Filed 4/23/21 P. v. Juarez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

OSMAN ROLANDO GALICIA

JUAREZ,

Defendant and Appellant.

B304377

(Los Angeles County

Super. Ct. No. BA469086)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Craig J. Mitchell, Judge. Affirmed and 

remanded with directions.

Jean Ballantine, 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, Steven D. Matthews and 

Michael J. Wise, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Osman Rolando Galicia Juarez appeals the judgment 

entered following a jury trial in which he was convicted of two 

counts of sexual intercourse or sodomy with a child 10 years old 

or younger (Pen. Code,1 § 288.7, subd. (a); counts 4 & 7), two 

counts of oral copulation or sexual penetration with a child 10

years old or younger (§ 288.7, subd. (b); counts 5 & 8), and three 

counts of a lewd act upon a child under the age of 14 (§ 288, 

subd. (a); counts 3, 6, & 9).2 The trial court sentenced appellant 

to two consecutive terms of 25 years to life on counts 4 and 7, 

plus concurrent terms on the remaining counts of conviction, for a 

total term of 50 years to life in state prison.

Appellant was 18 years old when he committed multiple 

nonviolent sex offenses against his half-sister beginning when 

she was nine. At sentencing, the trial court ruled that because of 

the nature of his offenses, appellant is ineligible for a youth 

offender parole hearing under section 3051. Appellant contends 

the court incorrectly determined that appellant is excluded from 

early parole consideration based on his youth at the time of his 

offenses, and the error requires remand for a hearing under 

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

evidence for a future youth offender parole hearing in accordance 

with section 3051, subdivisions (d) through (f). We agree and 

remand the matter to the trial court for a full hearing for the 

purpose of affording both parties the opportunity to make a 

1 Undesignated statutory references are to the Penal Code.

2 The jury acquitted appellant on counts 1 (sexual 

intercourse or sodomy with a child 10 years old or younger, 

§ 288.7, subd. (a)) and 2 (oral copulation or sexual penetration 

with a child 10 years old or younger (§ 288.7, subd. (b)).
3

record of information relevant to appellant’s future youth

offender parole hearing.

Appellant further contends that his 50-year-to-life sentence

constitutes cruel and unusual punishment under the Eighth 

Amendment and the California Constitution and therefore must 

be reversed. We reject the claim based on our Supreme Court’s 

holding in Franklin that sections 3051 and 4801, enacted by the 

Legislature to bring juvenile sentencing in conformity with

Miller, Graham, and Caballero,

3 render the constitutional 

challenge raised by appellant moot. (Franklin, supra, 63 Cal.4th 

at p. 268; People v. Rodriguez (2018) 4 Cal.5th 1123, 1126

(Rodriguez); People v. Lipptrapp (2021) 59 Cal.App.5th 886, 891.)

FACTUAL BACKGROUND

Appellant’s mother, Maria, left Guatemala for the United 

States around 2003, leaving appellant with his grandparents.

Appellant was three years old. When he was 17, appellant moved 

to Los Angeles from Guatemala to live with his mother, Maria’s 

partner, and Maria’s two younger children⎯appellant’s halfbrother, H.L. (born in April 2010), and his half-sister, S.L. (born 

in March 2008). Appellant shared a bedroom with H.L. and S.L.

H.L. and S.L. shared a bunk bed, and appellant had his own bed 

across the room.

Appellant admitted touching S.L.’s whole body, including 

her chest, her anus, and her vagina, every two to three weeks

starting in December 2017. On the first occasion, appellant, S.L.,

and H.L. were watching television. According to appellant, S.L. 

3 Miller v. Alabama (2012) 567 U.S. 460 (Miller); Graham 

v. Florida (2010) 560 U.S. 48 (Graham); People v. Caballero

(2012) 55 Cal.4th 262 (Caballero).
4

lay down next to appellant, and he began to touch her chest and 

her back. In February 2018, appellant and S.L. were lying on 

appellant’s bed when he touched her vagina with his hand for the 

first time, and then penetrated her vagina with his penis.

The next incident occurred a few weeks later when 

appellant returned from a trip to Atlanta. According to 

appellant, S.L. lay down next to appellant on his bed, and he 

began touching her and inserted his penis into her vagina. The 

third time appellant penetrated S.L.’s vagina occurred on 

Mother’s Day in May 2018. On the night of June 21, 2018, 

appellant penetrated S.L.’s vagina with his penis a fourth time.

Maria had noticed that appellant and S.L. had a very close 

sibling relationship, but by June 22, 2018, she had become 

concerned that something was going on between them. The night 

before, Maria had heard a noise from the children’s bedroom, but 

when she went into the room they appeared to be asleep in their 

own beds. The next morning, Maria asked S.L. if she had gotten 

up in the night. S.L. was reluctant to answer, but said no and 

seemed nervous. Despite her concerns, Maria drove S.L. to school 

at 8:00 a.m., but returned to pick her up at 9:00 a.m. to take her 

to the hospital for tests. At the hospital, S.L. revealed to her 

mother that appellant had touched her inappropriately.

S.L. told a forensic examiner that as she was returning to 

bed from the bathroom, appellant had grabbed her leg, drew her 

toward him, and started touching her “private part.” She tried to 

get away, but he pulled her back, took her shorts off, and

removed his own shorts and underwear. S.L. continued to 

struggle and told him to stop, but appellant hugged her and held 

her “hard” on her arm as he touched her chest, vagina, and anus.

Appellant grabbed S.L.’s shoulders, trying to make her face him. 
5

He lay on top of S.L. and licked her chest. He put his finger in 

her vagina, scratching her with his fingernail, and he put his 

penis in her vagina, which was painful. S.L. remembered that

the first time appellant licked her chest was around Christmas 

when she was nine years old, and she was still nine the first time 

appellant touched her vagina and put his “middle part” in her 

“middle part.”

At trial, S.L. testified that appellant touched her in ways 

she did not like. She stated that appellant touched her “private 

part.” But when she was asked for details, she repeatedly said 

she did not remember because she did not want to get her brother 

into trouble.

DISCUSSION

I. Appellant Is Entitled to a Franklin Proceeding

Before imposing a sentence of two consecutive 25-year-tolife terms, the trial court recognized that a youthful offender 

sentenced to a life term would “normally” have a right to early 

parole consideration “at the 25-year mark.” However, in this 

case, the trial court believed that “an exception [was] carved out” 

for “these type[s] of offenses,” and appellant would not qualify for 

a youth offender parole hearing under section 3051. To the 

contrary, section 3051 applies to appellant without exception.

Section 3051 provides for a youth offender parole hearing to 

be conducted in the 25th year of incarceration by “the Board of 

Parole Hearings [(the Board)] for the purpose of reviewing the 

parole suitability of any prisoner who was 25 years of age or 

younger . . . at the time of the controlling offense.” (§ 3051, subd. 

(a)(1).) The “controlling offense” is the offense for which the 

longest term of imprisonment was imposed (§ 3051, subd. 

(a)(2)(B)), which in this case is either count 4 or count 7, based on 
6

the 25-year-to-life sentence imposed for each of those counts 

(Franklin, supra, 63 Cal.4th at p. 279). A prisoner eligible for 

release on parole at a youth offender parole hearing is entitled to 

such a hearing on the first day of the prisoner’s 25th year of 

incarceration. (§ 3051, subd. (b)(3).)

Early parole consideration under section 3051 is not 

available to every youth offender. Section 3051, subdivision (h) 

specifically excludes those offenders sentenced under the Three 

Strikes law (§§ 1170.12, subds. (b)–(i), 667), the One Strike law 

(§ 667.61, mandating a life sentence for certain sex offenses

committed under specified circumstances), or to life in prison 

without the possibility of parole for a controlling offense that was 

committed after the person reached the age of 18.

4 (People v. 

Contreras (2018) 4 Cal.5th 349, 359, 382; In re Bolton (2019) 40 

Cal.App.5th 611, 617; People v. Phung (2018) 25 Cal.App.5th 741, 

755.)

None of these exclusions applies to appellant. Appellant 

has no prior serious or violent felony convictions, and was not 

sentenced under the Three Strikes law. Nor do appellant’s 

counts of conviction qualify for One Strike sentencing under 

4 The constitutionality of subdivision (h) is an issue currently being 

debated by Courts of Appeal (see, e.g., People v. Edwards (2019) 

34 Cal.App.5th 183, 197; In re Woods (Apr. 2, 2021, B301891) ___ 

Cal.App.5th ___) and is currently under review in the California Supreme 

Court (see People v. Williams (2020) 47 Cal.App.5th 475, rev. granted 

July 22, 2020, S262229; People v. Moseley (2021) 59 Cal.App.5th 1160, 

rev. granted Apr. 14, 2021, S267309).
7

section 667.61,

5 and he was not sentenced under that statute. 

Further, appellant was not sentenced to life without the 

possibility of parole.

While conceding that appellant will be entitled to a youth 

offender parole hearing under section 3051, respondent asserts 

that remand is unnecessary because appellant already had an 

opportunity at his sentencing hearing to make a record of

information pertaining to his youth-related characteristics and 

circumstances at the time of the offense to be considered at his 

eventual parole hearing. To the contrary, although appellant’s 

trial counsel argued for sentencing leniency based on appellant’s 

youth, no evidence of any youth-related factors specific to 

appellant was presented to preserve a record for a youth offender 

parole hearing 25 years in the future.

“The Legislature has declared that ‘[t]he youth offender 

parole hearing to consider release shall provide for a meaningful 

opportunity to obtain release’ (§ 3051, subd. (e)) and that in order 

to provide such a meaningful opportunity, the Board ‘shall give 

great weight to the diminished culpability of juveniles as 

compared to adults, the hallmark features of youth, and any 

subsequent growth and increased maturity’ (§ 4801, subd. (c)).” 

(Franklin, supra, 63 Cal.4th at p. 283.) In order to allow the 

5 Section 667.61 provides that any person who is convicted 

of committing a lewd or lascivious act in violation of section 288, 

subdivision (a) or (b), under one or more of the circumstances 

specified in section 667.61, subdivision (d) or under two or more 

of the circumstances specified in section 667.61, subdivision (e)

shall be punished by imprisonment in the state prison for 25 

years to life. None of the circumstances enumerated in section 

667.61, subdivision (d) or (e) is present in this case.
8

Board to fulfill its mandate, our Supreme Court requires that 

youth offenders like appellant be given an opportunity to 

preserve evidence of youth-related factors to be considered in

their eventual parole hearing. (Id. at p. 284.)

As Franklin observed, the statutory scheme specifically

“contemplate[s] that information regarding the juvenile offender’s 

characteristics and circumstances at the time of the offense will 

be available at a youth offender parole hearing to facilitate the 

Board’s consideration. For example, section 3051, subdivision 

(f)(2) provides that ‘[f]amily members, friends, school personnel, 

faith leaders, and representatives from community-based 

organizations with knowledge about the individual before the 

crime . . . may submit statements for review by the board.’ 

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. 

[Citation.] In addition, section 3051, subdivision (f)(1) provides 

that any ‘psychological evaluations and risk assessment 

instruments’ used by the Board in assessing growth and maturity 

‘shall take into consideration . . . any subsequent growth and 

increased maturity of the individual.’ Consideration of 

‘subsequent growth and increased maturity’ implies the 

availability of information about the offender when he was a 

juvenile.” (Franklin, supra, 63 Cal.4th at pp. 283–284.)

Almost none of the youth-related information envisioned by 

the court in Franklin was presented at appellant’s sentencing 

hearing in this case. The defense submitted no sentencing 

memorandum, and the People’s sentencing memorandum 
9

contained no mitigating youth-related evidence. Appellant’s 

probation report contains no discussion of any youth-related 

factors and states there were no circumstances in mitigation. 

Further, although defense counsel brought the court’s attention 

to appellant’s recent immigration from a very small town in 

Guatemala with different social norms, counsel presented no 

evidence about any other environmental, social, or psychological 

factors affecting appellant prior to or at the time of the offenses.

The goal of the proceeding envisioned by Franklin “is to 

provide an opportunity for the parties to make an accurate record 

of the juvenile offender’s 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 (§ 4801, subd. (c)) in determining whether the offender is 

‘fit to rejoin society’ despite having committed a serious crime 

‘while he was a child in the eyes of the law.’ ” (Franklin, supra,

63 Cal.4th at p. 284.) Appellant’s sentencing hearing did not 

meet this goal. Accordingly, appellant is entitled to a remand for 

a full Franklin evidentiary hearing to enable the parties to make 

a record of the information contemplated under section 3051.

II. The Availability of Early Parole Consideration 

Under Section 3051 Renders Appellant’s 

Constitutional Challenge to His Sentence Moot

Appellant seeks reversal of his 50-year-to-life sentence on 

the ground that it is cruel and unusual in violation of the Eighth 

Amendment and the California Constitution. In Franklin, our 

Supreme Court “held that a juvenile offender’s Eighth 

Amendment challenge to his 50-year-to-life sentence was 

rendered moot” by the enactment of sections 3046, 
10

subdivision (c), 3051, and 4801,

6 which instituted youth offender 

parole hearings and made youth offenders like Franklin eligible 

for such a hearing during their 25th year of incarceration. 

(Rodriguez, supra, 4 Cal.5th at p. 1130; Franklin, supra, 63 

Cal.4th at p. 280.) In accordance with Franklin’s holding on this 

issue, we reject appellant’s claim.

Franklin began its analysis of the Eighth Amendment 

claim with the recognition that the Legislature enacted these 

statutes with the express purpose of bringing juvenile sentencing 

into conformity with Graham, Miller, and Caballero by 

establishing a mechanism by which a person serving a sentence 

for crimes committed as a juvenile would have an opportunity to 

obtain release upon showing growth, rehabilitation, and 

maturity. (Franklin, supra, 63 Cal.4th at p. 277; Stats. 2013, 

ch. 312, § 1.) But the means for obtaining early release upon the 

requisite showing does not invalidate the original sentence. As 

Franklin explained: “The Legislature did not envision that the 

original sentences of eligible youth offenders would be vacated 

and that new sentences would be imposed to reflect parole 

6 As mentioned, section 4801, subdivision (c) specifies that 

in its review of a youth offender’s suitability for parole in the 

context of a section 3051 hearing, the Board of Parole Hearings 

“shall give great weight to the diminished culpability of juveniles 

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.”

Subdivision (c) of section 3046 requires that an inmate 

found suitable for parole pursuant to a youth offender parole 

hearing under section 3051 be released regardless of the manner 

in which the Board of Parole Hearings set release dates pursuant 

to section 3041, subdivision (a).
11

eligibility during the 15th, 20th, or 25th year of incarceration. 

The continued operation of the original sentence is evident from 

the fact that an inmate remains bound by that sentence, with no 

eligibility for a youth offender parole hearing, if ‘subsequent to 

attaining 23 years of age’ the inmate ‘commits an additional 

crime for which malice aforethought is a necessary element . . . or 

for which the individual is sentenced to life in prison.’ (§ 3051, 

subd. (h); Stats. 2015, ch. 471.) But section 3051 has changed the 

manner in which the juvenile offender’s original sentence 

operates by capping the number of years that he or she may be 

imprisoned before becoming eligible for release on parole. The 

Legislature has effected this change by operation of law, with no 

additional resentencing procedure required.” (Franklin, at 

pp. 278–279.)

Appellant nevertheless contends that because his 50-yearto-life sentence was unconstitutional ab initio, the “existence of a 

potential mechanism for being paroled 25 years into the future” 

under section 3051 does not moot the Eighth Amendment 

violation in this case. Our Supreme Court rejected a similar 

argument in Franklin. While an adult offender sentenced to two 

consecutive 25-year-to-life terms would not be eligible for parole 

consideration until he or she had served 50 years (§ 3046, subd. 

(b); Franklin, supra, 63 Cal.4th at p. 273), a youth offender 

sentenced in the same manner (who is not otherwise excluded 

from early parole consideration under section 3051, 

subdivision (h)) is eligible for parole consideration and a 

meaningful opportunity for release as though the original 

sentence were 25 years to life. (Franklin, supra, 63 Cal.4th at 

pp. 279–280.) As Franklin observed, such a sentence is therefore 

neither LWOP nor its functional equivalent. (Franklin, supra, 63 
12

Cal.4th at p. 280.) Indeed, it is tantamount to a sentence of 25

years to life. Accordingly, by operation of section 3051, section 

3046, subdivision (c), and section 4801, appellant’s constitutional 

challenge to his sentence is moot.7

Finally, appellant asserts that “[p]ushing a first 

opportunity for parole so far into the future” leaves “no reliable 

way to measure his cognitive abilities, maturity, and other youth 

factors when the offense was committed more than 25 years 

prior.” We reject the claim in light of our decision to remand the 

matter for a “Franklin” hearing, at which appellant “may place 

on the record any documents, evaluations, or testimony (subject 

to cross-examination) that may be relevant at his eventual youth 

offender parole hearing, and the prosecution likewise may put on 

the record any evidence that demonstrates [appellant’s]

culpability or cognitive maturity, or otherwise bears on the 

influence of youth-related factors.” (Franklin, supra, 63 Cal.4th 

at p. 284.)

7 Appellant does not argue that a sentence of 25 years to 

life is unconstitutional or would not be an appropriate sentence 

under the circumstances of this case, conceding that “[t]he crimes 

committed in this case were no doubt serious and deserving of a 

lengthy sentence.”
13

DISPOSITION

The judgment is affirmed. The matter is remanded to the 

trial court to afford both parties the opportunity to make a record 

of information relevant to appellant’s eventual youth offender 

parole hearing under Penal Code section 3051, as set forth in 

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

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.