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Filed 5/28/21 P. v. Lorta CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DAMIAN LORTA,

Defendant and Appellant.

C092362

(Super. Ct. No. CR93973)

In 1990, defendant Damian Lorta pleaded guilty to murder. Decades later, the 

Legislature created a mechanism for early parole review for youthful offenders in Penal 

Code section 3051.1 The Supreme Court determined in People v. Franklin (2016) 63

Cal.4th 261 (Franklin) that defendants who will become eligible for such a parole hearing 

are entitled to create a record of evidence pertaining to youthful characteristics.

1 Undesignated statutory references are to the Penal Code.
2

Defendant filed a motion with the trial court seeking a Franklin hearing to gather 

evidence relevant to his eventual youth offender parole hearing and sought appointment 

of counsel. The trial court denied the motion in a written order without appointing 

counsel based on In re Cook (2019) 7 Cal.5th 439 (Cook), finding that a Franklin hearing 

would be unlikely to produce fruitful evidence.

Defendant appeals the trial court’s denial of his motion for a Franklin proceeding 

to establish youth-related mitigation factors for a future youth offender parole hearing 

under section 3051. He also asserts the court erred in failing to appoint counsel before 

making the discretionary decision to deny him a hearing. 

We conclude defendant was eligible for a Franklin proceeding, which triggered 

his right to counsel, and that the factors outlined by the trial court in denying him the 

proceeding were insufficient to justify the order. Consequently, we reverse the order 

denying defendant a Franklin proceeding and remand for reconsideration with the benefit 

of appointed counsel.

BACKGROUND2

In 1990, defendant pleaded guilty to numerous felonies, including murder, crimes 

which he committed when he was 18 years old. Consistent with the terms of his plea 

agreement, the trial court sentenced defendant to 25 years to life, plus seven years four 

months, in state prison. Defendant did not appeal his conviction. Defendant was first 

eligible for parole in January 2012. In 2011, he waived his right to a parole hearing. In 

2013, defendant was denied parole for seven years. 

2 On September 1, 2020, defendant filed a request for judicial notice pursuant to 

California Rules of Court, rule 8.252, asking this court to take judicial notice of those 

documents relied on by the trial court in reaching its decision on defendant’s motion for a 

Franklin hearing. That request is granted.
3

In 2020, defendant waived his right to his March 30, 2020 parole hearing and filed 

a petition for writ of habeas corpus seeking a hearing under Franklin, supra, 63 Cal.4th 

261, and Cook, supra, 7 Cal.5th 439, to establish a record of relevant youth-related 

mitigating factors for later consideration by the Board of Parole Hearings at his youth 

offender parole hearing. On March 5, 2020, the trial court found that a habeas petition is 

not available in the Franklin context after a judgment is final. The court thus denied 

defendant’s petition without prejudice to defendant “filing a motion pursuant to section 

1203.01 . . . .” 

On May 7, 2020, defendant filed a motion for a Franklin proceeding in superior 

court. Defendant’s motion stated he would present evidence concerning hallmarks of 

youth, inherent impact of age upon his culpability, home and family environment, and the 

circumstances of the offenses. 

The trial court denied defendant’s motion on June 17, 2020, apparently without 

appointing counsel. The court noted “timeliness of the request for relief is a factor to be 

considered” and, here, “Defendant’s conviction is three decades old and any investigation 

ordered by this Court is unlikely to produce fruitful evidence of Defendant’s youthful 

characteristics. Additionally, a review of the [California Department of Corrections and 

Rehabilitation] online inmate locator indicates that Defendant has already had a parole 

suitability hearing. In 2011, Defendant voluntarily waived his right to a parole hearing. 

In 2013 his parole was denied for seven years. In 2020, Defendant waived his right to a 

hearing. Defendant’s next hearing is scheduled for April 2021. It is apparent that he has 

had, and continues to have, opportunities to place his youthful characteristics before the 

Board of Parole Hearings for consideration and that he has had several meaningful 

opportunities for release.” 

Defendant appeals from that order. 
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DISCUSSION

I

Senate Bill No. 260 (2013-2014 Reg. Sess.), Franklin, and Cook

“[T]he California Legislature passed Senate Bill No. 260 (2013-2014 Reg. Sess.), 

which became effective January 1, 2014, and enacted sections 3051, 3046, subdivision 

(c), and 4801, subdivision (c), to provide a parole eligibility mechanism for juvenile 

offenders.” (People v. Perez (2016) 3 Cal.App.5th 612, 618.) “In October 2015, the 

Legislature amended section 3051, and effective January 1, 2016, anyone who committed 

his or her controlling offense before reaching 23 years of age [became] entitled to a youth 

offender parole hearing. (§ 3051, subd. (a)(1), amended by Stats. 2015, ch. 471, § 1.)” 

(Perez, supra, at p. 618.) Under revised section 3051, the Board of Parole Hearings 

“shall complete all youth offender parole hearings for individuals who were sentenced to 

indeterminate life terms and who [became] entitled to have their parole suitability 

considered at a youth offender parole hearing on January 1, 2016, by July 1, 2017.” 

(§ 3051, subd. (i)(2)(A).)

In Franklin, a 16-year-old defendant shot and killed another teenager; he was 

convicted of murder with a firearm enhancement and received the statutorily mandated 

sentence of life in prison with the possibility of parole in 50 years. (Franklin, supra, 

63 Cal.4th at p. 268.) Our Supreme Court found Senate Bill No. 260 (2013-2014 Reg. 

Sess.) granted Franklin a parole hearing during his 25th year in prison, which mooted the

Eighth Amendment challenge to his sentence. (Franklin, at pp. 276-277.) The Franklin

court “remand[ed] the matter to the trial court for a determination of whether Franklin 

was afforded sufficient opportunity to make a record of information relevant to his 

eventual youth offender parole hearing.” (Id. at p. 284.)

The Supreme Court in Cook determined the proper avenue to seek a Franklin

proceeding is through section 1203.01 rather than by way of a habeas corpus petition. 

(Cook, supra, 7 Cal.5th at pp. 446-447.) The court explained: “[T]he proper avenue is to 
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file a motion in superior court under the original caption and case number, citing the 

authority of section 1203.01 and today’s decision. The motion should establish the 

inmate’s entitlement to a youth offender parole hearing and indicate when such hearing is 

anticipated to take place, or if one or more hearings have already occurred. . . . 

[C]onsistent with Franklin and the court’s inherent authority, the offender shall have the 

opportunity 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, 

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.’ ” (Cook, at pp. 458-459.)

The high court continued: “Although Franklin mandates an opportunity for 

evidence preservation, the trial court may ‘exercise its discretion to conduct this process 

efficiently . . . .’ Finally, Franklin emphasized that the purpose of the proceeding was to 

allow the offender to assemble evidence ‘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.’ 

[Citation.] Some offenders who file these postjudgment motions in the trial court may 

have spent a decade or more in prison. Some may have even come before the Board for a 

youth offender parole hearing. The court may consider whether a Franklin proceeding is 

likely to produce fruitful evidence considering such factors as the passage of time and 

whether the offender has already benefitted from the factfinding procedures set forth in 

section 3051, subdivision (f)(1) and (2) with the assistance of appointed counsel 

(§ 3041.7; Cal. Code Regs., tit. 15, § 2256, subd. (c)).” (Cook, supra, 7 Cal.5th at 

p. 459.)

Cook confirmed that the manner and extent of a Franklin hearing is left to the 

discretion of trial courts. (Cook, supra, 7 Cal.5th at p. 459.) Trial courts “may” also 

consider whether a Franklin proceeding is unnecessary because it will not produce 
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“fruitful evidence.” (Ibid.) “Accordingly, we ask whether the trial court’s findings of 

fact are supported by substantial evidence, whether its rulings of law are correct, and 

whether its application of the law to the facts was not arbitrary nor capricious. [Citation.] 

Critical to the resolution of this case, we note that when a trial court’s decision rests on an 

error of law, that decision is an abuse of discretion. [Citations.]” (People v. Superior 

Court (Humberto S.) (2008) 43 Cal.4th 737, 746.)

II

Analysis

Defendant argues he was entitled to a Franklin proceeding and that the trial court 

erred in finding the timeliness of his request and his earlier parole hearing opportunities

operated to deny him a hearing. Defendant also contends the trial court erred in failing to 

appoint counsel. The People counter in their reply brief filed December 2, 2020, that the 

trial court acted within its discretion in relying on the passage of time and past parole 

hearings under Cook to deny defendant a hearing, and because a parole hearing already 

was scheduled for April 2021 (for which counsel would be appointed), a separate 

Franklin proceeding is unnecessary. Defendant has the more persuasive arguments.

Defendant’s motion required two separate analyses: (1) whether he was generally 

eligible for the Franklin fact-gathering process, and (2) whether a Franklin proceeding 

would produce fruitful evidence. Cook reaffirmed that Franklin “mandates an 

opportunity for evidence preservation” for eligible prisoners. (Cook, supra, 7 Cal.5th at 

p. 459.) Yet, Cook also confirmed trial courts have discretion “ ‘to conduct this process 

efficiently, ensuring that the information introduced is relevant, noncumulative, and 

otherwise in accord with the governing rules, statutes, and regulations.’ ” (Ibid.) This 

includes determining whether a Franklin proceeding is even “likely to produce fruitful 

evidence.” (Ibid.)

Defendant satisfied the first analysis by bringing his motion in superior court 

under the original caption and case number, citing section 1203.01 and Cook, establishing 
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his entitlement to a youth offender parole hearing under section 3051 (because he was 

under 23 years old at the time of the crime), and indicating he had not yet had such a 

hearing. This renders him eligible for a Franklin proceeding. (Cook, supra, 7 Cal.5th at 

p. 459 [Franklin “mandat[ed]” an opportunity to preserve evidence and “it would be 

improper for the court to preclude a juvenile offender’s chance to supplement the record 

with information relevant to his eventual youth offender parole hearing” (id. at p. 453)].)

Further, defendant’s eligibility for the Franklin process triggered his right to 

appointment of counsel. The right to counsel “applies at all critical stages of a criminal 

proceeding in which the substantial rights of a defendant are at stake.” (People v. 

Crayton (2002) 28 Cal.4th 346, 362.) Section 3051 provides an opportunity to 

significantly reduce the time for parole eligibility and a Franklin hearing is fundamental 

to this opportunity; it creates a record so that the Parole Board “may properly discharge 

its obligation to ‘give great weight to’ [such] factors [citation] in determining whether the 

offender is ‘fit’ ” for parole. (See Franklin, supra, 63 Cal.4th at p. 284.) Given the 

critical role a Franklin proceeding plays in determining parole eligibility at a subsequent 

youth offender parole hearing, we conclude the proceeding qualifies as a “ ‘critical 

stage’ ” during which the right to counsel attaches. (People v. Lipptrapp (2021) 59

Cal.App.5th 886 (Lipptrapp).) Thus, a party who has established eligibility for a 

Franklin proceeding is entitled to appointment of counsel. (Lipptrapp, supra, at p. 886 [a 

party moving for relief under section 1203.01 is entitled to the appointment of counsel].)

As for the second analysis, the court relied on the two factors outlined in Cook to 

find a Franklin proceeding would be unlikely to produce fruitful evidence: (1) prior 

opportunity to benefit from section 3051, and (2) passage of time. We conclude these 

findings were not supported by substantial evidence.

Initially, there is no evidence defendant has already benefitted from section 3051. 

The parole board was required to have a youth offender parole hearing for defendant in 

2017 because he became eligible under section 3051 in 2016. (§ 3051, subd. (i)(2)(A).) 
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The record does not disclose he had such a hearing and we cannot so assume. Instead, 

the record indicates he had two parole hearings scheduled well before 2016. Defendant 

waived the first of those hearings and had parole denied at the second. Prior to 2016, 

however, defendant had no incentive to create a record of relevant youth-related 

mitigating factors. The trial court’s finding that defendant had “opportunit[ies] to place 

his youthful characteristics before the Board of Parole Hearings” was therefore 

unsupported by the evidence.

This leaves passage of time, which cannot be the sole reason for finding a lack of 

fruitful evidence. The Legislature included a provision for those prisoners who would 

automatically become eligible on both section 3051’s effective date and the effective date 

of its amendment. (§ 3051, subd. (i).) These prisoners could have been convicted 25 

years or more prior to enactment. (§ 3051, subd. (b)(3).) From this it is clear the 

Legislature intended that the benefits of youth offender parole hearings be available even 

to those prisoners with decades-old convictions. And, under Franklin, prisoners who are 

entitled to a future youth offender parole hearing are also entitled to an opportunity to 

prepare a record relevant to such a hearing. (Franklin, supra, 63 Cal.4th at pp. 283-284.) 

Prisoners who were convicted long before they became eligible under section 3051 are 

therefore entitled to a Franklin hearing. (See In re Loza (2018) 27 Cal.App.5th 797, 807 

[remanding for a Franklin hearing where a defendant’s “sentencing took place well

before” Franklin]; Lipptrapp, supra, 59 Cal.App.5th at p. 897 [ordering the trial court to 

conduct a Franklin proceeding where the defendant “ha[d] been incarcerated for over 20 

years and he was eligible for the hearing several years before he filed the motion”].)

Defendant was convicted in 1990 and was not eligible for a youthful offender 

parole hearing until 2016. There is no evidence he has had such a hearing, and the 

passage of time since his conviction cannot be the sole reason for disqualifying him from 

the potential benefits of a Franklin proceeding. Thus, there is insufficient evidence in the 

record before us supporting the denial of a Franklin proceeding for which defendant is 
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otherwise eligible based on the factors outlined in Cook. We must reverse and remand 

for the trial court to reconsider whether a Franklin proceeding would be beneficial.3 This 

must also be done with the benefit of counsel appointed for defendant.

DISPOSITION

The order denying defendant’s section 1203.01 motion seeking a Franklin

proceeding is reversed and the cause is remanded with directions to reconsider the matter 

consistent with the views expressed herein.

 KRAUSE , J.

We concur:

 RAYE , P. J.

 DUARTE , J.

3 The People also argue a Franklin proceeding would not be “fruitful” because 

defendant was scheduled to have a parole hearing in April 2021. That is a matter that the 

trial court may consider on remand.