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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B 309396

(Los Angeles County Super. Ct. No. M A 024413 )

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 Franklin 1 proceeding. The trial court denied the motion, concluding that Mack was ineligible for a youth offender parole hearing under Penal Code 2 section 3051

, subdivision (h) because he was sentenced pursuant to the “ Three
Strikes ” l aw (§§ 667, subds. (b)

– (i), 1170.12) and therefore n ot 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 opi nion 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 Joh a h n 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 i nformation 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 a mended 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, subd s . (b)

– (i)

, 1170.12, subd s . (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 det erminate 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 pa role 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 l aw , and therefore not
entitled to a Franklin proceed ing

. 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 Hearing s (the Board) to consider when he becomes eligible for parole. We dis agree. In response to a series of decisions addressing the Eighth
Amendment to the United States Constitution’s limits on
sentenci ng juveniles to life imprisonment and developments in
neuroscience that recogniz ed children’s lack of maturity and underdeveloped sense of responsibility, o ur Legislature enacted sections 3051 and 4801, subdivision (c ). ( Franklin

, supra , 63 Cal.4th at p p

. 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 off ender parole hearing process, the youth offender must have committed the controlling offense when t he youth offender was 25 years old or

younger

. (§ 3051, subds. (a)(1), (b) (1) .) Section 3051, subdivision (h) expressly excludes from the youth offender pa role 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 “ One5

Strike ” l aw 3 (§ 667. 61) and the Three Strikes l aw (§§ 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 ineligib ility 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, require s the Board to give great weight to mitigating yo uth

- related evidence when a prisoner becomes eligible for parole so lon g 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 offend er 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 l aw violate s 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

( § 30 00, subd. ( b ) (2).) Though Mack’s in eligibility 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 eligib le 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 paro le 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 l aw].) The court properly denied Mac k’s request for a Franklin proceeding.7 DISPOSITION

The order is affirmed.
NOT TO BE PUBLISHED.

WINDHAM , J. *

We concur:

EDMON , P. J

.

EGERTO N, J

.

* Judge of the Los Angeles Superior Court , assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.