Opinion
F081259
03-10-2022
THE PEOPLE, Plaintiff and Respondent, v. FEDERICO LUIS DELGADO, Defendant and Appellant.
Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. CF02903218 Arlan L. Harrell, Judge.
Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
In 2002, defendant Federico Luis Delgado was sentenced to 26 years 8 months for offenses he committed when he was 20 years old. This was a second-strike sentence under the "Three Strikes" law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)- (d).) In April 2020, defendant filed a motion under section 1203.01 for an opportunity to preserve mitigating youth-related evidence for use at a future parole hearing pursuant to the California Supreme Court decisions in People v. Franklin (2016) 63 Cal.4th 261 (Franklin) and In re Cook (2019) 7 Cal.5th 439 (Cook). As defendant was ineligible for a youth offender parole hearing under section 3051 as a second-strike offender, the trial court denied the motion.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Defendant concedes he is ineligible for a youth offender parole hearing under section 3051, and he does not challenge that exclusion. Defendant claims that despite his ineligibility for a youth offender parole hearing, section 4801, subdivision (c), directs the parole board to consider youth-related factors at any parole hearing for offenders who committed their controlling offense when they were 25 years old or younger. As such, youth-related evidence will be relevant at defendant's "eventual parole hearing," even if that hearing is not a youth offender parole hearing under section 3051. According to defendant, the trial court's refusal to permit him the opportunity to preserve youth-related evidence was error and violated his state and federal constitutional rights to equal protection under the law.
We reject these claims. Defendant has not established he is eligible for an early parole hearing of any type before completion of his determinate term and release. For this reason, defendant has not shown the trial court erred in precluding him from preserving youth-related evidence for use at a parole hearing or that he is similarly situated to defendants who are afforded procedures for evidence preservation under section 1203.01 by virtue of their eligibility for a future youth offender parole hearing.
DISCUSSION
I. Factual Background
On August 16, 2002, defendant pleaded guilty to one count of carjacking and two counts of second degree robbery; defendant also admitted to the firearm enhancement under section 12022.53, subdivision (b), alleged as to each count, and he admitted a prior serious or violent felony conviction.
Pursuant to the parties' plea agreement, the trial court imposed a determinate term of 26 years 8 months as follows: the low term of three years, doubled to six years under the Three Strikes law, for carjacking (§ 215), five years four months (one-third the midterm of three years, doubled, plus one-third of the 10-year firearm conviction) for each robbery count (§ 211); and 10 years for the firearm enhancement (§ 12022.53) as to the carjacking conviction.
On April 20, 2020, defendant filed a motion under section 1203.01 to supplement the record with mitigating evidence in accordance with Franklin and Cook.
On May 12, 2020, the court issued a written order denying defendant's request for a hearing to preserve evidence relative to a youth offender parole hearing. The court noted that, having reviewed the California Department of Corrections and Rehabilitation (CDCR) Inmate Locator regarding defendant, CDCR "apparently believes defendant is eligible for a youthful offender parole hearing."
The court's order explained defendant is not eligible for a youth offender parole hearing under section 3051 because it does not apply to prisoners, such as defendant, who were sentenced under the Three Strikes law. Defendant filed an appeal of the trial court's order denying the Franklin hearing and argues he is entitled to an evidence preservation hearing under section 1203.01 regardless of his ineligibility for a youth offender parole hearing.
II. Legal Background: Youth Offender Parole Eligibility and Franklin Hearings
To address a number of decisions relating to the Eighth Amendment to the United States Constitution's limits on sentencing juveniles to life imprisonment, and developments in neuroscience showing children's lack of maturity and underdeveloped sense of responsibility, the Legislature enacted sections 3051 and 4801, subdivision (c). (Franklin, supra, 63 Cal.4th at pp. 276-277; Sen. Bill No. 260 (2013-2014 Reg. Sess.) Stats. 2013, ch. 312, §§ 4-5, pp. 5-7.) The Legislature's 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…." (Stats. 2013, ch. 312, § 1, pp. 2-3.) "At the heart of Senate Bill No. 260 was the addition of section 3051, which requires the [parole] Board to conduct a 'youth offender parole hearing'…." (Franklin, supra, at p. 277.)
Section 3051, subdivision (a)(1), which has been amended since its enactment to broaden the age range of eligible youth, currently provides that "any prisoner who was 25 years of age or younger … at the time of the controlling offense" shall receive "[a] youth offender parole hearing … for the purpose of reviewing the [prisoner's] parole suitability." This youth offender parole hearing is to be conducted during the 15th, 20th or 25th year of the youth offender's incarceration, depending on the offender's controlling offense, which is defined as the "offense or enhancement for which any sentencing court imposed the longest term of imprisonment." (Id., subd. (a)(2)(B).) Thus, for example, 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." (Id., subd. (b)(1).) Youth offenders are entitled to their initial youth offender parole hearing within six months of their youth parole eligibility date, as determined in section 3051, subdivision (b), unless previously released or entitled to an earlier parole consideration hearing pursuant to any other law. (Id., subd. (a)(2)(C).) Section 3051 excludes from youth offender parole hearing eligibility those defendants who were sentenced pursuant to the Three Strikes law. (Id., subd. (h); People v. Moore (2021) 68 Cal.App.5th 856, 863-864.)
In evaluating parole suitability, section 4801, subdivision (c) directs that "[w]hen 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 youth 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." Together, sections 3051 and 4801 set out the criteria for parole suitability for youth offenders and contemplate the parole board's decisionmaking at an eventual youth offender parole hearing will be informed by youth-related factors such as cognitive ability, character, and social and family background at the time of the offense. (Franklin, supra, 63 Cal.4th at p. 269.)
Section 3051, subdivision (a)(2)(B), defines "'[c]ontrolling offense'" as "the offense or enhancement for which any sentencing court imposed the longest term of imprisonment." Section 3041.5 describes various procedures attendant to parole hearings conducted by the parole board.
Section 3051 was enacted while the direct appeal in Franklin was pending. (Franklin, supra, 63 Cal.4th at p. 276.) In Franklin, the California Supreme Court upheld a juvenile offender's consecutive 25-year-to-life sentences, but remanded 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 under section 3051. (Franklin, supra, at pp. 279-280, 284.)
In 2019, the California Supreme Court considered "whether a sentenced prisoner whose conviction is final can seek the remedy of evidence presentation"-i.e., a so-called Franklin hearing-for future use at a youth offender parole hearing "and, if so, by what means." (Cook, supra, 7 Cal.5th at pp. 446-447.) The court held that the evidence preservation hearing authorized in Franklin was available by motion pursuant to section 1203.01 for youthful offenders whose sentences were final. (Cook, supra, at p. 447.) The court explained that the purpose of section 1203.01 parallels that of a Franklin proceeding, and the proper avenue for inmates who seek to preserve youth-related evidence following a final judgment is to file a motion under section 1203.01. (Cook, supra, at pp. 453, 458.) The court explained one prerequisite for obtaining a Franklin hearing under section 1203.01 is for the defendant to establish his entitlement to a youth offender parole hearing. (Cook, supra, at p. 458.)
Section 1203.01 allows a trial court to create a postjudgment record for the benefit of the CDCR, and is the method by which offenders may supplement the record with information relevant to an eventual youth offender parole hearing. (Cook, supra, 7 Cal.5th at pp. 453-454 [discussing the operation of § 1203.01 in the context of a Franklin hearing].)
III. Analysis
Defendant concedes he is not eligible for a youth offender parole hearing under section 3051 because he was sentenced under the Three Strikes law, and he does not challenge that exclusion. Defendant argues, however, that section 4801, subdivision (c), requires the parole board to consider mitigating youth-related factors in any type of parole hearing where the controlling offense was committed when the offender was 25 years old or younger, not just in the context of section 3051 youth offender parole hearings.
Since his offenses were committed when he was 20 years old, defendant claims he is entitled to develop and preserve youth-related evidence relevant under section 4801, subdivision (c), for consideration at his eventual parole hearing. Defendant claims the trial court erred by denying him an opportunity to preserve youth-related evidence at a Franklin hearing under section 1203.01.
Moreover, by precluding him from an opportunity to preserve youth-related evidence under section 1203.01, defendant claims the trial court violated the equal protection clauses of the state and federal Constitutions by creating an unequal distinction among similarly situated youthful offenders for purposes of parole consideration under section 4801, subdivision (c). In essence, defendant argues everyone who is eligible for youth-related factor consideration at a parole hearing under section 4801, subdivision (c), should be permitted to preserve youth-related evidence under section 1203.01; section 1203.01's evidence preservation procedures should not be limited to only those offenders eligible for a youth offender parole hearing.
Defendant's interrelated claims of error and violation of constitutional equal protection guarantees fail to get off the ground for the same basic reason: defendant has not established he is eligible for any type of early parole hearing. Though defendant's ineligibility for a youth offender parole hearing may not obviate section 4801, subdivision (c)'s mandate that the parole board give great weight to mitigating youth-related evidence at a different type of early parole hearing (see In re Brownlee (2020) 50 Cal.App.5th 720, 725 ["section 4801, subdivision (c) is not limited to youth offender parole hearings-it applies to all parole hearings"]), defendant must still establish he is eligible for some type of early parole hearing (see Cook, supra, 7 Cal.5th at p. 458 [motion under § 1203.01 "should establish the inmate's entitlement to a youth offender parole hearing and indicate when such hearing is anticipated to take place"]).
Here, defendant is sentenced to a fixed, determinate term of 26 years 8 months that may be reduced by good time and work time credits under sections 2931 and 2933. (See § 667, subd. (c)(5) [limiting credits for second- and third-strike defendants]; see also § 3000, subd. (b)(2) [providing for a parole period after expiration of a determinate term reduced by applicable credits and release from custody].) Had defendant been eligible for a youth offender parole hearing, he would have been entitled to such a hearing in his 15th year of incarceration-which CDCR had calculated as occurring in 2016. (§ 3051, subd. (b)(1).) Although defendant concedes he is not eligible for early youth offender parole consideration under section 3051 and, thus, an opportunity for early parole in his 15th year of incarceration, he nevertheless makes general reference to his eligibility for an eventual parole hearing. Yet, defendant has not identified or established his eligibility for any type of early parole hearing prior to the completion of his determinate term.Inasmuch as defendants who file a motion under section 1203.01 must establish their eligibility for early parole consideration under section 3051 (Cook, supra, 7 Cal.5th at p. 458), defendant too must establish his eligibility for some type of early parole consideration before a motion under section 1203.01 may be granted. Defendant cites no authority, and we are aware of none, that authorizes section 1203.01 procedures absent this showing. Without demonstrating early parole hearing eligibility of some type, defendant cannot establish he has a need to preserve youth-related evidence for the parole board to consider under section 4801, subdivision (c). As such, defendant has not established the trial court erred in denying him a Franklin-type hearing under section 1203.01. (See People v. Giordano (2007) 42 Cal.4th 644, 666 [on appeal, judgment is presumed correct and "'"[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown"'"].)
In November 2016, the California electorate approved Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57). This initiative added section 32 to article I of the California Constitution to provide, in relevant part, that "[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense." (Cal. Const., art. I, § 32, subd. (a)(1).) The implementing regulations promulgated pursuant to Proposition 57 (see Cal. Const., art. I, § 32, subd. (b)) preclude from this early parole consideration those offenders who, among other things, are currently serving a term of incarceration for a violent felony as defined in section 667.5, subdivision (c). (Cal. Code Regs., tit. 15, § 3490, subds. (a) & (c).) All of defendant's substantive offenses and attendant firearm enhancements are considered violent felonies for purposes of section 667.5, subdivision (c); as such, there is no basis to conclude defendant may be eligible for early parole consideration under Proposition 57. (§ 667.5, subd. (c)(9), (c)(17), and (c)(22); see In re Mohammad (2022) 12 Cal.5th 518, 524 [upholding CDCR's rulemaking authority to promulgate Cal. Code Regs., tit. 15, § 3490].)
The same reasoning applies to defendant's equal protection claim. "The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally." (People v. Brown (2012) 54 Cal.4th 314, 328.) "The first step in an equal protection analysis is to determine whether the defendant is similarly situated with those who are entitled to" the benefit provided under law. (People v. Cervantes (2020) 44 Cal.App.5th 884, 888.)
As defendant has not established his eligibility for an early parole hearing of any type, defendant cannot show he is similarly situated with other youthful offenders who receive a Franklin hearing by virtue of their eligibility for a youth offender parole hearing. In other words, if defendant is not eligible for any other type of early parole hearing, he does not have a need similar to those eligible for a youth offender parole hearing to preserve mitigating youth-related evidence under section 1203.01. For this reason, defendant's equal protection claim fails at the outset. (See People v. Morales (2019) 33 Cal.App.5th 800, 809 [failure to satisfy threshold similarly situated requirement dooms equal protection claim and does not require further analysis].)
DISPOSITION
The trial court's order denying defendant's motion for a Franklin hearing under section 1203.01 is affirmed.
WE CONCUR: LEVY, ACTING P. J., PEÑA, J.