Filed 1/20/21 P. v. Magana CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE JAVIER MAGANA,

Defendant and Appellant.

 B300733

 (Los Angeles County

 Super. Ct. No. BA416716)

APPEAL from an order of the Superior Court of Los 

Angeles County, Douglas Sortino, Judge. Reversed and 

remanded with directions.

Steven A. Brody, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill, Supervising Deputy 
2

Attorney General, and Nima Razfar, Deputy Attorney General, 

for Plaintiff and Respondent.
3

Defendant Jose Magana (defendant) appeals from an order 

denying his motion for a youth offender evidence preservation 

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

(Franklin), People v. Cook (2019) 7 Cal.5th 439 (Cook), and Penal 

Code1section 1203.01. The Attorney General concedes the trial 

court erred in concluding it did not have authority to entertain 

defendant’s motion, but defendant and the Attorney General 

disagree about the appropriate remedy. We consider whether the 

case should be remanded with instructions to grant the motion 

(defendant’s position) or remanded to allow the trial court to 

consider the motion and exercise its informed discretion in 

deciding whether to grant it (the Attorney General’s position). 

I. BACKGROUND

Defendant was convicted of two counts of attempted 

premeditated murder, two counts of assault with a deadly 

weapon, and one count of aggravated mayhem. The jury found 

true special allegations that defendant inflicted great bodily 

injury, personally used a deadly weapon, and committed the 

crimes for the benefit of a criminal street gang. Defendant was 

18 years old at the time of the offense conduct. The trial court 

sentenced defendant to a total of 38 years to life in prison on the 

attempted murder counts.2 

1 Undesignated statutory references that follow are to the 

Penal Code.

2 The trial court stayed the prison terms imposed on the 

remaining counts pursuant to section 654.
4

On direct appeal, defendant argued, among other things, 

that the case should be remanded for a Franklin proceeding,3i.e., 

to give him an opportunity to make a record of information 

relevant to an eventual youth offender parole hearing. (People v. 

Magana (Oct. 18, 2018, B281616) [nonpub. opn.]; see also 

Franklin, supra, 63 Cal.4th at 284.) We affirmed and held, as to 

the Franklin issue, that defendant had already had a sufficient 

opportunity to make such a record (Franklin was decided months 

before his sentencing). 

After our decision on direct appeal and subsequent habeas 

petitions, defendant moved for a Franklin proceeding under 

section 1203.01. As we shall discuss, Cook holds section 1203.01 

is the procedural vehicle by which an offender may request a 

Franklin proceeding after his or her conviction is final. (Cook, 

supra, 7 Cal.5th at 451-452.) The trial court denied the motion, 

finding defendant presented “no facts in support of a Franklin 

hearing in addition to those already present[ed] to and rejected 

by the Court of Appeal” and believing it had “no authority to 

review the decision made by the Court of Appeal.” 

II. DISCUSSION

Viewed in light of the intervening Cook decision and 

another Court of Appeal case, our conclusion that defendant was 

not entitled to a limited remand in his previous appeal does not 

preclude the trial court from considering his section 1203.01 

3 As our Supreme Court explained in Cook, supra, “Franklin

processes are more properly called ‘proceedings’ rather than 

‘hearings.’ A hearing generally involves definitive issues of law 

or fact to be determined with a decision rendered based on that 

determination. [Citation.]” (Cook, supra, 7 Cal.5th at 449, fn. 3.)
5

motion. We will accordingly reverse the order denying 

defendant’s motion and remand for the trial court to exercise its 

discretion as described in Franklin and Cook.

Section 3051, subdivision (b)(3) provides that an individual 

who, like defendant, is 25 years or younger and sentenced to 25 

years to life in prison is entitled to a youth offender parole 

hearing during his or her twenty-fifth year of incarceration. 

(§ 3051, subd. (b)(3).) At a youth offender parole hearing, the 

Board of Parole Hearings may consider statements from the 

defendant’s “[f]amily members, friends, school personnel, faith 

leaders, and representatives from community-based 

organizations with knowledge about the individual before the 

crime or the individual’s growth and maturity since the time of 

the crime.” (§ 3051, subd. (f)(2).) The Board of Parole Hearings is 

required to “give great weight to the diminished culpability of 

youth 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).)

In Franklin, our Supreme Court held a youth offender must 

be afforded “sufficient opportunity to put on the record the kinds 

of information that sections 3051 and 4801 deem relevant at a 

youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at 

284.) “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.” (Id. at 

283-284.)

In Cook, our Supreme Court held the reasoning supporting 

its ruling in Franklin, which involved a defendant’s direct appeal, 
6

also extends to offenders with final convictions. (Cook, supra, 7 

Cal.5th at 451.) The Supreme Court held the procedural vehicle 

by which offenders with already final convictions may seek to 

make a record of information relevant under sections 3051 and 

4801 is a motion under section 1203.01. (Ibid.) That statute 

states a trial court may (and in some instances, must) create a 

post-judgment record for the benefit of the Department of 

Corrections and Rehabilitation. The Supreme Court reasoned 

that although section 1203.01 “specifically mentions statements 

prepared by the court, prosecutor, defense counsel, and 

investigating law enforcement agency[,] . . . the [trial] court has 

inherent authority under Code of Civil Procedure section 187 to 

authorize additional evidence preservation consistent 

with . . . Franklin.” (Cook, supra, 7 Cal.5th at 449.) 

In this case, defendant and the Attorney General agree the 

trial court’s denial of defendant’s section 1203.01 motion should 

be reversed. Our prior opinion resolving defendant’s direct 

appeal pre-dated Cook, and in Cook, the Supreme Court did not 

decide whether a previous opportunity to submit youth-related 

mitigating evidence forecloses making a section 1203.01 motion—

the Cook court was silent on that score. But at least one Court of 

Appeal panel has held, post-Cook, that a previous opportunity to 

submit youth-related mitigating evidence does not stand as a bar 

to making a section 1203.01 motion. (People v. Medrano (2019) 

40 Cal.App.5th 961, 963, 968 [no basis for a remand on direct 

appeal when the defendant was sentenced over a year after 

Franklin and had an opportunity to make a record of mitigating 

youth-related evidence, but judgment affirmed without prejudice 

to the defendant’s prerogative to file a motion for a Franklin 

proceeding under section 1203.01 and Cook].) We agree with the 
7

parties that our prior opinion on direct appeal does not foreclose 

making a section 1203.01 motion for a Franklin proceeding. 

Defendant and the Attorney General differ, however, on the 

directions that should govern our remand to the trial court. 

Defendant contends any denial of his section 1203.01 motion, 

which does not specify the information he seeks to present,4

would be an abuse of discretion. The trial court, however, has 

considerable discretion as to the scope of the Franklin proceeding 

to which defendant is entitled. In Cook, the Supreme Court 

emphasized the trial court’s discretion to ensure the information 

presented is “‘relevant, noncumulative, and otherwise in accord 

with the governing rules, statutes, and regulations.’ [Citation.]” 

(Cook, supra, 7 Cal.5th at 459.) The trial court “may, for 

example, require an offer of proof regarding the evidence the 

offender seeks to present, so that it can determine whether such 

evidence is relevant to youth-related factors and meaningfully 

adds to the already available record. It may also determine 

whether testimony is ‘appropriate’ [citation], or if other types of 

evidentiary submissions will suffice . . . . The court may consider 

whether a Franklin proceeding is likely to produce fruitful 

evidence considering such factors as the passage of time and 

whether the offender has already benefitted from the factfinding 

4 Defendant contends the habeas petition he previously filed 

in this court “provides extensive details of the kind of evidence 

that was available to trial counsel, and which was not presented 

to the court at sentencing.” It is not clear from his section 

1203.01 motion, however, whether this is the only information he 

seeks to present and whether, if so, he seeks to present all of this

information in a Franklin proceeding (and whether he wishes to 

present it in the form of live testimony or letters).
8

procedures” available in a youth offender parole hearing. (Ibid.) 

Because the trial court has not yet considered these issues, the 

trial court on remand shall exercise its informed discretion and 

decide whether defendant should have an opportunity to make a 

record beyond the record he has already made when seeking 

habeas relief.

DISPOSITION

The order denying defendant’s motion for a Franklin 

proceeding under section 1203.01 and Cook is reversed. The 

matter is remanded to the trial court for further proceedings 

consistent with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.