Filed 11/18/21 P. v. Mack CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

EVYN DELAYNE MACK,

Defendant and Appellant.

 B309396

 (Los Angeles County

 Super. Ct. No. MA024413)

APPEAL from an order of the Superior Court of 

Los Angeles County, Ronald S. Coen, Judge. Affirmed.

Spolin Law and Aaron Spolin for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and Chung L. Mar, Deputy 

Attorneys General, for Plaintiff and Respondent.

——————————
2

A jury convicted Evyn Delayne Mack of numerous crimes in 

2003 after he robbed a bank when he was 23 years old. In 2020, 

Mack filed a motion for a Franklin1 proceeding. The trial court 

denied the motion, concluding that Mack was ineligible for a 

youth offender parole hearing under Penal Code2 section 3051, 

subdivision (h) because he was sentenced pursuant to the “Three 

Strikes” law (§§ 667, subds. (b)–(i), 1170.12) and therefore not 

entitled to a Franklin proceeding. Mack contends that this was 

error because eligibility for a youth offender parole hearing is not 

a prerequisite to a Franklin proceeding. For the following 

reasons, we affirm.

BACKGROUND

The following facts are taken from the opinion of a different 

panel of this Division in People v. Washington (2005) 127 

Cal.App.4th 290.

In April 2002, Mack and his codefendant Mark Johahn

Washington committed a take-over robbery of a bank. During 

the robbery, Mack struck a teller in the face and threatened other 

bank employees with what appeared to be a handgun wrapped in 

a bandana. Washington pointed a shotgun at the bank 

manager’s head, demanding that she open the bank vault. Mack 

and Washington took the cash from the vault and fled. (People v. 

Washington, supra, 127 Cal.App.4th at pp. 295–296.)

Shortly after the robbery, sheriff’s deputies found Mack and 

Washington in a house nearby. The deputies recovered $128,835 

in cash, including five marked bills the bank previously had 

1 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).

2 All further statutory references are to the Penal Code. 
3

recorded in the event of a robbery. A loaded shotgun was found 

in the bathroom closet. (People v. Washington, supra, 127 

Cal.App.4th at p. 296.)

An amended information charged Mack with two counts of 

kidnapping to commit robbery (§ 209, subd. (b)(1)), three counts 

of robbery (§ 211), three counts of assault with a firearm (§ 245, 

subd. (a)(2)), and eight counts of false imprisonment by violence 

(§ 236). The amended information also alleged that the offenses 

were committed for the benefit of a criminal street gang 

(§ 186.22, subd. (b)(1)), a principal was armed with a firearm 

(§ 12022, subd. (a)(1)), and each defendant personally used a 

firearm (§ 12022.5, subd. (a)). It was further alleged that Mack 

had a prior strike conviction for assault with a deadly weapon

(§§ 245, subd. (a)(1), 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). 

A jury found Mack guilty as charged. On appeal, our 

Division reversed the convictions of kidnapping to commit

robbery, but otherwise affirmed the judgment and remanded for 

resentencing. (People v. Washington, supra, 127 Cal.App.4th at 

p. 304.) On remand, the trial court sentenced Mack as a second 

striker to a determinate term of 35 years four months in prison. 

In October 2020, Mack requested a Franklin proceeding 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.” The court denied the 

request, finding Mack was ineligible for a youth offender parole 

hearing under section 3051, subdivision (h) because Mack was 

sentenced pursuant to the Three Strikes law, and therefore not 

entitled to a Franklin proceeding. 

Mack appealed. 
4

DISCUSSION

Mack argues the court should have granted his request for 

a Franklin proceeding to afford him the opportunity to preserve 

evidence of the diminished culpability of his youth at the time of 

the bank robbery and subsequent maturity for the Board of 

Parole Hearings (the Board) to consider when he becomes eligible 

for parole. We disagree. 

In response to a series of decisions addressing the Eighth 

Amendment to the United States Constitution’s limits on 

sentencing juveniles to life imprisonment and developments in 

neuroscience that recognized children’s lack of maturity and 

underdeveloped sense of responsibility, our Legislature enacted 

sections 3051 and 4801, subdivision (c). (Franklin, supra, 63 

Cal.4th at pp. 276–277; see Graham v. Florida (2010) 560 U.S. 

48, 69–70; Miller v. Alabama (2012) 567 U.S. 460, 465; People v. 

Caballero (2012) 55 Cal.4th 262, 268.) Section 3051, subdivisions 

(a)(2)(B) and (b)(1) to (4) provides certain youth offenders serving 

life sentences or their functional equivalent with a meaningful

opportunity for release in their 15th, 20th, or 25th year of 

incarceration through the youth offender parole hearing process. 

(Franklin, at p. 277.) To be eligible for the youth offender parole 

hearing process, the youth offender must have committed the

controlling offense when the youth offender was 25 years old or 

younger. (§ 3051, subds. (a)(1), (b)(1).) Section 3051, subdivision 

(h) expressly excludes from the youth offender parole hearing 

process certain categories of youth offenders, including those

“sentenced to life in prison without the possibility of parole for a 

controlling offense that was committed after the person had 

attained 18 years of age” and those sentenced under the “One 
5

Strike” law3 (§ 667.61) and the Three Strikes law (§§ 667, 

1170.12). 

After the enactment of sections 3051 and 4801, 

subdivision (c), our Supreme Court decided Franklin, supra, 63 

Cal.4th 261. Franklin, at page 284, gave a youth offender the 

opportunity to preserve evidence that would be relevant at a 

youth offender parole hearing so that the Board could properly 

discharge its obligation under section 4801, subdivision (c) to give 

great weight to youth-related factors.

Here, Mack concedes his ineligibility for a youth offender 

parole hearing under section 3051, subdivision (h), but argues his 

right to a Franklin proceeding is rooted in the plain language of 

section 4801, subdivision (c) which, irrespective of his eligibility 

for a youth offender parole hearing, requires the Board to give 

great weight to mitigating youth-related evidence when a 

prisoner becomes eligible for parole so long as he committed his 

controlling offense when he was 25 years old or younger. (§ 3051, 

subd. (a).) Mack’s argument is meritless.

In this case, a Franklin proceeding would serve no purpose. 

As Mack concedes, he is ineligible for parole as a youth offender 

under section 3051, subdivision (h) because he was sentenced as 

a second striker. Indeed, Mack is serving a determinate sentence 

and thus will be released upon completion of a fixed term, 

reduced by good time and work time credits under section 2933.

3 There is currently a split in authority whether section 

3051, subdivision (h)’s exclusion of youth offenders sentenced 

under the One Strike law violates equal protection. (Compare 

People v. Miranda (2021) 62 Cal.App.5th 162, 186, review 

granted June 16, 2021, S268384, with People v. Edwards (2019) 

34 Cal.App.5th 183, 199.)
6

(§ 3000, subd. (b)(2).) Though Mack’s ineligibility for a youth 

offender parole hearing may not negate section 4801, subdivision 

(c)’s mandate that the Board give great weight to mitigating 

youth-related evidence, he must still establish that he is eligible 

for a parole hearing where that evidence would be relevant. (See 

In re Brownlee (2020) 50 Cal.App.5th 720, 725.) Mack does not 

claim or establish that there is any process for a parole hearing

prior to the date established by his determinate sentence. 

Because a Franklin proceeding is meant to give offenders the 

opportunity to preserve evidence of mitigating youth-related 

evidence to present to the Board at a parole hearing, eligibility 

for an early parole hearing is prerequisite to a Franklin 

proceeding. (See In re Cook (2019) 7 Cal.5th 439, 451 [“an 

offender entitled to a hearing under sections 3051 and 4801 may 

seek the remedy of a Franklin proceeding”]; see also People v. 

Moore (2021) 68 Cal.App.5th 856, 861 [rejecting defendant’s 

equal protection challenge to section 3051, subdivision (h) and 

affirming trial court’s denial of a request for Franklin proceeding 

because defendant was sentenced under the Three Strikes law].)

The court properly denied Mack’s request for a Franklin

proceeding.
7

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

WINDHAM, J.*

We concur:

EDMON, P. J.

EGERTON, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.