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Filed 2/11/21 P. v. Tucker CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
GREGORY A. TUCKER,

Defendant and Appellant. C091634 (Super. Ct. No. CR69953)

Defendant Gregory A. Tucker pleaded guilty to kidnapping to commit robbery in 1983 when he was 19 years old. Decades later, the Legislature created a mechanism for early parole review for youthful offenders in Penal Code section 3051. 1 The Supreme
Court determined in People v. Franklin (2016) 63 Cal.4th 261 ( Franklin ) that defendants

1 Further u ndesignated statutory references are to the Penal Code.2

who will become eligible for such a parole hearing are entitled to create a record of

ev idence pertaining to youthful characteristics. Defendant filed a motion with the trial court seeking a Franklin hearing to gather evidence relevant to his eventual youth offender parole hearing and sought appointment
of counsel. The trial court denied t he motion in a written order, without appointing counsel, based on In re Cook (2019) 7 Cal.5th 439 ( Cook ), finding a Franklin hearing would be unlikely to produce fruitful evidence. Defendant appeals the trial court’s denial of his motion and seeks a Franklin proceeding 2 to establish youth

- related mitigation factors for a future youth offender parole hearing under section 3051. He also asserts the court erred in failing to appoint counsel prior to making the discretionary decision to deny him a heari ng

. We conclude defendant was eligible for a Franklin proceeding, which triggered his right to counsel, and that the factors outlined by the trial court to justify denial of that proceeding were insufficient to do so. Consequently, we reverse the order d enying defendant a Franklin proceeding and remand for reconsideration with the benefit of appointed counsel.
BACKGROUND In 1983 defendant and two accomplices kidnapped and robbed a woman at gunpoint by forcing her into her car and then driving off. She wa s able to escape when they stopped to get gas. Defendant appeared to be the leader of the group by giving
orders to the other two. He was 19 years old at the time of the crime. In 1984 defendant pleaded guilty to kidnapping to commit robbery. (§ 209, subd. (b).) The trial court sentenced him to life in prison with the possibility of parole.

2 The Cook court explained that “proceeding” is a more appropriate term than “hearing” because the judicial officer overseeing the Franklin proceedings “is not called upon to make findings of fact or render any final determination.” ( Cook, supra, 7 Cal.5th at p. 449, fn. 3.)3

Defendant had an initial parole consideration hearing in 1988 and a subsequent parole consideration hearing in 1993. In 2019 defendant filed a motion in superio r court, under the original caption and case number, seeking a hearing under Franklin , supra , 63 Cal.4th 261 and Cook, supra , 7 Cal.5th 439 to “establish a record of relevant youth

- related mitigating factors for later consideration by [the] Board of Parole Hearings at his youth offender parole hearing.” The motion stated defendant would present evidence concerning hallmarks of youth, inherent impact of age upon his culpability, home and family environment, and the circumstances of the offense. He also req uested appointment of counsel. The trial court denied the motion without appointing counsel. It noted “timeliness of the request for relief is a factor to be considered” and, here, “[d]efendant’s conviction is decades old and any investigation ordered b y this Court is unlikely to produce fruitful evidence of [d]efendant’s youthful characteristics. Additionally, a review of the CDCR online inmate locator indicates that [d]efendant has already had multiple parole suitability hearings since 1988, and that he has a tentative date for a suitability hearing in December 2020. It is apparent that he has had, and continues to have, opportunities to place his youthful characteristics before the Board of Parole Hearings for consideration and that he
has had severa l meaningful opportunities for release.”
DISCUSSION
I
Senate Bill No. 260, Franklin , and Cook “[T]he California Legislature passed Senate Bill No. 260 (2013

- 2014 Reg. Sess.),
which became effective January 1 , 2014, and enacted sections 3051, 3046, subdiv ision (c), and 4801, subdivision (c), to provide a parole eligibility mechanism for juvenile offenders.” ( People v. Perez (2016) 3 Cal.App.5th 612, 618.) “In October 2015, the Legislature amended section 305 1 , and effective January 1, 2016, anyone who committed his or her controlling offense before reaching 23 years of age [became] entitled to a youth4

offender parole hearing. (§ 3051, subd. (a)(1), amended by Stats. 2015, ch. 471, § 1.)” ( Id. at p. 618 ) Under the revised section 3051, the Board of Pa role Hearings “ shall complete all youth offender parole hearings for individuals who were sentenced to
indeterminate life terms and who [ bec a me ] entitled to have their parole suitability considered at a youth offender parole hearing on January 1, 2016, by July 1, 2017. ” (§ 3051, subd. (i)(2)(A).)
In Franklin , a 16

- year

- old defendant shot and killed another teenager; he was convicted of murder with a firearm enhancement and received the statutorily mandated sentence of life in prison with the possibility of parole in 50 years. ( Franklin , supra , 63 Cal.4th at p. 268.) Our Supreme Court found Senate Bill No. 260 granted Franklin a parole hearing during his 25th year in prison, which mooted his Eighth Amendment challenge to his sentence. ( Franklin , at pp. 27 6

- 277.) The Franklin court remanded “the
matter to the trial court for a determination of whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing.” ( Id. at p. 284.)
The S upreme Court in C ook determined the proper avenue to seek a Franklin proceeding is through section 1203.01 rather than by way of a habeas corpus petition. ( C ook , supra , 7 Cal.5th at pp. 446

- 447.) The court explained the process in full: “[T]he

proper av enue is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and today’s decision. The motion should establish the inmate’s entitlement to a youth offender parole hearing and indicate when such hearing is anticipated to take place, or if one or more hearings have already
occurred. .

. . [C]onsistent with Franklin and the court’s inherent authority, the offender shall have the opportunity to ‘place on the record any documents, evaluations, o r 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 evidence5

that demonstrates the juvenile offender’s culpability or cognitive maturity, or o therwise bears on the influence of youth

- related factors.’ [Citation.]” ( Cook , at pp. 458

- 459.) The high court continued: “Although Franklin mandates an opportunity for evidence preservation, the trial court may ‘exercise its discretion to conduct this process efficiently

. . . .’ Finally, Franklin emphasized that the purpose of the proceeding was to allow the offender to assemble evidence ‘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.] Some offenders who file these postjudgment motions in the trial court may have spent a decade or more in prison. Some may have even come before the B oard for a youth offender parole hearing. 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 proc edures set forth in section 3051, subdivision (f)(1) and (2) with the assistance of appointed counsel (§ 3041.7; Cal. Code Regs., tit. 15, § 2256, subd. (c)).” ( Cook , supra , 7 Cal.5th at
p. 459.)
Cook confirmed the manner and extent of a Franklin hearing is left to the discretion of trial courts. ( Cook , supra , 7 Cal.5th at p. 459.) Trial courts “may” also
consider whether a Franklin proceeding is unnecessary because it will not produce “fruitful evid ence.” ( Ibid .) “ Accordingly, we ask whether the trial court ’ s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was not arbitrary or capricious. [Citation. ] Critical to the resolution of this case, we note that when a trial court ’ s decision rests on an6

error of law, that decision is an abuse of discretion. ” ( People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746.)
II Analysis Defendant argues h e was entitled to a Franklin proceeding and the trial court erred in finding the timeliness of his request and his earlier parole hearings operated to deny him a hearing. Defendant also contends the trial court erred in failing to appoint counsel

. The Pe ople counter that the trial court acted within its discretion when relying on the passage of time and past parole hearings under Cook to deny defendant a hearing, and since a hearing was denied counsel was not needed. Defendant has the more persuasive

arg uments. Defendant’s motion required two separate analyses: (1) whether he was generally eligible for the Franklin fact gathering process and (2) whether a Franklin proceeding would produce fruitful evidence. Cook reaffirmed that Franklin “ mandates an
oppo rtunity for evidence preservation” for eligible prisoners. ( Cook, supra , 7 Cal.5th at p. 459, italics added.) Yet, Cook also confirmed trial courts have discretion “ ‘ to conduct this process efficiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rules, statutes, and regulations. ’ ” ( Ibid .) This includes determining whether a Franklin proceeding is even

“ likely to produce fruitful evidence .” ( Ibid .)
Defendant satisfied the first analysis by bringing his motion in superior court under the original caption and case number, citing section 1203.01 and Cook , establish ing
his entitlement to a youth offender parole hearing under section 3051 (because he was
under 23 at the time of the c rime), and indicat ing he had not yet had such a hearing. This renders him eligible for a Franklin proceeding. ( Cook, supra, 7 Cal.5th at p. 459 [ Franklin “mandat[ed]” an opportunity to preserve evidence and “it would be improper7

for the court to preclude a juvenile offender’s chance to supplement the record with information relevant to his eventual youth offender parole hearing ” ( id . at p. 453)]. ) It is not entirely clear from the court’s opinion whether it determined defendant eligible under Franklin bef ore denying him access to a Franklin proceeding. To the extent the trial court concluded defendant actually ineligible for an opportunity to preserve evidence under Franklin , this conclusion was not accurate. Further, defendant’s eligibility for the Frank lin process triggered his right to appointment of counsel. The right to counsel “applies at all critical stages of a criminal proceeding in which the substantial rights of a defendant are at stake.” ( People v. Crayton (2002) 28 Cal.4th 346, 362.) Sectio n 3051 provides an opportunity to significantly reduce the time for parole eligibility and a Franklin hearing is fundamental to this opportunity ; it creates a record so that the Parole Board “ may properly discharge its obligation to ‘give great weight to’ [such] factors [citation] in determining whether the
offender is ‘ fit ’ ” for parole. (See Franklin, supra , 63 Cal.4th at p. 284 .) Given the
critical role a Franklin proceeding plays in deter mining parole eligibility at a subsequent youth offender parole hearing, we conclude the proceeding qualifies as a ‘ critical stage ’ to which the right to counsel attaches. ( People v. Lipptrapp ( 2021 ) 59 Cal. App.5th 886.) Thus, a party who has established eligibility for a Franklin proceeding is entitled to appointment of counsel. ( Ibid. [ a party moving for relief under section 1203.01 is entitled to the appointment of counsel ].) Since defendant established his eligibility for an opportunity to preserve evidence
under Franklin , he was entitled to appointment of counsel. As for the second analysis, the court relied on the two factors outlined in Cook to find a Franklin proceeding would be unlikely to produce fruitful evidence: (1) prior opportunity to benefit from section 3051 ; and (2) passage of time . We conclude these findings were not supported by substantial evidence.8

Initially, there is no evidence defendant has already benefitted from section 3051. The parole board was required to have a youth offender parole hearing for defendant in 2017 because he became eligible under section 3051 in 2016. (§ 3051, subd. (i)(2)(A).)
The record does not disclose he has had s uch a hearing and we cannot so assume. Instead, the record indicates he had two parole hearings well before 2016 when there was
no incentive to create a record of relevant youth

- related mitigating factors . The trial court’s finding that defendant had “ op portunities to place his youthful characteristics before the Board of Parole Hearings ” was therefore unsupported by the evidence. This leaves passage of time, which cannot be the sole reason for finding a lack of fruitful evidence. The Legislature include d a provision for those prisoners who would automatically become eligible on both section 3051’s effective date and the effective date
of its amendment . ( § 3051, subd. (i) .) These prisoners could have been convicted 25 years or more prior to enactment. (§ 3051, subd. (b)(3).) From this it is clear the Legislature intended that the benefits of youth offender parole hearings be available even to those prisoners with decades

- old convictions. And, under Franklin , prisoners who are entitled to a future youth offender parole hearing are also entitled to an opportunity to prepare a record relevant to such a hearing. ( Franklin, supra , 63 Cal.4th at p. 284 .)
Prisoners who were co nvicted long before they became eligible under section 3051 are
therefore entitled to a Franklin hearing. ( See In re Loza (2018) 27 Cal.App.5th 797, 807 [remanding for a Franklin hearing where a defendant’s “ sentencing took place well
before ” Franklin ]; P eople v. Lipptrapp , supra , 59 Cal.App.5th at p. 897 [ordering the trial court to conduct a Franklin proceeding where the defendant had “ been incarcerated for over 20 years and he was eligible for the hearing several years before he filed the
motion ”].)
Def endant was convicted in 1984 and was not eligible for a youthful offender parole hearing until 2016. There is no evidence he has had such a hearing, and the passage of time since his conviction cannot be the sole reason for disqualifying him from9

the pote ntial benefits of a Franklin proceeding. Thus, there is insufficient evidence in the record before us supporting the denial of a Franklin proceeding for which defendant is otherwise eligible based on the factors outlined in Cook . We must reverse and rema nd
for the trial court to reconsider whether a Franklin proceeding would be beneficial. This must also be done with the benefit of counsel appointed for defendant.
DISPOSITION The order denying defendant’s section 1203.01 motion seeking a Franklin proceeding is reversed and the cause is remanded with directions to reconsider the matter consistent with the views expressed herein.

/s/ Duarte, Acting P. J.

We concur:

/s/ Hoch, J.

/s/ Krause, J.