id. at pp. 483-484.)

Recently, however, one court broke ranks. People v. Hardin (2022) 84

Cal.App.5th 273 [Second Dist., Div. Seven], pet. for rev. filed Nov. 28, 2022 (Hardin),

held that section 3051’s distinction between youthful offenders with LWOP and non-

LWOP sentences does violate equal protection.

In the “similarly situated” portion of the inquiry, it reasoned that “[s]ection 3051 is

decidedly not a sentencing statute. As amended in 2017 to expand its reach to young

adult offenders under the age of 26, its purpose was not to assess culpability or measure

the appropriate level of punishment for various crimes, but ‘to account for neuroscience

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research that the human brain — especially those portions responsible for judgment and

decisionmaking — continues to develop into a person’s mid-20’s. [Citations.]” (Hardin,

supra, 84 Cal.App.5th at p. 287.) It concluded, “Viewed in light of section 3051’s

intended purpose of permitting a determination whether a person who committed a

serious or violent crime between the age of 18 and 25 has sufficiently matured and

outgrown the youthful impulses that led to the commission of the offense, an individual

serving a parole-eligible life sentence and a person who committed an offense at the same

age serving a sentence of life without parole are similarly situated.” (Ibid.)

In the “rational basis” portion of the inquiry, it concluded that “if, as the

Legislature stated, the goal of section 3051 was to apply the Miller youth-related

mitigating factors to young adults up to the age of 26 in light of neuroscience research

that demonstrated the human brain continues to develop into a person’s mid-20’s, and

thus to permit youth offenders a meaningful opportunity for parole if they demonstrate

increased maturity and impulse control, then for that purpose there is no plausible basis

for distinguishing between same-age offenders based solely on the crime they committed.

[Citation.]” (Hardin, supra, 84 Cal.App.5th at p. 288, italics added.)

Actually, section 3051 is, in part, a sentencing statute. It does not make all

youthful offenders eligible for parole at the same point in their incarceration. Rather, a

youthful offender sentenced to a determinate term becomes eligible for parole in his or

her 15th year of imprisonment (§ 3051, subd. (b)(1)); a youthful offender sentenced to an

indeterminate term of less than 25 years to life becomes eligible for parole in his or her

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20th year of imprisonment (§ 3051, subd. (b)(2)); and a youthful offender sentenced to an

indeterminate term of 25 years to life becomes eligible for parole in his or her 25th year

of imprisonment (§ 3051, subd. (b)(3)). This is true even though all three sets of youthful

offenders have been simultaneously maturing and outgrowing their youthful impulses.

Thus, cutting off the most culpable youthful offenders from parole entirely is not

inconsistent with the goals of section 3051.

Moreover, the “similarly situated” inquiry is intended to be limited. “‘This initial

inquiry is not whether persons are similarly situated for all purposes, but “whether they

are similarly situated for purposes of the law challenged.”’ [Citation.]” (People v.

Brown (2012) 54 Cal.4th 314, 328.) By contrast, the “rational basis” inquiry is not

limited to the purposes of the challenged law. (E.g., In re C.B. (2018) 6 Cal.5th 118, 134

[in setting a date cutoff for retention of DNA samples, “the voters rationally could

differentiate between those who have submitted samples and those who have not based

on cost considerations.”].) The Hardin court, however, looked at the rational basis for

the distinction strictly in terms of “the goal of section 3051.” (Hardin, supra, 84

Cal.App.5th at p. 288.) We concur with those courts that have sought and found a

rational basis for the challenged distinction in other sentencing considerations.

Finally, Hardin rejected “relative culpability” as a rational basis. It reasoned that

section 3051 makes youthful offenders with a de facto LWOP sentence eligible for

parole, but not youthful offenders with a de jure LWOP sentence: “The crime of a 20-

year-old offender who shot and killed his victim while attempting to commit robbery and

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was sentenced to life without parole [citation] cannot rationally be considered more

severe than those of a 20-year-old who shot and killed his victim one day, committed a

robbery the next, and was sentenced to an indeterminate term of 50 years to life

[citation], or who committed multiple violent crimes . . . and received a parole-eligible

indeterminate life term that far exceeded his or her life expectancy.” (Hardin, supra, 84

Cal.App.5th at p. 289.) Hardin recognized that “when addressing a problem, the

Legislature may choose to proceed incrementally. [Citations.]” (Id. at pp. 290-291.) It

concluded, however, that “there still must be some rational basis for the choices made.

[Citation.]” (Id. at p. 291.)

Equal protection, however, allows not only incremental regulation, but also

incomplete regulation. “‘[W]hen conducting rational basis review, we must accept any

gross generalizations and rough accommodations that the Legislature seems to have

made.’ [Citation.] ‘A classification is not arbitrary or irrational simply because there is

an “imperfect fit between means and ends”’ [citation], or ‘because it may be “to some

extent both underinclusive and overinclusive”’ [citation]. Consequently, any plausible

reason for distinguishing between [two classes] need not exist in every scenario in which

the statutes might apply.” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 887,

italics added.) “‘[A] legislature need not run the risk of losing an entire remedial scheme

simply because it failed, through inadvertence or otherwise, to cover every evil that

might conceivably have been attacked.’ [Citation.]” (Kasler v. Lockyer (2000) 23

Cal.4th 472, 488, italics added.)

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 In any event, the Legislature could rationally distinguish between youthful

offenders with de jure and de facto LWOP sentences. A de jure LWOP sentence

provides a bright-line test. Moreover, using a special circumstance as a bright-line test of

culpability is well-established. By contrast, there is no established test of the culpability

of a youthful offender with a de facto LWOP sentence. Evidently Hardin viewed a de

facto LWOP sentence itself as an equivalent bright-line test, but the Legislature did not

have to; in light of the many combinations of circumstances that could result in a de facto

LWOP sentence, it could rationally leave the assessment of the culpability of such an

offender up to a future Board. A youthful offender with a de facto LWOP sentence is not

necessarily entitled to parole. He or she is merely entitled to a youthful offender parole

hearing. Thus, an offender who slips through the Legislature’s coarse special-

circumstances net may yet be caught in the Board’s finer mesh.

Caballero was not an equal protection case. It did not address the issue of whether

the Legislature could rationally distinguish between offenders with de jure and de facto

LWOP sentences. It was based on the Eighth Amendment; it merely held that the reasons

why a de jure LWOP sentence for a juvenile convicted of a nonhomicide offense

constitutes cruel and unusual punishment apply equally to a de facto LWOP sentence.

Accordingly, we hold that section 3051 does not violate equal protection merely

because it singles out youthful offenders sentenced to LWOP from all other youthful

offenders.

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 IV

A FRANKLIN HEARING FOR OTHER PURPOSES

Defendant also contends that he was entitled to a Franklin hearing for purposes

other than preserving evidence for a future youth offender parole hearing under section

3051.

Franklin was concerned exclusively with juvenile offenders who, as such, were

entitled to a youthful offender parole hearing. Here, however, defendant was sentenced

to LWOP for a crime that he committed when he was over 18. He is therefore

categorically ineligible for a youth offender parole hearing. (§ 3051, subds. (b), (h).) It

follows that there is no need for a Franklin hearing.

Franklin was a direct appeal from a conviction. In re Cook (2019) 7 Cal.5th 439

(Cook) extended the availability of a Franklin hearing to a juvenile offender whose

conviction and sentence have become final. Specifically, it held that “an offender

entitled to a [youth offender parole] hearing . . . may seek the remedy of a Franklin

proceeding even though the offender’s sentence is otherwise final.” (Id. at p. 451.)

The court acknowledged one obstacle — “‘“In most cases, after the judgment has

become final, there is nothing pending to which a motion may attach.’” [Citation.]”

(Cook, supra, 7 Cal.5th at p. 451.) It found the necessary statutory authority in section

1203.01, subdivision (a). (Id. at pp. 452-453.) That subdivision allows the prosecutor,

defense counsel, and the trial judge to file statements of their views regarding the

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defendant and the crime. (§ 1203.01, subd. (a).) The clerk must mail the statements to

prison officials. (Ibid.)

The court still faced one further obstacle — the wording of section 1203.01 does

not authorize a contested evidentiary hearing. Thus, the court additionally relied on Code

of Civil Procedure section 187 (Cook, supra, 7 Cal.5th at pp. 454-455), which provides,

“When jurisdiction is . . . conferred on a Court or judicial officer, all the means necessary

to carry it into effect are also given; and in the exercise of this jurisdiction, if the course

of proceeding be not specifically pointed out by this Code or the statute, any suitable

process or mode of proceeding may be adopted which may appear most conformable to

the spirit of this Code.” The court concluded, “Penal Code section 1203.01, augmented

by the court’s inherent authority to craft necessary procedures under Code of Civil

Procedure section 187, authorizes it to preserve evidence as promptly as possible for

future use by the Board.” (Id. at p. 455.)

Cook, too, was limited to offenders entitled to a youthful offender parole hearing.

For example, it emphasized “the significance of Franklin’s evidence preservation

function in the statutory scheme” (Cook, supra, 7 Cal.5th at p. 449) and “the role a

Franklin proceeding plays in the youth offender parole process.” (Id. at p. 450.) It said,

“‘[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.”

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(Ibid., italics omitted.) Finally, it stated its holding thus: “[W]e hold that an offender

entitled to a hearing under section[] 3051 . . . may seek the remedy of a Franklin

proceeding even though the offender’s sentence is otherwise final.” (Id. at p. 451, italics

added.)

There is no indication that Cook intended the hybrid section 1203.01/Code of Civil

Procedure section 187 procedure it had crafted to be available in any other context. Code

of Civil Procedure section 187, in particular, is phrased in terms of necessity. Given the

decision in Franklin, Cook found it necessary to extend a similar remedy to juvenile

offenders whose convictions were final. There is no such necessity here.

Defendant argues that he needs a Franklin hearing because he could “potentially”

be resentenced under section 1172.1. 4 That section allows a trial court to resentence a

defendant at any time on the recommendation of, among others, the Department of

Corrections and Rehabilitation, the Board, or the district attorney. (§ 1172.1, subd.

(a)(1).) The sentence the trial court imposed here, however, was the mandatory

minimum: LWOP for first degree murder with special circumstances (§ 190.2, subd. (a)),

plus a consecutive 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)).

All other terms were either stayed or run concurrently. Thus, the trial court would have

no discretion to resentence him to any lower sentence.

4 Section 1172.1 was originally enacted as section 1170.03. (Stats. 2021,
ch. 719, § 3.1.) Effective June 30, 2022, it was amended and renumbered. (Stats. 2022,
ch. 58, § 9.)

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 We recognize that, under section 1172.1, provided the district attorney concurs, a

trial court can — but is not required to — reduce a conviction to a lesser included

offense. (§ 1172.1, subd. (a)(3)(B).) Even if defendant’s conviction were reduced to

second degree murder, however, the sentence would still be mandatory — 15 years to

life. (§ 190, subd. (a).) Only if it were reduced to voluntary or involuntary manslaughter

would the trial court have any sentencing discretion, and thus any reason to consider

youth-related mitigating circumstances. (§ 193, subds. (a), (b).) 5

Defendant, a gang shot-caller, committed murder for hire in cold blood. The

likelihood that a future district attorney would recommend reducing his conviction to

manslaughter is infinitesimal. Even if this fantasy materialized, almost certainly the

district attorney would recommend a sentence and insist that defendant agree to it.

The bottom line is that the possibility that defendant will ever need additional

evidence relevant to resentencing is speculative, at best. In the Cook situation, provided a

youthful offender lives long enough, it is a certainty that he or she will become entitled to

a youth offender parole hearing. Here, by contrast, it is a near-certainty that defendant

will never become entitled to a hearing under section 1172.1. At a minimum, the

5 Section 1172.1 does not appear to authorize the trial court to reduce an
enhancement to a lesser included enhancement. However, even if the trial court reduced
the firearm enhancement here to an enhancement under section 12022.53 subdivision (b)
or (c), the sentence would still be mandatory — a consecutive 10 or 20 years,
respectively.

Only if the trial court reduced the crime to manslaughter (see § 12022.53, subd.
(a)) and/or reduced the firearm enhancement to an enhancement under section 12022.5,
subdivision (a) would it have any sentencing discretion on the enhancement.

19
likelihood that he will ever need to present youth-related mitigating evidence is

insufficient to justify forcing the court, counsel, and witnesses to expend scarce resources

to preserve evidence for a hearing that probably will never happen.

Defendant also argues that he needs a Franklin hearing because “section 3051 may

ultimately be amended” so as to make him eligible for a youth offender parole hearing.

This scenario is even more speculative than the previous one. Almost any statute could

be amended — or a new one enacted — so as to provide almost anything. As the People

aptly point out, “Under appellant’s reasoning, every defendant may be entitled to a

Franklin-type hearing, regardless of sentence or age . . . . That scenario would be

untenable . . . .”

We therefore conclude that the trial court properly denied defendant’s motion for a

Franklin hearing.

V

DISPOSITION

The order appealed from is affirmed.

CERTIFIED FOR PUBLICATION
RAMIREZ
P. J.
We concur:

McKINSTER
J.

MILLER
J.

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