~ SEE CONCURRING AND DISSENTING OPINION ~

Filed 5/26/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S217699

v. )

) Ct.App. 1/3 A135607

TYRIS LAMAR FRANKLIN, )

) Contra Costa County

Defendant and Appellant. ) Super. Ct. No. 05-110301-9

____________________________________)

Defendant Tyris Lamar Franklin was 16 years old at the time he shot and 

killed another teenager. A jury convicted Franklin of first degree murder and 

found true a personal firearm-discharge enhancement. The trial court was 

obligated by statute to impose two consecutive 25-year-to-life sentences, so 

Franklin‘s total sentence was life in state prison with the possibility of parole after 

50 years.

After Franklin was sentenced, the United States Supreme Court held that 

the Eighth Amendment to the federal Constitution prohibits a mandatory life 

without parole (LWOP) sentence for a juvenile offender who commits homicide. 

(Miller v. Alabama (2012) 567 U.S. __, __ [132 S.Ct. 2455, 2460] (Miller).) 

Shortly thereafter, we held in People v. Caballero (2012) 55 Cal.4th 262 

(Caballero) that the prohibition on life without parole sentences for all juvenile 

nonhomicide offenders established in Graham v. Florida (2010) 560 U.S. 48 

(Graham) applied to sentences that were the ―functional equivalent of a life 
2

without parole sentence,‖ including Caballero‘s term of 110 years to life. 

(Caballero, at p. 268.) Franklin challenges the constitutionality of his 50-year-tolife sentence under these authorities.

We granted review to answer two questions: Does Penal Code section 

3051 moot Franklin‘s constitutional challenge to his sentence by requiring that he 

receive a parole hearing during his 25th year of incarceration? If not, then does 

the state‘s sentencing scheme, which required the trial court to sentence Franklin 

to 50 years to life in prison for his crimes, violate Miller‘s prohibition against 

mandatory LWOP sentences for juveniles? 

We answer the first question in the affirmative: Penal Code sections 3051 

and 4801 — recently enacted by the Legislature to bring juvenile sentencing in 

conformity with Miller, Graham, and Caballero — moot Franklin‘s constitutional 

claim. Consistent with constitutional dictates, those statutes provide Franklin with 

the possibility of release after 25 years of imprisonment (Pen. Code, § 3051, 

subd. (b)(3)) and require the Board of Parole Hearings (Board) to ―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‖

(id., § 4801, subd. (c)). In light of this holding, we need not decide whether a life 

sentence with parole eligibility after 50 years of incarceration is the functional 

equivalent of an LWOP sentence and, if so, whether it is unconstitutional in 

Franklin‘s case.

Although Franklin‘s constitutional claim has been mooted by the passage of 

Senate Bill No. 260 (2013–2014 Reg. Sess.) (Senate Bill No. 260), he raises 

colorable concerns as to whether he was given adequate opportunity at sentencing 

to make a record of mitigating evidence tied to his youth. The criteria for parole 

suitability set forth in Penal Code sections 3051 and 4801 contemplate that the 

Board‘s decisionmaking at Franklin‘s eventual parole hearing will be informed by 
3

youth-related factors, such as his cognitive ability, character, and social and family 

background at the time of the offense. Because Franklin was sentenced before the 

high court decided Miller and before our Legislature enacted Senate Bill No. 260,

the trial court understandably saw no relevance to mitigation evidence at 

sentencing. In light of the changed legal landscape, we remand this case so that 

the trial court may determine whether Franklin was afforded sufficient opportunity 

to make such a record at sentencing. This remand is necessarily limited; as section 

3051 contemplates, Franklin‘s two consecutive 25-years-to-life sentences remain 

valid, even though the statute has made him eligible for parole during his 25th 

year of incarceration.

I.

On January 10, 2011, Franklin, at age 16, murdered another 16-year-old 

boy, Gene Grisby. Over the course of a one-year period preceding the crime, 

Franklin had been involved in numerous and increasingly dangerous altercations 

with a group of boys who lived in the Crescent Park housing project in Richmond 

and referred to themselves as the ―Crescent Park gang.‖ At first, Franklin engaged 

in fistfights with members of the Crescent Park gang, including Gene and another 

juvenile named Kian. But the boys soon began to arm themselves. According to 

Franklin and his grandmother, Crescent Park gang members had fired multiple 

gunshots into his home while his family was inside. Franklin believed that Gene 

associated with the individuals responsible for this incident. Crescent Park gang 

members had also shot the windows out of Franklin‘s mother‘s car and slashed her 

tires. Franklin also testified that the Friday before the murder, Kian and another 

Crescent Park gang member had come to his classroom, where Kian pulled up his 

shirt to display a gun on his hip. Franklin saw this gesture as a serious threat. 

After the incident at school, Franklin told his older brother, Demond, that 

Kian had threatened him with a gun at school. This prompted Demond to loan 
4

him a .22-caliber pistol for protection the following Monday morning, the day of 

the murder. That same day, Kian and other Crescent Park gang members attacked 

Franklin‘s 13-year-old brother, Terrell. The attackers told Terrell that they were 

also looking for Franklin. Demond called Franklin to inform him that Terrell had 

been attacked.

After learning about the attack, Franklin told his friends that Terrell had 

been ―jumped‖ and asked an older teenager for a ride to the Crescent Park housing 

complex. Franklin testified at trial that he was angry and afraid for his family. He 

did not know what the Crescent Park gang was going to do next and wanted to 

confront them. According to Franklin, he did not plan to shoot anyone but knew 

there was a ―possibility that I might.‖ 

Upon arriving at the housing complex, Franklin spotted Gene walking on a 

street and asked the driver to unlock the car door. Another passenger in the car, 

Khalifa, asked: ―Why we riding up on Gene when he don‘t have anything to do 

with the situation?‖ According to Khalifa, Franklin answered something like, ―It 

don‘t matter. He is from the Crescents‖ or ―It doesn‘t matter. They beat up my 

brother.‖ According to another passenger, Jaswinder, Franklin said something 

like, ―It doesn‘t matter. He‘s still from Crescent Park.‖ 

As Franklin exited the car, he pulled the .22-caliber pistol from his 

waistband. According to a witness who observed the murder from a balcony 

across the street, Franklin walked around the car and, without saying anything, 

shot Gene several times. The witness testified that Franklin began shooting 

―shortly after he got out of the car‖ and before he reached Gene. Jaswinder and 

Khalifa also did not hear any conversation between Franklin and Gene before 

Franklin began shooting. 

Franklin testified that as he approached Gene, he asked, ―Which one of you 

motherfuckers just jumped my little brother?‖ Gene replied, ―Fuck you and fuck 
5

your little brother.‖ Franklin testified that Gene‘s response angered him and made 

him feel ―numb.‖ According to Franklin: ―It was like — it was so much. It was, 

it was like everything just — I don‘t know, just — it just, I don‘t know. Like, I —

I wasn‘t in my body no more. It was like I don‘t remember everything like.‖ 

After shooting Gene, Franklin got back into the car, and the car sped off. Inside 

the car, Franklin said something like, ―That Crescent Park dude is a sucker.‖ 

Gene‘s aunt testified that when she heard the gunshots, she looked out the 

window of the apartment where she and Gene lived and saw a young man with a 

handgun fire multiple shots. A few minutes later, Gene ran through the front door 

of the apartment, holding his right shoulder exclaiming, ―I‘ve been hit,‖ before 

collapsing on the floor. Richmond police responded to the shooting and found 

Gene on the floor of his apartment with multiple gunshot wounds to his head and 

body. Gene was pronounced dead at the scene.

The district attorney charged Franklin with first degree murder under Penal 

Code section 187 and alleged a personal firearm-discharge enhancement under 

Penal Code section 12022.53, subdivision (a)(1). (All undesignated statutory 

references are to the Penal Code.) Because Franklin was charged with murder and 

was 16 years of age at the time of the offense, the district attorney exercised his

discretion to file charges directly in criminal court rather than juvenile court. 

(Welf. & Inst. Code, § 707, subds. (b), (d).) A jury convicted Franklin of first 

degree murder and found true the firearm-personal discharge allegation.

At sentencing, Franklin apologized for his crime: ―I do want to say I‘m 

sorry, but sorry is a simple word, though. I didn‘t have no thoughts about killing 

him, you know. I don‘t know. It‘s hard to explain. But I do want to apologize to 

the family for taking your son, and I do want to apologize to my mother for taking 

me away from her and my family. I want to say sorry, but, like I said, sorry is . . . 

sorry can‘t explain the way I feel. Like you said you can‘t sleep at night. I can‘t 
6

sleep at night, either. I haven‘t been able to sleep at night for a lot of years now, 

you know. I‘m not good with emotion, so I‘m . . . I really wish this didn‘t happen. 

I wish I could have found another way, but, like I said, I want to say sorry, but 

sorry is just — I don‘t know no other words to use. I don‘t know. I don‘t know. 

I‘d like to say sorry to my mother, too. I would like to say sorry to each and every 

one of you all for what I did.‖ 

The trial court imposed a mandatory sentence of 25 years to life for the 

murder (§ 190, subd. (a)) and a mandatory consecutive sentence of 25 years to life 

for the firearm enhancement (§ 12022.53, subd. (d)) for a total term of 50 years to 

life. Explaining the sentence, the court said: ―The sentence is the sentence that‘s 

prescribed by law, not one that the Court chooses. And I will impose it in this 

case, but first I just want to say a couple of words to both families. I see a lot of 

pain in this courtroom all the time. And so often it‘s because of senseless things 

that happen. And if there‘s a senseless case, this is a senseless case. We‘ve got 

two young men‘s lives destroyed. . . . We‘ve lost two young men. And for what? 

It‘s so senseless. I would have loved to have seen these two young men grow up 

to be people, to be the people they‘re supposed to be, both of them. And neither of 

them is going to have that opportunity. It‘s because of unspeakably stupid choices 

that you made, Mr. Franklin. And I just hope that something can come out of this 

that‘s productive. I‘m impressed with Gene[‘s] . . . family‘s dignity going through 

this. Their empathy for Mr. Franklin‘s family and even Mr. Franklin. And I‘m 

impressed with Mr. Franklin‘s family‘s understanding and empathy for [Gene]‘s 

family. And if we can take something from this, I would love for it to be, get the 

guns out of Richmond, get the violence out of Richmond, and don‘t have these 

young black men going after each other because we see it so much in this 

courthouse. And what ends up happening is we have some young men going to 

prison for the best years of their lives at the least, and other young men who don‘t 
7

get to grow up. And how crazy is this? How crazy. So if both families can do 

anything to try to make some sense and find some good out of this, work together 

to try to get the guns out of Richmond, get the guns out of the pockets of these 

young men who haven‘t got the frontal lobes yet to figure out how to deal with 

their issues.‖ 

Franklin appealed, arguing that the trial court made numerous instructional 

and evidentiary errors and that, because he was 16 years old when he committed 

the crime, his sentence violates the Eighth Amendment‘s prohibition against cruel 

and unusual punishment as interpreted in Miller, supra, 567 U.S. __ [132 S.Ct. 

2455]. The Court of Appeal affirmed Franklin‘s conviction and sentence. The 

court assumed without deciding that ―the sentence, when imposed, violated the 

Eighth Amendment and that had there been no intervening developments, remand 

for resentencing would have been required.‖ But the court held that ―any potential 

constitutional infirmity in [defendant‘s] sentence has been cured by the 

subsequently enacted Penal Code section 3051, which affords youth offenders a 

parole hearing sooner than had they been an adult.‖ Thus, ―defendant‘s sentence 

is no longer the functional equivalent of an LWOP sentence and no further 

exercise of discretion at this time is necessary.‖ 

We granted review.

II.

As the trial court noted, Franklin‘s sentence was statutorily mandated at the 

time it was imposed. The interaction of two features of California law gives rise 

to the possibility of mandatory lengthy sentences for juvenile offenders: 

(1) statutes authorizing and sometimes requiring a criminal court to exercise 

jurisdiction over juvenile offenders and (2) statutes restricting the trial court‘s 

discretion to impose concurrent sentences or to strike certain sentencing 

enhancements.
8

Under Welfare and Institutions Code section 707, subdivision (d)(1), the 

district attorney may file an accusatory pleading in criminal court without first 

seeking authorization from a juvenile court in cases where ―a minor 16 years of 

age or older is accused of committing one of the violent or serious offenses 

enumerated in section 707, subdivision (b),‖ including murder. Here the district 

attorney filed an accusatory pleading in criminal court because Franklin was a 16

year old accused of committing murder.

Once a juvenile offender is tried and convicted in criminal court, the trial 

court may be statutorily obligated to impose a lengthy sentence. In this case, the 

jury convicted Franklin of first degree murder (§ 187) and found true an 

enhancement for the personal and intentional discharge of a firearm that 

proximately caused great bodily injury or death (§ 12022.53, subd. (d)). 

Section 190, subdivision (a) required the trial court to impose a term of 25 years to 

life for the murder, and section 12022.53, subdivision (d) required ―an additional 

and consecutive term of imprisonment‖ of 25 years to life. Although section 

1385, subdivision (c) provides trial courts with discretion to dismiss or strike the 

additional punishment associated with an offense or enhancement ―in furtherance 

of justice,‖ section 12022.53, subdivision (h) prohibits trial courts from striking a 

firearm enhancement. (See People v. Chiu (2003) 113 Cal.App.4th 1260, 1265.) 

The court was therefore required by statute to sentence Franklin to two 

consecutive terms of 25 years to life.

Section 3046, subdivision (a)(2) provides that an individual serving a life 

sentence may not be paroled until he has served the ―minimum term or minimum 

period of confinement under a life sentence before eligibility for parole.‖ Section 

3046, subdivision (b) further provides that where, as here, two or more life 

sentences are ordered to run consecutively, the inmate may not be paroled ―until 

he or she has served the term specified in subdivision (a) on each of the life 
9

sentences.‖ In essence, where two indeterminate sentences run consecutively, a 

defendant must serve the full minimum term of each before becoming eligible for 

parole. (See People v. Felix (2000) 22 Cal.4th 651, 656.) The minimum term of 

Franklin‘s sentence for murder is 25 years, as is the minimum term of his sentence 

for the firearm enhancement. Thus, Franklin would first become eligible for 

parole after 50 years of imprisonment at the age of 66.

III.

Franklin claims that this sentence violates the Eighth Amendment because 

it is effectively a term of life without parole imposed by statute, without judicial 

consideration of his youth and its relevance for sentencing. This claim is 

grounded in a series of United States Supreme Court cases assigning constitutional 

significance to characteristics of youth long known to common sense and 

increasingly substantiated through science.

A.

The Eighth Amendment prohibition on cruel and unusual punishment 

―guarantees individuals the right not to be subjected to excessive sanctions.‖ 

(Roper v. Simmons (2005) 543 U.S. 551, 560 (Roper); see Robinson v. California

(1962) 370 U.S. 660, 667 [Eighth Amend. is binding on the states through the 14th 

Amend.].) This prohibition encompasses the ―foundational principle‖ that the 

―imposition of a State‘s most severe penalties on juvenile offenders cannot 

proceed as though they were not children.‖ (Miller, supra, 567 U.S. at p. __ [132 

S.Ct. at p. 2466].) From this principle, the high court has derived a number of 

limitations on juvenile sentencing: (1) no individual may be executed for an 

offense committed when he or she was a juvenile (Roper, at p. 578); (2) no 

juvenile who commits a nonhomicide offense may be sentenced to LWOP 

(Graham, supra, 560 U.S. at p. 74); and (3) no juvenile who commits a homicide 
10

offense may be automatically sentenced to LWOP (Miller, at p. __ [132 S.Ct. at 

p. 2460]).

Miller addressed two cases, each of which involved a 14-year-old offender 

tried as an adult, convicted of murder, and sentenced to LWOP under a state law 

that did not allow the sentencing authority to impose a less severe punishment. In 

prohibiting such mandatory LWOP sentences, the high court in Miller affirmed 

and amplified its observations in Graham and Roper that children are 

―constitutionally different . . . for purposes of sentencing‖ for several reasons

based ―not only on common sense — on what  ̳any parent knows‘ — but on 

science and social science as well.‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at 

p. 2464]; see id. at p. __ [132 S.Ct. at p. 2464, fn. 5] [―the science and social 

science supporting Roper‘s and Graham‘s conclusions have become even 

stronger‖].) ―First, children have a  ̳ ―lack of maturity and an underdeveloped 

sense of responsibility,‖ ‘ leading to recklessness, impulsivity, and heedless risktaking. . . . Second, children  ̳are more vulnerable . . . to negative influences and 

outside pressures,‘ including from their family and peers; they have limited 

 ̳contro[l] over their own environment‘ and lack the ability to extricate themselves 

from horrific, crime-producing settings. . . . And third, a child‘s character is not 

as  ̳well formed‘ as an adult‘s; his traits are  ̳less fixed‘ and his actions less likely 

to be  ̳evidence of irretrievabl[e] deprav[ity].‘ ‖ (Ibid., citations omitted.)

These ―distinctive attributes of youth diminish the penological justifications 

for imposing the harshest sentences on juvenile offenders, even when they commit 

terrible crimes. Because  ̳ ―[t]he heart of the retribution rationale‖ ‘ relates to an 

offender‘s blameworthiness,  ̳ ―the case for retribution is not as strong with a 

minor as with an adult.‖ ‘ . . . Nor can deterrence do the work in this context, 

because  ̳ ―the same characteristics that render juveniles less culpable than 

adults‖ ‘ — their immaturity, recklessness, and impetuosity — make them less 
11

likely to consider potential punishment. . . . Similarly, incapacitation could not 

support the life-without-parole sentence in Graham: Deciding that a  ̳juvenile 

offender forever will be a danger to society‘ would require  ̳mak[ing] a judgment 

that [he] is incorrigible‘ — but  ̳ ―incorrigibility is inconsistent with youth.‖ ‘. . .

And for the same reason, rehabilitation could not justify that sentence. Life 

without parole  ̳forswears altogether the rehabilitative ideal.‘ . . . It reflects  ̳an 

irrevocable judgment about [an offender‘s] value and place in society,‘ at odds 

with a child‘s capacity for change.‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at 

p. 2465], citations omitted.)

Miller also relied on cases that have ―elaborated on the requirement that 

capital defendants have an opportunity to advance, and the judge or jury a chance 

to assess, any mitigating factors, so that the death penalty is reserved only for the 

most culpable defendants committing the most serious offenses.‖ (Miller, supra, 

567 U.S. at p. __ [132 S.Ct. at p. 2467], citing Woodson v. North Carolina (1976) 

428 U.S. 280 and related cases.) These cases were relevant, the high court 

explained, because Graham had ―likened life without parole for juveniles to the 

death penalty itself.‖ (Miller, at p. __ [132 S.Ct. at p. 2463]; see id. at p. __ [132 

S.Ct. at p. 2466] [―Imprisoning an offender until he dies alters the remainder of his 

life  ̳by a forfeiture that is irrevocable.‘ [Graham, supra, 560 U.S. at p. 69.]‖].)

Based on the ―confluence‖ of the considerations above, the high court 

concluded that ―in imposing a State‘s harshest penalties, a sentencer misses too 

much if he treats every child as an adult.‖ (Miller, supra, 567 U.S. at pp. __, __ 

[132 S.Ct. at pp. 2464, 2468].) Miller thus held that a state may not require a 

sentencing authority to impose LWOP on juvenile homicide offenders; the 

sentencing authority must have individualized discretion to impose a less severe 

sentence and, in exercising that discretion, must take into account a wide array of 

youth-related mitigating factors. (Id. at pp. __–__ [132 S.Ct. at pp. 2468–2469].) 
12

While declining to decide whether ―the Eighth Amendment requires a categorical 

bar on life without parole for juveniles, or at least for those 14 and younger‖ (id. at 

p. __ [132 S.Ct. at p. 2469]), the high court concluded by saying: ―[G]iven all we 

have said in Roper, Graham, and this decision about children‘s diminished 

culpability and heightened capacity for change, we think appropriate occasions for 

sentencing juveniles to this harshest possible penalty will be uncommon. That is 

especially so because of the great difficulty we noted in Roper and Graham of 

distinguishing at this early age between  ̳the juvenile offender whose crime 

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

crime reflects irreparable corruption.‘ [Citations.] Although we do not foreclose a 

sentencer‘s ability to make that judgment in homicide cases, we require it to take 

into account how children are different, and how those differences counsel against 

irrevocably sentencing them to a lifetime in prison.‖ (Ibid.) 

B.

Since Graham and Miller, courts throughout the country have examined 

whether the high court‘s restrictions on LWOP sentences apply to lengthy 

sentences with a release date near or beyond a juvenile‘s life expectancy. In 

Caballero, we held that the defendant‘s 110-year sentence was the ―functional 

equivalent‖ of life without parole and thus violated Graham‘s prohibition against 

LWOP sentences for juvenile offenders convicted of nonhomicide crimes. 

(Caballero, supra, 55 Cal.4th at p. 268; see Sumner v. Shuman (1987) 483 U.S. 

66, 83 [―there is no basis for distinguishing . . . between an inmate serving a life 

sentence without possibility of parole and a person serving several sentences of a 

number of years, the total of which exceeds his normal life expectancy.‖].) But 

we did not further elaborate what it means for a sentence to be the ―functional 

equivalent‖ of LWOP, and we left open how our holding should be applied in the 

case of a juvenile homicide offender. (Caballero, at p. 268, fn. 4.)
13

We now hold that just as Graham applies to sentences that are the 

―functional equivalent of a life without parole sentence‖ (Caballero, supra, 55 

Cal.4th at p. 268), so too does Miller apply to such functionally equivalent 

sentences. As we noted in Caballero, Miller ―extended Graham‘s reasoning‖ to 

homicide offenses, observing that ―  ̳none of what [Graham] said about children—

about their distinctive (and transitory) mental traits and environmental 

vulnerabilities—is crime-specific.‘ ‖ (Caballero, at p. 267, quoting Miller, supra, 

567 U.S. at p. __ [132 S.Ct. at p. 2465].) Because sentences that are the functional 

equivalent of LWOP implicate Graham‘s reasoning (Caballero, at p. 268), and 

because ―  ̳Graham‘s reasoning implicates any life-without-parole sentence 

imposed on a juvenile‘ ‖ whether for a homicide or nonhomicide offense (id. at 

p. 267, quoting Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2465]), a sentence 

that is the functional equivalent of LWOP under Caballero is subject to the 

strictures of Miller just as it is subject to the rule of Graham. In short, a juvenile 

may not be sentenced to the functional equivalent of LWOP for a homicide 

offense without the protections outlined in Miller. 

IV.

As noted, Franklin would first become eligible for parole at age 66 under 

the sentence imposed by the trial court. That sentence was mandatory; the trial 

court had no discretion to consider Franklin‘s youth as a mitigating factor. 

According to Franklin, the 50-year-to-life sentence means he will not experience 

any substantial period of normal adult life; instead, he will either die in prison or 

have the possibility of geriatric release. He contends that his sentence is the 

―functional equivalent‖ of LWOP (Caballero, supra, 55 Cal.4th at p. 268) and that 

it was imposed without the protections set forth in Miller.

After Franklin‘s sentencing, the Legislature passed Senate Bill No. 260, 

which became effective January 1, 2014, and added sections 3051, 3046, 
14

subdivision (c), and 4801, subdivision (c) to the Penal Code. The Attorney 

General contends these new provisions entitle Franklin to a parole hearing during 

his 25th year in prison and thus renders moot any infirmity in Franklin‘s sentence 

under Miller. We agree with the Attorney General: Senate Bill No. 260 has 

mooted Franklin‘s claim under Miller. As explained below, section 3051 has

superseded Franklin‘s sentence so that notwithstanding his original term of 50 

years to life, he is eligible for a ―youth offender parole hearing‖ during the 25th 

year of his sentence. Crucially, the Legislature‘s recent enactment also requires 

the Board not just to consider but to ―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).) For those juvenile offenders eligible for 

youth offender parole hearings, the provisions of Senate Bill No. 260 are designed 

to ensure they will have a meaningful opportunity for release no more than 25 

years into their incarceration. 

Our interpretation of section 3051 begins with the recognition that the 

Legislature passed Senate Bill No. 260 explicitly to bring juvenile sentencing into 

conformity with Graham, Miller, and Caballero. Section 1 of the enactment states

in part: ―The purpose of this act is 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 the decision of the 

California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 and the 

decisions of the United States Supreme Court in Graham v. Florida (2010) 560 

U.S. 48, and Miller v. Alabama (2012) 183 L.E.2d 407. . . . It is the intent of the 

Legislature to create a process by which growth and maturity of youthful offenders 

can be assessed and a meaningful opportunity for release established.‖ (Stats. 
15

2013, ch. 312, § 1.) Since its passage, the statute and associated Penal Code 

provisions have been amended to apply to offenders sentenced to state prison for 

crimes committed when they were under 23 years of age. (Stats. 2015, ch. 471.)

At the heart of Senate Bill No. 260 was the addition of section 3051, which 

requires the Board to conduct a ―youth offender parole hearing‖ during the 15th, 

20th, or 25th year of a juvenile offender‘s incarceration. (§ 3051, subd. (b).) The 

date of the hearing depends 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).) A juvenile offender 

whose controlling offense carries a term of 25 years to life or greater is ―eligible 

for release on parole by the board during his or her 25th year of incarceration at a 

youth offender parole hearing, unless previously released or entitled to an earlier 

parole consideration hearing pursuant to other statutory provisions.‖ (Id., 

subd. (b)(3).) The statute excludes several categories of juvenile offenders from 

eligibility for a youth offender parole hearing: those who are sentenced under the 

Three Strikes Law (§§ 667, subds. (b)–(i), 1170.12) or Jessica‘s Law (§ 667.61), 

those who are sentenced to life without parole, and those who commit another 

crime ―subsequent to attaining 23 years of age . . . for which malice aforethought 

is a necessary element of the crime or for which the individual is sentenced to life 

in prison.‖ (§ 3051, subd. (h); see Stats. 2015, ch. 471, § 1 [changing the age after 

which malice aforethought crimes are disqualifying from 18 to 23].)

Section 3051 thus reflects the Legislature‘s judgment that 25 years is the 

maximum amount of time that a juvenile offender may serve before becoming 

eligible for parole. Apart from the categories of offenders expressly excluded by 

the statute, section 3051 provides all juvenile offenders with a parole hearing 

during or before their 25th year of incarceration. The statute establishes what is, 

in the Legislature‘s view, the appropriate time to determine whether a juvenile 
16

offender has ―rehabilitated and gained maturity‖ (Stats. 2013, ch. 312, § 1) so that 

he or she may have ―a meaningful opportunity to obtain release‖ (§ 3051, 

subd. (e)).

Sections 3051 and 3046 have thus superseded the statutorily mandated 

sentences of inmates who, like Franklin, committed their controlling offense 

before the age of 18. The 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. Section 3051, subdivision (b) 

makes eligible all persons ―convicted of a controlling offense that was committed 

before the person had attained 23 years of age.‖ In addition, section 3051, 

subdivision (i) says: ―The board shall complete all youth offender parole hearings 

for individuals who become entitled to have their parole suitability considered at a 

youth offender parole hearing on the effective date of this section by July 1, 

2015.‖ This provision would be meaningless if the statute did not apply to 

juvenile offenders already sentenced at the time of enactment.

The Legislature did not envision that the original sentences of eligible 

youth offenders would be vacated and that new sentences would be imposed to 

reflect parole eligibility during the 15th, 20th, or 25th year of incarceration. The 

continued operation of the original sentence is evident from the fact that an inmate 

remains bound by that sentence, with no eligibility for a youth offender parole 

hearing, if ―subsequent to attaining 23 years of age‖ the inmate ―commits an 

additional crime for which malice aforethought is a necessary element . . . or for 

which the individual is sentenced to life in prison.‖ (§ 3051, subd. (h); Stats. 

2015, ch. 471.) But section 3051 has changed the manner in which the juvenile 

offender‘s original sentence operates by capping the number of years that he or 

she may be imprisoned before becoming eligible for release on parole. The 

Legislature has effected this change by operation of law, with no additional 
17

resentencing procedure required. (Cf. State v. Mares (Wyo. 2014) 335 P.3d 487, 

498 [holding that a similar statute had ―converted‖ juvenile offenders‘ sentences 

―by the operation of the amended statutes‖ regardless of when those juveniles 

were originally sentenced, and that no judicial intervention was required to 

effectuate their new parole eligibility].)

In this case, the trial court sentenced Franklin to a mandatory term of 25 

years to life under section 190 for first degree murder and to a consecutive 

mandatory term of 25 years to life under section 12022.53 on the firearm 

enhancement. Either the homicide offense or the firearm enhancement could be 

considered the ―controlling offense‖ under section 3051, subdivision (a)(2)(B). 

Regardless of which is considered controlling, Franklin is a ―person who was 

convicted of a controlling offense that was committed before the person had 

attained 23 years of age and for which the sentence is a life term of 25 years to 

life.‖ (§ 3051, subd. (b)(3).) As such, Franklin ―shall be eligible for release on 

parole by the board during his . . . 25th year of incarceration at a youth offender 

parole hearing.‖ (Ibid.)

Franklin does not argue that a life sentence with parole eligibility during his 

25th year of incarceration, when he will be 41 years old, is the functional 

equivalent of LWOP. We conclude that such a sentence is not the functional 

equivalent of LWOP, and we are not aware of any court that has so held. Instead, 

Franklin urges us to conclude that his 50-year-to-life sentence is the functional 

equivalent of LWOP and, in light of that conclusion, to ―construe [section 

12022.53, subdivision (h)‘s] prohibition on striking section 12022.53 

enhancements as inapplicable to cases involving juvenile offenders, in which 

imposition of the enhancement would result in a functional life without parole 

sentence.‖ He seeks relief in the form of resentencing whereby the trial court 

would strike the firearm enhancement and impose only a single term of 25 years to 
18

life for the first degree murder. But we see no basis for rewriting section 

12022.53, subdivision (h)‘s prohibition on striking firearm allegations in light of 

the Legislature‘s determination that inmates such as Franklin, despite the 

mandatory character of their original sentences, are now entitled to a youth 

offender parole hearing during their 25th year of incarceration. Even if section 

12022.53, subdivision (h) could be construed to authorize the trial court to strike 

the firearm enhancement, it is not clear how the imposition of a single term of 25 

years to life for first degree murder would put Franklin in a better or different 

position, from the standpoint of Miller‘s concerns, than section 3051‘s 

requirement of a youth offender parole hearing during his 25th year of 

incarceration.

In sum, the combined operation of section 3051, section 3046, subdivision 

(c), and section 4801 means that Franklin is now serving a life sentence that 

includes a meaningful opportunity for release during his 25th year of 

incarceration. Such a sentence is neither LWOP nor its functional equivalent. 

Because Franklin is not serving an LWOP sentence or its functional equivalent, no 

Miller claim arises here. The Legislature‘s enactment of Senate Bill No. 260 has 

rendered moot Franklin‘s challenge to his original sentence under Miller.

Our mootness holding is limited to circumstances where, as here, section 

3051 entitles an inmate to a youth offender parole hearing against the backdrop of 

an otherwise lengthy mandatory sentence. We express no view on Miller claims 

by juvenile offenders who are ineligible for such a hearing under section 3051, 

subdivision (h), or who are serving lengthy sentences imposed under discretionary 

rather than mandatory sentencing statutes.

V.

Franklin and amicus curiae Post-Conviction Justice Project of the 

University of Southern California Gould School of Law (PCJP) advance a number 
19

of arguments against the conclusion that his Miller claim is moot. In addition, 

Franklin has requested that we take judicial notice of four amicus curiae briefs 

filed in In re Alatriste (review granted Feb. 19, 2014, S214652) and In re Bonilla

(review granted Feb. 19, 2014, S214960). ―  ̳A court may take judicial notice of 

the [e]xistence of each document in a court file, but can only take judicial notice of 

the truth of facts asserted in documents such as orders, findings of fact and 

conclusions of law, and judgments.‘ ‖ (Day v. Sharp (1975) 50 Cal.App.3d 904, 

914, italics omitted; see Evid. Code, § 452, subd. (d) [―Records of . . . any court of 

this state‖ are among the matters that may be judicially noticed].) Because 

Franklin does not argue that the existence (as opposed to the content) of these 

briefs is relevant here, we deny his request for judicial notice.

A.

Franklin relies on our reasoning in People v. Gutierrez (2014) 58 Cal.4th 

1354, 1386–1387 (Gutierrez), that the availability of a procedure under section 

1170, subdivision (d)(2) to petition for recall an LWOP sentence after a juvenile 

offender has served 15 years in prison does not remedy the constitutional difficulty 

under Miller of applying a presumption in favor of LWOP under section 190.5, 

subdivision (b) in cases of special circumstance murder. In Gutierrez, the 

Attorney General argued that section 1170, subdivision (d)(2) ―eliminate[d] any 

constitutional problems‖ arising from an otherwise unconstitutional LWOP 

sentence because the possibility of recall and resentencing converted the juvenile‘s 

sentence to a term other than LWOP. (Gutierrez, supra, 58 Cal.4th at p. 1384.) 

We rejected this contention and held that ―Graham spoke of providing juvenile 

offenders with a  ̳meaningful opportunity to obtain release‘ as a constitutionally 

required alternative to — not as an after-the-fact corrective for —  ̳making the 

judgment at the outset that those offenders never will be fit to reenter society.‘ ‖ 

(Gutierrez, supra, 58 Cal.4th at p. 1386, quoting Graham, supra, 560 U.S. at 
20

p. 75.) According to Franklin, section 3051, like section 1170, subdivision (d)(2), 

does not satisfy the mandate of Miller because it permits a trial court to abdicate 

its responsibility to ensure that a juvenile offender‘s sentence comports with the 

Eighth Amendment ―  ̳at the outset.‘ ‖ (Gutierrez, supra, 58 Cal.4th at p. 1386, 

quoting Graham, supra, 560 U.S. at p. 75.) 

But this argument misses a crucial difference between section 3051 and 

section 1170, subdivision (d)(2). Section 1170, subdivision (d)(2)(A)(i) provides 

that a juvenile offender sentenced to LWOP may, after serving at least 15 years of 

that sentence, ―submit to the sentencing court a petition for recall and 

resentencing.‖ If sentencing court determines ―by a preponderance of the 

evidence that the statements in the petition are true,‖ the court ―shall hold a 

hearing to consider whether to recall the sentence . . . and to resentence the 

defendant‖ to a term not exceeding that of the defendant‘s original sentence. 

(§ 1170, subd. (d)(2)(E).) In deciding whether to recall the sentence and 

resentence the defendant, the statute instructs the court to consider a variety of 

factors addressing his culpability for the original offense and efforts toward 

rehabilitation. (§ 1170, subd. (d)(2)(F).) If the court does not recall the sentence, 

the defendant may petition again after serving 20 years and, if unsuccessful, again 

after serving 24 years. (§ 1170, subd. (d)(2)(H).)

Section 3051, by contrast, effectively reforms the parole eligibility date of a 

juvenile offender‘s original sentence so that the longest possible term of 

incarceration before parole eligibility is 25 years. Section 1170, subdivision (d)(2) 

has no similar effect on a juvenile offender‘s LWOP sentence; it provides that a 

juvenile offender may, after serving 15 years of an LWOP sentence, petition a 

court for recall of the original sentence. In Gutierrez, the trial court had imposed 

an LWOP sentence without considering youth-based mitigating factors in the 

manner required by Miller; Gutierrez was sentenced under a scheme that 
21

presumed his incorrigibility ―  ̳at the outset,‘ ‖ and the resulting sentence would 

remain in effect unless and until he filed a successful petition for recall. 

(Gutierrez, supra, 58 Cal.4th at p. 1386–1387; see id. at p. 1386 [―A sentence of 

life without parole under section 190.5(b) remains fully effective after the 

enactment of section 1170(d)(2).‖].) Franklin is not subject to a sentence that 

presumes his incorrigibility; by operation of law, he is entitled to a parole hearing 

and possible release after 25 years of incarceration. Unlike Gutierrez, Franklin is 

not serving an LWOP sentence or its functional equivalent, so the constitutional 

requirements for properly evaluating a juvenile offender‘s incorrigibility ―  ̳at the 

outset‘ ‖ do not apply here. (Ibid.)

B.

Franklin contends that because ―the youthful parole hearing system is 

completely administrative,‖ it cannot fulfill Miller‘s mandate that a judge consider 

the relevance of his youth for sentencing. But the relief Franklin himself seeks —

a remand for resentencing to a single term of 25 years to life on the murder charge 

— would still mean that his ultimate release date will be determined by an 

administrative decisionmaker. Miller did not restrict the ability of states to impose 

life with parole sentences on juvenile offenders; such sentences necessarily 

contemplate that a parole authority will decide whether a juvenile offender is 

suitable for release.

C.

Although nothing in Miller prohibits reliance on an administrative hearing 

to determine Franklin‘s ultimate release date, Franklin contends that the statutory 

scheme does not set forth adequate procedures to ensure a ―meaningful 

opportunity for release‖ (§ 3051, subd. (e)) and that his sentence, even with parole 

eligibility during his 25th year of incarceration, thus remains the functional 

equivalent of a mandatory LWOP sentence imposed in violation of Miller. Senate 
22

Bill No. 260 directs the administrative entity that will determine if and when 

Franklin is released to ―give great weight‖ (§ 4801, subd. (c)) to the salient 

characteristics of youth outlined in Miller, Graham, and Caballero. Franklin 

argues 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 the offense 

was committed 25 years prior.‖

Franklin notes that his own sentencing proceeding resulted in a record that 

may be incomplete or missing mitigation information because the trial court 

deemed such information irrelevant to its pronouncement of his mandatory 

sentence. Franklin was sentenced in 2011, before the high court‘s decision in 

Miller and before our Legislature‘s enactment of Senate Bill No. 260 in response 

to Miller, Graham, and Caballero. When Franklin‘s attorney did not receive a 

probation report until the morning of sentencing, the trial court acknowledged that 

this delay would ordinarily merit a continuance. But the court, recognizing that it 

lacked discretion in sentencing Franklin, proceeded with sentencing and allowed 

the defense to submit mitigation information at a later date. At the post sentencing

hearing where these materials were submitted, Franklin‘s attorney raised concerns 

about the record at his eventual parole hearing. In response, the trial court said, ―it 

sort of doesn‘t matter because the statute mandates the sentence here. So there‘s 

no basis and occasion for any findings to be made on aggravation and mitigation at 

all.‖ The court eventually admitted a mitigating statement submitted by Franklin 

and a handwritten note from his mother. But the court expressed ―misgiving‖ that 

because of the mandatory sentences, ―[a]t no point in the process is anyone, other 

than the district attorney‘s office, ever able to really consider that this is a 

juvenile.‖
23

The Legislature has declared that ―[t]he youth offender parole hearing to 

consider release shall provide for a meaningful opportunity to obtain release‖ 

(§ 3051, subd. (e)) and that in order to provide such a meaningful opportunity, the 

Board ―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‖ (§ 4801, subd. (c)). These statutory provisions echo 

language in constitutional decisions of the high court and this court. (See Miller, 

supra, 567 U.S. at p. __ [132 S.Ct. at p. 2468] [―chronological age and its 

hallmark features‖]; Graham, supra, 560 U.S. at p. 75 [―meaningful opportunity to 

obtain release‖]; Roper, supra, 543 U.S. at p. 571 [―diminished culpability of 

juveniles‖]; accord, Caballero, supra, 55 Cal.4th at p. 268, fn. 4.) The core 

recognition underlying this body of case law is that children are, as a class, 

―constitutionally different from adults‖ due to ―distinctive attributes of youth‖ that 

―diminish the penological justifications for imposing the harshest sentences on 

juvenile offenders.‖ (Miller, at p. __ [132 S.Ct. at p. 2458].) Among these 

―hallmark features‖ of youth are ―immaturity, impetuosity, and failure to 

appreciate risks and consequences,‖ as well as the capacity for growth and change. 

(Id. at pp. __, __ [132 S.Ct. at pp. 2465, 2468].) It is because of these ―marked 

and well understood‖ differences between children and adults (Roper, at p. 572)

that the law categorically prohibits the imposition of certain penalties, including 

mandatory LWOP, on juvenile offenders. (Montgomery v. Louisiana (2016) 577 

U.S.__, __–__ [136 S.Ct. 718, 732–737].)

In directing the Board to ―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‖ (§ 4801, subd. (c)), the 

statutes also contemplate that information regarding the juvenile offender‘s 

characteristics and circumstances at the time of the offense will be available at a 
24

youth offender parole hearing to facilitate the Board‘s consideration. For 

example, section 3051, subdivision (f)(2) provides that ―[f]amily members, 

friends, school personnel, faith leaders, and representatives from communitybased organizations with knowledge about the individual before the crime . . . may 

submit statements for review by the board.‖ 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. In addition, section 3051, subdivision (f)(1) 

provides that any ―psychological evaluations and risk assessment instruments‖ 

used by the Board in assessing growth and maturity ―shall take into consideration 

. . . any subsequent growth and increased maturity of the individual.‖ 

Consideration of ―subsequent growth and increased maturity‖ implies the 

availability of information about the offender when he was a juvenile. 

It is not clear whether Franklin had sufficient opportunity to put on the 

record the kinds of information that sections 3051 and 4801 deem relevant at a 

youth offender parole hearing. Thus, although Franklin need not be resentenced 

— as explained (ante, at pp. 14–20), Franklin‘s two consecutive 25-year-to-life 

sentences remain valid, even though section 3051, subdivision (b)(3) has altered 

his parole eligibility date by operation of law — we remand 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.

If the trial court determines that Franklin did not have sufficient 

opportunity, then the court may receive submissions and, if appropriate, testimony 

pursuant to procedures set forth in section 1204 and rule 4.437 of the California 

Rules of Court, and subject to the rules of evidence. Franklin may place on the 
25

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. 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 (§ 4801, subd. (c)) in determining whether the offender is ―fit to rejoin 

society‖ despite having committed a serious crime ―while he was a child in the 

eyes of the law‖ (Graham, supra, 560 U.S. at p. 79).

D.

Finally, amicus curiae PCJP contends that despite the announced purpose 

of Senate Bill No. 260, youth offender parole hearings will not, in practice, ―afford 

the juvenile offender a  ̳meaningful opportunity to obtain release based on 

demonstrated maturity and rehabilitation‘ ‖ (Caballero, supra, 55 Cal.4th at 

p. 266, quoting Graham, supra, 560 U.S. at p. 73) and therefore cannot render 

moot a Miller challenge to a lengthy mandatory sentence that is functionally 

equivalent to LWOP. PCJP‘s argument subsumes several concerns distinct from 

those we have considered above. 

First, although the Governor, like the Board, is required to ―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); see Cal. 

Const., art. V, § 8; Pen. Code, § 3041.2; In re Rosenkrantz (2002) 29 Cal.4th 616, 

664), PCJP notes that the Governor, in reviewing Board decisions that find 

persons serving an indeterminate term for murder suitable for parole, has 
26

historically reversed such decisions at a very high rate. Second, PCJP observes 

that judicial review of parole denials is ―highly deferential‖ and limited to 

determining ―whether a modicum of evidence supports the parole suitability 

decision.‖ (In re Shaputis (2011) 53 Cal.4th 192, 221.) Third, PCJP contends that 

some of the suitability criteria used by the Board run counter to the high court‘s 

observations concerning the mitigating attributes of youth. For example, a finding 

that ―[t]he motive for the crime is inexplicable or very trivial in relation to the 

offense‖ is a factor tending to show unsuitability (Cal. Code Regs., tit. 15, § 2281, 

subd. (c)(1)(E)), even though ―such a motive correlates with hallmark features of 

youth like  ̳impetuosity, and failure to appreciate risks and consequences.‘ ‖ An 

unstable social history also counts against suitability (id., subd. (c)(3)), even 

though youth ―  ̳are more vulnerable . . . to negative influences and outside 

pressures . . . [,] have limited control over their own environment and lack the 

ability to extricate themselves from horrific, crime-producing settings.‘ (Miller, 

supra, at p. __ [132 S.Ct. at p. 2464].)‖ Fourth, PCJP argues that developing a 

record of mitigation focused on youth-related attributes for the purpose of a youth 

offender parole hearing is ―unachievable in practice‖ given resource constraints. 

And fifth, PCJP contends that juvenile offenders serving lengthy sentences have 

little access to education and rehabilitative programs that may serve to forestall 

―the perverse consequence in which the lack of maturity that led to an offender‘s 

crime is reinforced by the prison term.‖ (Graham, supra, 560 U.S. at p. 79.) 

We have no occasion in this case to express any view on the concerns 

raised by PCJP. As noted, the Legislature enacted Senate Bill No. 260 with ―the 

intent . . . to create a process by which growth and maturity of youthful offenders 

can be assessed and a meaningful opportunity for release established.‖ (Stats. 

2013, ch. 312, § 1.) Section 4801, subdivision (c) directs that the Board, in 

conducting a youth offender parole hearing, ―shall give great weight to the 
27

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.‖ And section 3051, subdivision (e) says: ―The 

youth offender parole hearing to consider release shall provide for a meaningful 

opportunity to obtain release. The board shall review and, as necessary, revise 

existing regulations and adopt new regulations regarding determinations of 

suitability made pursuant to this section, subdivision (c) of Section 4801, and other 

related topics, consistent with relevant case law, in order to provide that 

meaningful opportunity for release.‖

As of this writing, the Board has yet to revise existing regulations or adopt 

new regulations applicable to youth offender parole hearings. In advance of 

regulatory action by the Board, and in the absence of any concrete controversy in 

this case concerning suitability criteria or their application by the Board or the 

Governor, it would be premature for this court to opine on whether and, if so, how 

existing suitability criteria, parole hearing procedures, or other practices must be 

revised to conform to the dictates of applicable statutory and constitutional law. 

So long as juvenile offenders have an adequate opportunity to make a record of 

factors, including youth-related factors, relevant to the eventual parole 

determination, we cannot say at this point that the broad directives set forth by 

Senate Bill No. 260 are inadequate to ensure that juvenile offenders have a 

realistic and meaningful opportunity to obtain release based on demonstrated 

maturity and rehabilitation.

CONCLUSION

The high court has made clear that ―imposition of a State‘s most severe 

penalties on juvenile offenders cannot proceed as though they were not children.‖ 

(Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2466].) ―It is for the State, in the 

first instance, to explore the means and mechanisms for compliance‖ with this 
28

directive. (Graham, supra, 560 U.S. at p. 75.) The Legislature has devised such a 

means by enacting section 3051 and related statutes in Senate Bill No. 260. Those 

statutes have effectively reformed Franklin‘s statutorily mandated sentence so that 

he will become eligible for parole, at a hearing that must give great weight to 

youth-related mitigating factors, during his 25th year of incarceration. By 

operation of law, Franklin‘s sentence is not functionally equivalent to life without 

parole, and the record here does not include evidence that the Legislature‘s 

mandate that youth offender parole hearings must provide for a meaningful 

opportunity to obtain release is unachievable in practice. We thus conclude that 

Franklin‘s Eighth Amendment challenge to his original sentence has been 

rendered moot.

For the reasons above, we affirm Franklin‘s sentence but remand the matter 

to the Court of Appeal with instructions to remand to the trial court for the limited 

purpose of determining whether Franklin was afforded an adequate opportunity to 

make a record of information that will be relevant to the Board as it fulfills its 

statutory obligations under sections 3051 and 4801.

LIU, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.
1

CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.

Defendant Tyris Lamar Franklin was sentenced to prison for a term of 50 

years to life for his conviction of first degree murder using a firearm (Pen. Code, 

§§ 187, 12022.53),

1 committed when he was 16 years old. I agree with the 

majority that the question whether his sentence may be considered the equivalent 

of life in prison with no possibility of parole (LWOP), and thus subject to United 

States Constitution Eighth Amendment limits (Miller v. Alabama (2012) 567 U.S. 

___ [183 L.Ed.2d 407, 132 S.Ct. 2455] (Miller)), is moot following the 

Legislature‘s passage of legislation giving defendant the opportunity for a youth 

offender parole hearing after 25 years of incarceration. 

I part company with the majority over its further conclusion that we must 

remand the case ―for a determination of whether Franklin was afforded sufficient 

opportunity to make a record of information relevant to his eventual youth 

offender parole hearing.‖ (Maj. opn., ante, at p. 24.) Notably, the majority does 

not claim a remand for what might be termed a ―baseline hearing‖ is 

constitutionally mandated by Miller, supra, 567 U.S. ___ [183 L.Ed.2d 407, 132 

S.Ct. 2455]. Rather, the premise of the majority‘s remand for a baseline hearing is 

statutory. No statute, of course, specifically authorizes such hearings. The 

 

1 All further statutory references are to the Penal Code.
2

majority, however, reasons that because the statutory scheme directs the Board of 

Parole Hearings (Board) to give ―great weight to . . . any subsequent growth and 

increased maturity of the prisoner‖ (§ 4801, subd. (c)), the statutes ―contemplate 

. . . information regarding the juvenile offender‘s characteristics and circumstances 

at the time of the offense will be available.‖ (Maj. opn., ante, p. 23.)

The Legislature‘s charge to the Board at future youth offender parole 

hearings is to give the individual ―a meaningful opportunity to obtain 

release.‖ (§ 3051, subd. (e).) To this end, the Board ―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 in 

accordance with relevant case law.‖ (§ 4801, subd. (c), italics added.) Family 

members and others ―with knowledge about the individual before the crime or his 

or her growth and maturity since the time of the crime may submit statements for 

review by the board.‖ (§ 3051, subd. (f)(2).) But to ―contemplate‖ that such 

information may be taken into consideration is not to mandate procedures to 

enable the offender at the time of sentence or, for those sentenced before 

enactment of the statute, years after judgment is final, to make a record of such 

information, including live testimony and the opportunity for cross-examination, 

in effect a new sentence hearing. No ―relevant case law‖ (§ 3051, subd. (e); 

§ 4801, subd. (c)) so requires. Indeed, what case law establishes is that youth and 

immaturity differentiate juvenile offenders from adults and must be taken into 

account in connection with sentencing; youthful offenders should not be viewed as 

incorrigible, but subject to growth and maturity. (Miller, supra, 567 U.S. ___ at 

p. ___ [183 L.Ed.2d at pp. 419, 420, 132 S.Ct. at p. 2465] [a finding of 

incorrigibility is ―  ̳ ―inconsistent with youth‖ ‘ ‖ and ―at odds with a child‘s 

capacity for change‖]; Graham v. Florida (2010) 560 U.S. 48, 74 [LWOP is 

incompatible with juvenile offender‘s ―capacity for change‖].) Statutory 
3

authorization for the Board, in its discretion, to use ―psychological evaluations and 

risk assessment instruments‖ administered by licensed psychologists (§ 3051, 

subd. (f)(1)) supports the conclusion the Legislature intended the Board‘s focus to 

be on the prisoner‘s current circumstances, his or her maturity and efforts at 

rehabilitation, irrespective of the particular factors that may have influenced him 

or her at the time of the offense. Such assessments and evaluations are viewed as 

informative of themselves without regard to any baseline of the individual 

offender.

In sum, I am unpersuaded a youthful offender will be deprived of a 

―meaningful opportunity to obtain release‖ (§ 3051, subd. (e)), or that the Board 

will be unable to fairly consider a youthful offender‘s diminished culpability, later 

growth, or increased maturity (§ 4801, subd. (c)), unless we impose on the trial 

courts a new, judicially created, extra statutory procedure entitling such offenders 

to a type of penalty phase trial, replete with opposing experts and family members 

and friends, subject to cross-examination, testifying to the offender‘s youthful 

immaturity. The statutory scheme, in my view, does not bear the weight of the 

majority‘s conclusion that such a hearing is required to effectuate its purpose of 

affording a youthful offender a meaningful opportunity to obtain release. Rather, 

in borrowing the ―diminished culpability‖ of juveniles and the ―hallmark features‖

of youth language from Miller, supra, 567 U.S. at pages ___ and ___ [183 L.Ed.2d 

at pp. 418 & 423, 132 S.Ct. at pp. 2464 & 2468], and inserting it in section 4801, 

subdivision (c), the Legislature signaled its agreement with the United States 

Supreme Court that those factors are inherent in juveniles and are generally 

deemed to mitigate the culpability of a juvenile who has committed a severe 

crime. The focus of the statutory scheme is the psychological growth and 

―increased maturity‖ of the youthful offender (§ 4801, subd. (c)), now an adult, as 

manifested by his or her behavior and efforts to rehabilitate himself or herself 
4

during his incarceration, as against his or her presumed immaturity at the time of 

the offense.

Had the Legislature intended—or ―contemplated,‖ as the majority fashions 

it—that a youthful offender at the time of his or her sentencing (or thereafter if 

sentence was imposed before enactment of the statute) would have the opportunity 

to make a record of his or her character and the influences and circumstances of 

the offense in order to provide a meaningful opportunity for future parole, it surely 

would have said so. Instead, it provided the offender the opportunity at the time of 

the hearing to submit, in the form of ―statements‖ (§ 3051, subd. (f)(2)), such 

information as may be available, and provided the Board the option to consider the 

results of psychological testing (id., subd. (f)(1)). Absent more specific legislative 

authorization, I disagree with my colleagues that, in order to effectuate the 

Legislature‘s purpose,2 we must now remand the case to permit the trial court to 

determine whether defendant ―was afforded an adequate opportunity to make a 

record of information that will be relevant [in a future parole hearing].‖ (Maj. 

opn., ante, p. 28.)

Unless we find the Legislature‘s statutory response to Miller, supra, 567 

U.S. ___ [183 L.Ed.2d 407, 132 S.Ct. 2455], failed to cure the potential Eighth 

 

2 The preface to the relevant legislation declared in pertinent part: ―The 

purpose of this act is 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 the decision of the California 

Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 and the decisions of 

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

Miller v. Alabama (2012) 183 L.Ed.2d 407.‖ (Stats. 2013, ch. 312, § 1.) Further: 

―It is the intent of the Legislature to create a process by which growth and 

maturity of youthful offenders can be assessed and a meaningful opportunity for 

release established.‖ (Ibid.)
5

Amendment problem associated with imposing an LWOP term (or its equivalent) 

on a juvenile offender, or that the current scheme would be absurd without 

providing youthful offenders with a baseline hearing (Ennabe v. Manosa (2014) 

58 Cal.4th 697, 721 [courts will not give statutes a literal meaning if doing so 

leads to absurd consequences]), we should not rewrite the statute to provide for 

such hearings. ―  ̳[A]s this court has often recognized, the judicial role in a 

democratic society is fundamentally to interpret laws, not to write them. The latter 

power belongs primarily to the people and the political branches of government

. . . .‘ [Citation.] It cannot be too often repeated that due respect for the political 

branches of our government requires us to interpret the laws in accordance with 

the expressed intention of the Legislature.  ̳This court has no power to rewrite the 

statute so as to make it conform to a presumed intention which is not expressed.‘ ‖ 

(California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 

14 Cal.4th 627, 633.)

I have no doubt that affording youthful life prisoners the opportunity for a 

baseline hearing could well inure to their benefit in any future parole hearing. For 

that reason, we may now anticipate petitions for such hearings will be filed in 

numerous courts throughout California as juvenile life prisoners (and those 

youthful offenders who have been sentenced to the equivalent of LWOP) seek to 

take advantage of this court‘s ruling. Indeed, holding periodic update hearings to 

evaluate a youthful offender‘s progress towards parole suitability would also be 

beneficial. So, too, might it be for adult offenders. But this court is not authorized 

to create and require such procedures simply because they might be a good idea.

In short, judicial restraint counsels that we hesitate to create on our own 

initiative new procedural rules neither constitutionally nor legislatively required in 

the guise of implementing an unexpressed legislative intent. The Legislature is in 

the best position, as the Board begins to discharge its responsibilities under the 
6

new youth offender parole hearing statutes, to consider and implement any new 

evidentiary procedures that experience may suggest would be necessary or 

desirable.

Because I believe a failure to remand and give defendant the opportunity to 

present evidence in a baseline hearing would not render his sentence 

unconstitutional under Miller, supra, 567 U.S. ___ [183 L.Ed.2d 407, 132 S.Ct. 

2455] or the Eighth Amendment, and because I see no evidence in the statutory 

scheme the Legislature intended to create such procedures, I respectfully dissent 

from that part of the majority‘s decision remanding the case for a baseline hearing. 

The Legislature, of course, remains free to amend the pertinent statutes to 

specifically authorize such hearings.

WERDEGAR, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Franklin

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 224 Cal.App.4th 296

Rehearing Granted

__________________________________________________________________________________

Opinion No. S217699

Date Filed: May 26, 2016

__________________________________________________________________________________

Court: Superior

County: Contra Costa

Judge: Leslie G. Landau

__________________________________________________________________________________

Counsel:

Gene D. Vorobyov, under appointment by the Supreme Court, for Defendant and Appellant.

Frank C. Newman International Human Rights Law Clinic, Constance de la Vega; Sheppard, Mullin, 

Richter & Hampton and Neil A.F. Popović for Human Rights Advocates as Amicus Curiae on behalf of 

Defendant and Appellant.

Heidi L. Rummel and Kristen Bell for Post-Conviction Justice Project as Amicus Curiae on behalf of 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistants Attorney 

General, Jeffrey M. Laurence, Assistant Attorney General, Rene A. Chacon, Laurence K. Sullivan and 

Juliet B. Haley, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Gene D. Vorobyov

Law Office of Gene Vorobyov

450 Taraval Street, #112

San Francisco, CA 94116

(415) 425-2693

Juliet B. Haley

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-5960