Filed 7/26/23 P. v. Felix CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FABIAN FELIX,

Defendant and Appellant. D081620

(Super. Ct. No. SWF017408)

APPEAL from an order of the Superior Court of Riverside County,

F. Paul Dickerson

, III , Judge. Reversed and remanded.

Marilee Marshall, under appointment by the Court of Appeal, for

Defendant a nd Appellant.

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

Attorney General, Charles C

. Ragland, Assistant Attorney General,

Christopher P. Beesley and Kristen Kinnaird Chenelia , Deputy Attorney s
General, for Plaintiff and Respondent.2 ME MORANDUM OPINION 1

Defendant Fabian Felix appeals the denial of his motion for a youth

offender evidence preservation proceeding pursuant to People v. Franklin

(2016) 63 Cal.4th 261 ( Franklin )

. The parties agree that the case must be

remanded for a Frankli n proceedin g.
In 2010, Felix was convicted of first

- degree murder with special

circumstances and sentenced to life without the possibility of parole. After

the special circumstances were reversed on appeal, h e was resentenced to 50

years to life. Both the original sentencing and the resentencing occurred

before the Supreme Court decided Franklin in 2016

. In Franklin

, the

Supreme Court h eld that defendants eligible for a future youth offender

parole hearing under Penal Code 2 section 3051 are entitled t o make a record

of mitigating evidence tied to their youth to preserve it for use at such a

future parole hearing

. ( Franklin

, supra , 63 Cal.4th at pp. 283

– 284, 286

. )

“Broadly speaking, a Franklin proceeding allows youth offenders sentenced to

long prison terms an opportunity to introduce into the record mitigating

evidence relating to their youth.” ( People v. Howard (2021) 74 Cal.App.5th

141, 145.)

The record here does not include evidence related to Felix’s status as a
youthful offender because he did n ot present youth

- related mitigating

evidence at his sentencing hearing s , and h e also declined to provide a

statement or social history when interviewed by police. In 2018

, after

Franklin was decided , Felix filed a motion requesting a Franklin proceeding

1 We resolve this case by memorandum opinion because it “is determined by a c ontrolling decision which does not require a reexamination or restatement of its principles or rules. ” (Cal. Stds. Jud. A d min., § 8.1(2).)

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

p ursuant to section 1203.01 , which was denied

. In 2023, Felix moved the

trial court to reconsider his Franklin motion, which the court summarily

denied without explanation. 3

T he parties agree that Felix satisfie s the criteria for such a proceeding

laid out in In re Cook (2019) 7 Cal.5th 439 ( Cook )

, as he is eligible for a youth

offender parole hearing under section 3051 , subdivision (b)(3)

, and he did not

previously have an opportunity to present pertinent youth

- related evidence

. The parties also agree that Felix is entitled to an opportunity to make an

accurate record of his “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, ” and he may seek the post

judgment remedy of a Franklin proceeding even though his sentence is

otherwise final. ( Franklin

, supra , 63 Cal.4th at p. 284 ; Cook

, at p. 451.)

We agree with the parties and accept the People’s concession.

Accordingly, w e rev erse the trial court’s order denying reconsideration of

Felix’s request for a Franklin proceeding and remand the matter for further

proceedings.

3 Felix previously filed a petiti on for writ of habeas corpus seeking the relief he seeks on appeal here, which we denied as procedurally barred while this appeal was pending.4 DISPOSITION

The trial court’s order denying Felix’s motion to reconsider his previous

request for a Franklin p roceedin g is reversed

, and the matter is remanded

with directions that the court conduct a Franklin evidence preservation

proceeding.

BUCHANAN, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.