Filed 1/30/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re

KEVIN HOWERTON,

On Habeas Corpus.

F076546

(Kern Super. Ct. No. HC015497A)

OPINION

APPEAL from an order granting petition for writ of habeas corpus. Michael E. 

Dellostritto, Judge.

Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, 

Amanda J. Murray and Krista L. Pollard, Deputy Attorneys General, for Appellant.

Tracy Lum, under appointment by the Court of Appeal, for Respondent.

-ooOooRespondent Kevin Howerton sought and was granted a writ of habeas corpus 

ordering his immediate release from prison and granting credits against his mandated 

parole term. The grounds for relief turned on the trial court’s interpretation of Penal 

Code section 3051.1 The People filed the present appeal, contending the trial court 

wrongly found section 3051 applicable because Howerton had already been granted 

parole on his indeterminate-term youth offense. For the reasons set forth below, we 

 

1 All future references are to the Penal Code.
2.

reverse the trial court’s order and remand with instructions to vacate the order granting

the petition for writ of habeas corpus and enter a new order denying the petition.

FACTUAL AND PROCEDURAL BACKGROUND

The facts relevant to this case are not in dispute. In 1991, Howerton was 

convicted of a second degree murder he committed in 1990, when he was 19 years old.2 

He was sentenced to an indeterminate term of 15 years to life. Pursuant to 

section 3000.1, Howerton is subject to a lifetime period of parole with the exception that 

he must be discharged from parole after five years absent a finding of good cause to 

retain him on parole. (§ 3000.1, subd. (b).)

In February 2000 and again in August 2002, while serving his second degree 

murder sentence, Howerton was convicted of possession of a weapon by an inmate. 

These convictions resulted in what was effectively an additional 10-year consecutive 

sentence.

In July 2014, Howerton was granted parole on the second degree murder sentence. 

Consistent with the law at that time, Howerton then began serving, and continues to 

serve, his 10-year consecutive sentence for the weapons convictions.

On January 1, 2016, amendments to section 3051 became effective that, if 

applicable, rendered Howerton eligible for a youth offender parole hearing on his second

degree murder conviction. Subsequent case law, including but not limited to, In re Trejo

(2017) 10 Cal.App.5th 972 (Trejo), held that youth offenders granted parole under 

 

2 Although not relevant to the issues here, we note the circumstances of Howerton’s life 

and conviction detailed in the record. Howerton was a troubled child, using marijuana as early 

as age seven and alcohol by age 14. At age 15, he met a drug dealer named Jeff Ross, who 

provided him with his daily needs in exchange for sex. Howerton eventually devised a plan to 

kill Ross and did so by striking him more than twenty times with a hammer, such that “Mr. 

Ross’s face and head were obliterated.” Upon entering prison, Howerton joined one or more 

white supremacist gangs, attacked other inmates and prison staff, and obtained his weapons 

convictions. Ultimately, however, he ceased these activities and reformed his behavior to the 

satisfaction of the parole board.
3.

section 3051 must be immediately released, even if they have later suffered adult 

convictions while incarcerated, provided any later convictions are not specifically 

identified as exempting those youth offenders from the statutory scheme. (See In re 

Jenson (2018) 24 Cal.App.5th 266 [summarizing and following Trejo]; In re Williams 

(2018) 24 Cal.App.5th 794, 799–805 [same].) Howerton, however, has not been 

released. Rather, he remains incarcerated pursuant to the weapons convictions.

Asserting that his situation is encompassed by the statutory scheme of 

section 3051, Howerton filed an application (petition) for a writ of habeas corpus with the 

Superior Court of the State of California for the County of Kern. In addition to release, 

Howerton argued any time served after he should have been released should count 

against his parole requirements. The People opposed, arguing Howerton was not a youth 

offender under the statute because he had been paroled under the normal course of the 

law prior to section 3051’s amendments, and thus was serving a determinate term 

sentence committed as an adult and not an indeterminate sentence as required under the 

statutory scheme. The People further disagreed that any excess time in custody could 

count against a lifetime parole requirement.

The trial court ultimately granted the petition, concluding after substantial 

discussion that Howerton was entitled to release as of January 1, 2016, and ordering he 

“have deducted from his parole period the days of incarceration beyond that date.” This 

appeal timely followed.

DISCUSSION

This case turns upon an analysis of the statutory exceptions to the grant of a youth 

parole eligibility hearing.

Standard of Review and Applicable Law

“ ‘As a general matter, we review the grant of a writ of habeas corpus by applying 

the substantial evidence test to pure questions of fact and de novo review to questions of 

law. [Citation.] “[W]hen the application of law to fact is predominantly legal, such as 
4.

when it implicates constitutional rights and the exercise of judgment about the values 

underlying legal principles, [the appellate] court’s review is de novo.” ’ ” (In re 

Campbell (2017) 11 Cal.App.5th 742, 753.)

“Our fundamental task in construing a statute is to ascertain and give effect to the 

intent of the Legislature. [Citation.] ‘ “ ‘We begin by examining the statute’s words, 

giving them a plain and commonsense meaning.’ ” ’ [Citation.] ‘ “[W]e consider the 

language of the entire scheme and related statutes, harmonizing the terms when 

possible.” ’ [Citation.] When the statutory language is clear and unambiguous, we 

presume the Legislature meant what it said.” (People v. Taggart (2019) 31 Cal.App.5th 

607, 612.)

Section 3051 was enacted in 2013. (People v. Franklin (2016) 63 Cal.4th 261, 

276.) The legislative intent behind section 3051 “ ‘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 ....’ ” (Trejo, supra, 10 Cal.App.5th at p. 980.) 

The statute thus provides for youth offender parole hearings that guarantee youth

offenders a meaningful opportunity for release on parole. (§ 3051, subd. (e).) Youth

offenders who committed their “controlling offense” prior to reaching a specified age are 

entitled to a parole hearing after serving a designated period in custody. (§ 3051, 

subd. (b).) More specifically, and as relevant to the issues raised here, “[a] person who 

was convicted of a controlling offense that was committed when the person was 25 years 

of age or younger and for which the sentence is a life term of less than 25 years to life 

shall be eligible for release on parole by the board during his or her 20th 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.” (§ 3051, 

subd. (b)(2).) The “controlling offense” is defined as “the offense or enhancement for 
5.

which any sentencing court imposed the longest term of imprisonment.” (§ 3051, 

subd. (a)(2)(B).)

As originally enacted, section 3051 applied where the controlling offense was 

committed before the offender was 18 years old. (Trejo, supra, 10 Cal.App.5th at p. 981 

& fn. 6.) By an amendment that became effective on January 1, 2016, the Legislature 

extended the availability of youth offender parole hearings to offenders who were under 

23 years old when they committed their controlling offenses. (Stats. 2015, ch. 471, § 1 

(Sen. Bill No. 261); see Trejo, supra, at p. 981 & fn. 6.) By a subsequent amendment 

that became effective January 1, 2018, the Legislature further extended the availability of 

youth offender parole hearings to offenders who were under 25 years old when they 

committed their controlling offenses. (§ 3051, subd. (b); Stats. 2017, ch. 675, § 1 

(Assem. Bill No. 1308).) At each amendment, new time limits were set for conducting 

the relevant hearings for those who became eligible for parole based on the amendments. 

(See § 3051, subd. (i)(2)(A) [“The board shall complete all youth offender parole 

hearings for individuals who were sentenced to indeterminate life terms and who become 

entitled to have their parole suitability considered at a youth offender parole hearing on 

the effective date of the act that added this paragraph by July 1, 2017.”].)

Howerton Is Not Eligible for a Youth Offender Parole Hearing

A youth offender parole hearing is a procedural mechanism to ensure that youth 

offenders are provided with a meaningful opportunity for release on parole. As such, it is 

unsurprising that the statute has, within it, exemptions from the statutory scheme for 

those that have already been paroled or otherwise had a meaningful opportunity to obtain 

parole. Relevant to this case, one who would otherwise be eligible for release on parole 

through a youth offender parole hearing is not entitled to the protections of the statutory 

scheme if “previously released or entitled to an earlier parole consideration hearing 
6.

pursuant to other statutory provisions.”3 (§ 3051, subd. (b)(2).) If one has obtained a 

reasonable opportunity at parole prior to the point the statute’s mandated timeframes are 

triggered, neither the right to a youth offender parole hearing nor any of the subsequent 

effects mandated by the case law or statutory scheme are required by the statute. Indeed, 

such hearings and their subsequent effects are specifically excluded by the statutory 

language.

In this case, the trial court’s determination that Howerton’s second degree murder 

conviction qualified him as a youth offender under the statutory scheme was only half of 

the required analysis. The second requirement was to determine whether Howerton had 

been “previously released or entitled to an earlier parole consideration hearing pursuant 

to other statutory provisions” such that he was entitled to a youth offender parole hearing. 

Here, the record is clear. Howerton received multiple prior parole eligibility hearings and 

had previously been released on parole with respect to his “controlling offense” of second

degree murder. Although these hearings and the parole determination came after the 

20-year period noted in section 3051, they all occurred before Howerton became eligible 

for a youth offender parole hearing in the first instance. Given that the amended statutes 

provide a cutoff date to perform a first youth offender parole hearing if one becomes 

required by the amendments, and make no suggestion the parole analysis itself should be 

retroactive to the point at which eligibility would have first arisen, the statutory language 

concerning prior release or prior eligibility hearings most naturally reads to restrict 

eligibility to those that have not yet received the benefits of parole or reasonable parole 

eligibility hearings at the time the amended statute becomes effective.

 

3 Notably, the statutory scheme draws further distinctions based on the underlying sentence 

imposed. When 15 years to life or less, the statute does not care whether one has had a prior 

opportunity for parole, only whether one was previously released. For longer terms, the statutory 

scheme is more restrictive in its relief, considering whether or not a prior hearing has been held 

under other statutory provisions. (See § 3051, subd. (b)(1)–(b)(3).)
7.

In reaching its conclusion that Howerton should be released, the trial court 

determined that Howerton’s prior parole hearings and determinations were the equivalent 

of a youth offender parole hearing and thus entitled him to the protections of subsequent 

case law developments such as those in Trejo that required full immediate release. We 

do not agree. Determining that hearings and parole determinations made prior to one’s 

amended eligibility under section 3051 can be retroactively classified as hearings under 

section 3051 negates the specific language providing that prior release or parole 

eligibility hearings exclude a youth offender from the youth offender parole hearing 

requirement. While eligibility for release may be retroactive under the statutory scheme, 

we see nothing in the language, case law, or legislative history that suggests previously 

completed parole actions should be reclassified as youth offender parole hearings. To the 

contrary, the plain language of the statute states the opposite and is consistent with the 

legislative concern that youth offenders are not being provided reasonable opportunities 

for parole in a timely fashion.

Howerton was not entitled to a youth offender parole hearing when he was 

convicted. Nor was he potentially entitled to a youth offender parole hearing when he 

was paroled.4 Moreover, prior to any potential youth offender parole hearing eligibility, 

Howerton received multiple parole eligibility hearings, was ultimately deemed suitable 

for parole, and was actually paroled. By the plain language of the statute, Howerton was 

not entitled to a youth offender parole hearing at the time the statute became effective and 

thus was not entitled to the additional benefits afforded by the case law requiring 

immediate release upon parole under that statutory scheme.

 

4

In the first instance, Howerton was an adult under the eyes of the law when he committed 

the crime and the youth offender parole hearing statute had not yet been enacted. In the second, 

although the youth offender parole hearing statute had been enacted, it only covered individuals 

convicted of crimes before turning 18 and thus did not yet extend to Howerton’s situation.
8.

It is undisputed that under the law at the time of Howerton’s parole, a grant of 

parole on a life sentence did not relieve one from serving any subsequently obtained 

consecutive sentences. (§ 1170.1, subd. (c); see In re Thompson (1985) 172 Cal.App.3d 

256, 259–262.) Nor has that law changed with respect to adult offenders. Thus, while an 

argument can be made that Howerton’s release turns only on the timing of his parole

grant and not upon any other distinguishing fact between him and other newly classified 

youth offenders, the statutory language shows this is the result of intentional line drawing 

on the part of the Legislature as reflected in the plain meaning of the language they chose 

for the statutory scheme.5

DISPOSITION

The trial court’s order is reversed. The matter is remanded with instructions to 

vacate the order granting petition for writ of habeas corpus and enter a new order denying 

the petition.

_____________________

HILL, P.J.

WE CONCUR:

_____________________

LEVY, J.

_____________________

SMITH, J.

 

5 Howerton requested we take judicial notice of certain filings from recent court cases and 

other documents. We previously deferred ruling on this request until reaching the merits.

Because our ruling means we either do not reach the arguments those documents relate to or do 

not need to consider the documents cited, we deny Howerton’s request as moot.