Filed 9/6/22 P. v. M edeiros CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Petitioner and Respondent,

v.
RICHARD ALAN MEDEIROS, Defendant and Appellant. F083978 (Super. Ct. No. 17CR

- 02846B )



### OPINION

THE COURT *
APPEAL from an order of the Superior Court of Merced County. David W. Moranda, Judge.
John F. Shuck , under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

- ooOoo

-

* Before Poochigian, Acting P. J., Franson, J. and Snauffer, J.2

.

Defendant Richard Al an Medeiros ple d no contest to attempted murder and admitted gang and firearm enhancements. Defendant was 20 years of age at the time he committed the offense. He was sentenced to a total term of 23 years in prison. Roughly

two

- and one

- half years later, defendant req uested a hearing pursuant to People v.
Franklin (2016) 63 Cal.4th 261 ( Franklin ), to create a record of the features of his youth that contributed to the commission of his offense for use at an eventual youth offender parole hearing. The trial court denie d the motion without prejudice. Defendant argues that decision was an abuse of discretion. The People disagree. We affirm.
PROCEDURAL SUMMARY On May 31, 2017, the g rand j ury of Merced County returned an indictment, charging defendant with attempted mu rder (Pen. Code, §§ 664/187, subd. (a); 1 count 1), shooting at an occupied motor vehicle (§ 246; count 2), and possession of a firearm by a person prohibited from possessing a firearm (§ 29820, subd. (b); count 4). As to count 1,
the indictment further alleged defendant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(5)), and personally discharged a firearm causing great bodily injury (§ 12022.53, subd s . (d), (e)(1)(A)). As to count 2, the indictment also alleged def

endant committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)(B)), and personally discharged a firearm causing great bodily injury (§ 12022.53, subd s . (d), (e)(1)(A)). On April 30, 2019, pursuant to a negotiated plea agr eement, defendant pled no
contest to count 1 and admitted the lesser gang (§ 186.22, subd. (b)(1)(C)) and firearm (§ 12022.5) enhancements. In exchange, all remaining counts and allegations were dismissed, and the plea agreement specified a 23

- year term o f imprisonment.

1 All statutory references are to the Penal Code.3

.

On June 13, 2019, the trial court sentenced defendant to the agreed

- upon term of 23 years in prison as follows: on count 1, 9 years (the upper term), plus a four

- year (the middle term) firearm enhancement, plus a 10

- year gang enhancemen t. On December 20, 2021, defendant filed a request for a Franklin hearing. On January 21, 2022, the trial court denied defendant’s request without prejudice.
On February 23, 2022 , defendant filed a notice of appeal.
DISCUSSION 2
I. Additional Background a nd Parties’ Arguments Defendant’s December 20, 2021 request for a Franklin hearing asserted that at the time of his sentencing he “did not forgo any special hearing to determine his youth, diminished culpability, and related mitigating factors.” It further argued that defendant “was not privileged to receive a hearing weighing i n on his youth.” As his requested remedy, defendant sought a Franklin hearing. The trial court issued a written order explaining its denial of defendant’s request
for a Franklin hearing. The court acknowledged defendant’s right to present mitigating

y outh

- related evidence as set out in Franklin more than three years prior to defendant’s sentencing. The court reasoned that defendant’s right to present mitigating youth

- related evidence before his sentence became final was not infringed upon. Defendant “merely
failed to exercise his right.” The trial court further acknowledged that our Supreme Court has “ ‘held that a juvenile offender whose conviction and sentence are final may file a motion under section 1203.01 for the purpose of making a record of m itigating youth

related evidence. ( In re Cook (2019) 7 Cal.5th 439, 446

– 447 ... ( Cook ).) ’ ” The trial court denied defendant’s request “without prejudice to [defendant] filing a motion for a
Franklin proceeding under the authority of section 1203.01 and Coo k .” In short, the trial

2 Because defendant raises only postconviction, sentencing

- related issues, the facts underlying the offenses are not relevant and are omitted from this opinion.4

.

court concluded that defendant’s motion failed insofar as it argued that he had been
denied an opportunity to present evidence at a Franklin hearing, but also recognized that a pathway existed for defendant to seek a Franklin heari ng despite his failure to seek such a hearing prior to the finality of his case. Defendant argues that the trial court abused its discretion in denying his request
for a Franklin hearing. Specifically, defendant contends that he met all the requirements
for a Franklin hearing, but the trial court denied his motion “on a mere technicality” rather than construing the request as properly filed under section 1203.01 and Cook . The People respond (1) defendant’s appeal should be dismissed since the denial with out prejudice did not constitute an appealable order because it was “not a final order” and therefore did not impact defendant’s substantial rights (§ 1237, subd. (b)), and (2) the trial court’s denial of defendant’s request was not an abuse of discretion because it properly addressed the arguments presented in defendant’s request, denied the request, and afforded defendant “the opportunity to perfect his motion to seek the p roper remedy.” We agree with the People only as to their second argument.
II. Denial o f Defendant’s Request Was a n Appealable Order An appeal may be taken from the defendant in a criminal case from “any order made after judgment, affecting the substantial rights of the party.” (§ 1237, subd. (b).) In this case, the trial court reached the merits of the request; it did not deny the request on a procedural technicality without reaching the merits. The trial court understood defendant’s request for a Franklin hearing to be premised on a denial of the right to a Franklin hearing around the time of sentencing. That reading was reasonable from defendant’s request. The trial court then decided that defendant had not been denied the right to present evidence, he had merely not exercised the right. Such a n order is appealable, regardless of the trial court’s characterization of it being “without prejudice.” ( In re Lauren P

. (1996) 44 Cal.App.4th 763, 768; Steen v. Board of Civil
Service Comm ’ rs . (1945) 26 Cal.2d 716, 727

– 728, [order denying petition for writ of5

.

mandate “ ‘ without prejudice ’ ” was appealable]; United Teachers

— L.A. v. Los Angeles Unified School Dist

. (1994) 24 Cal.App.4th 1510, 1514

– 1515, fn. 3 [same]; Guenter v.
Lomas & Nettleton Co. (1983) 140 Cal.App.3d 460, 465 [order denyi ng class certification

“ ‘ without prejudice ’ ” was appealable].) The fact that the trial court suggested an alternate pathway for defendant to obtain the relief he sough t did not change the nature of the trial court’s denial of defendant’s request on its merits.
II I . The Trial Court Did Not Abuse Its Discretion The parties agree, as do we, regarding the basic parameters of parole hearings for juvenile offenders and the Franklin hearing framework: In 2014, the Legislature enacted law providing a parole eligibility mechanism for juvenile offenders. ( Franklin , supra , 63 Cal.4th at p. 277; § 3051.) “[S]ection 3051 ... requires the Board [of Parole Hearings] to conduct a ‘youth offender parole hearing’ during the 15th, 20th, or 25th year of a juvenile
offend er’s incarceration. [Citation.] The date of the hearing depends on the offender’s ‘[c]ontrolling offense,’ which is defined as ‘the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.’ ” “A person who was

conv icted 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 o f incarceration.” (§ 3051, subd. (b)(1).)
In Franklin , our Supreme Court held that a youth offender is entitled to a hearing where he could “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.” ( Fra nklin , supra , 63 Cal.4th at p. 284.) Entitlement to such a hearing had been established by Franklin for more than three years when defendant was
sentenced.6

.

Our Supreme Court in Cook , supra , 7 Cal.5th at p. 451, clarified that inmates who
are entitled to a youth offender parole hearing under section 3051 “may seek the remedy
of a Franklin proceeding even though the offender’s sentence is otherwise final.” It explained that “[n]othing about the remand[] in Franklin ... was dependent on the
nonfinal status of the juvenile offender’s conviction[ ]” and section 3051 makes clear it is to apply retrospectively to all youthful offenders. ( Cook , at p. 450.) “[T]he possibility that relevant evidence will be lost may increase as years go by... is no less true for
offe nders whose convictions are final on direct appeal.” ( Ibid .)
The Cook court outlined a mechanism for a youthful offender whose conviction
was final to seek a Franklin hearing: file “a motion in [the] superior court under the original caption and case nu mber, citing the authority of section 1203.01 and [the Cook ] decision.” ( Cook , supra , 7 Cal.5th at p. 458 .) It explained, that “[u]nder section 1203.01, the trial court may create a postjudgment record for the benefit of the Department of Corrections and Rehabilitation,” and although the statute “does not mention a Franklin proceeding to preserve evidence” t he court possesses the authority to adopt the procedure for this purpose. ( Id

. at pp. 452

– 454.) In this case, defendant filed a request for a Franklin hearing and suggested that it was denied to him when his case was not yet final. The trial court could have taken the additional step of construing his request as a motion pursuant to section 1203.01 and
Cook . It did not and it was not required to do so. Instead, it considered defendant’s request on its face and denied defendant’s request on its merits, finding that he was not denied an opportunity to present evidence prior to the finality of his case. It then explained the mechanism for seeking relief pursuant to section 1203.01 and Cook . The trial court’s decision was not an abuse of discretion.
DISPO SITION
The order is affirmed.