Filed 1/10/17




                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                         DIVISION THREE



In re ANTHONY MAURICE COOK, JR.                         G050907

    on Habeas Corpus.                                   (Super. Ct. No. WHCSS1400290)

                                                        OPINION



                  Original proceedings; petition for writ of habeas corpus after a judgment of
the Superior Court of San Bernardino County, Katrina West, Judge. Petition granted.
                  Anthony Maurice Cook, Jr., in pro. per.; and Michael Satris, under
appointment by the Court of Appeal, for Petitioner.
                  Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina,
Theodore Cropley, Parag Agrawal and Lynne G. McGinnis, Deputy Attorneys General,
for Respondent.

                                     *          *           *
                                    INTRODUCTION
              In 2009, the convictions against petitioner Anthony Maurice Cook, Jr.
(Petitioner), for two counts of murder, one count of attempted murder, and firearm
enhancements were affirmed in People v. Shaw and Cook (May 28, 2009, G041439)
(nonpub. opn.). By petition for writ of habeas corpus, Petitioner challenged his sentence
of 125 years to life in prison. Petitioner, who was 17 years old when he committed the
crimes, contended his sentence was unconstitutional under Miller v. Alabama (2012) 567
U.S. __ [132 S.Ct. 2455] (Miller) and, as relief, asked to be resentenced.
              In In re Cook (Apr. 6, 2016, G050907) (nonpub. opn.) (Cook), we denied
Petitioner’s petition for writ of habeas corpus. We concluded, based on Montgomery v.
Louisiana (2016) 577 U.S. __ [136 S.Ct. 718], that Miller applied retroactively to cases
on collateral review but that recently enacted Penal Code sections 3051 and 4801 had the
effect of curing the unconstitutional sentence imposed on Petitioner. (Cook, supra,
G050907.) In July 2016, the California Supreme Court granted Petitioner’s petition for
review of our opinion and transferred the matter to us with directions to vacate our
decision and consider, in light of People v. Franklin (2016) 63 Cal.4th 261, 268-269,
283-284 (Franklin), “whether petitioner is entitled to make a record before the superior
court of ‘mitigating evidence tied to his youth.’”
              The petition is granted insofar as the relief sought in the prayer of
Petitioner’s supplemental opening brief seeks a hearing to allow Petitioner to make a
record of mitigating evidence tied to his youth at the time of the offense. The matter is
remanded with directions to the trial court to grant Petitioner a hearing at which he can
make a record of such mitigating evidence. In doing so, we hold that the relief afforded
by Franklin is available by both direct review and petition for writ of habeas corpus.
                                     BACKGROUND
              In December 2003, Petitioner and Rufus Raymond Shaw shot and killed
Odrum Nader Brooks and his son, Demarcus T. Brooks, while the latter two sat in an

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automobile. Petitioner was 17 years old at the time. In 2007, a jury convicted Petitioner
of two counts of first degree murder (Pen. Code, § 187, subd. (a)) and one count of
attempted murder (id., §§ 664, 187, subd. (a)), and found true the allegations that
Petitioner personally and intentionally discharged a firearm (id., § 12022.53, subd. (c))
and personally and intentionally discharged a firearm proximately causing great bodily
injury (id., § 12022.53, subd. (d)).
              The trial court sentenced Petitioner to an indeterminate term of life with the
possibility of parole for the attempted murder, plus five consecutive indeterminate terms
of 25 years to life for murder and discharging a firearm, for a total sentence of 125 years
to life. The convictions and sentence were affirmed in People v. Shaw and Cook, supra,
G041439.
              In 2014, Petitioner filed a petition for writ of habeas corpus in the superior
court in which he had been convicted. The superior court denied the petition without an
evidentiary hearing in September 2014.
              One month later, Petitioner, who was self-represented at the time, filed a
petition for writ of habeas corpus in the Court of Appeal. He sought relief based on
Miller, supra, 567 U.S. __ [132 S.Ct. 2455]. Counsel was appointed to represent
Petitioner, and counsel filed a supplement to the petition for writ of habeas corpus and an
appendix of exhibits. We issued an order to show cause, in response to which the
Attorney General (Respondent) filed a return. Petitioner filed a traverse, thereby joining
the issues for review. In April 2016, we issued our opinion in Cook, supra, G050907,
denying the petition for writ of habeas corpus.
              The California Supreme Court granted Petitioner’s petition for review of
our opinion and transferred the matter to us with directions. Following transfer,
Petitioner filed a supplemental opening brief. Respondent did not file a supplemental
brief. After we issued an opinion, we received a petition for rehearing from Respondent
informing us that Respondent had never been served with Petitioner’s supplemental

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opening brief and requesting that we accept Respondent’s supplemental brief. We
granted Respondent’s petition for rehearing and accepted Respondent’s supplemental
brief. Petitioner filed a supplemental responding brief. We have considered the
supplemental briefs.
                                      DISCUSSION
                                              I.

              In Light of Franklin, Petitioner Is Entitled to a Hearing to
                Make a Record of Mitigating Evidence Tied to Youth.
              We noted in Cook, supra, G050907, it was undisputed that Petitioner’s
sentence of 125 years to life was a de facto sentence of life without the possibility of
parole and that, when sentencing Petitioner, the trial court did not consider his age,
youthful attributes, and capacity for reform and rehabilitation. We concluded that Miller
applies retroactively to matters on collateral review. (Montgomery v. Louisiana, supra,
577 U.S. __ [136 S.Ct. 718].) As a consequence, we concluded, Petitioner’s sentence
was unconstitutional under Miller, supra, 567 U.S. at page __ [132 S.Ct. at page 2460]
and People v. Caballero (2012) 55 Cal.4th 262. (Cook, supra, G050907.) But we were
compelled by Montgomery v. Louisiana, supra, 577 U.S. __ [136 S.Ct. 718], to conclude
that Penal Code section 3051 cured the constitutional error in sentencing by giving
Petitioner the right to a parole hearing after serving 25 years of his sentence. (Cook,
supra, G050907.)
              The California Supreme Court’s order granting Petitioner’s petition for
review of our opinion transferred the matter to us with directions to vacate our decision
and consider, in light of Franklin, supra, 63 Cal.4th 261, “whether [P]etitioner is entitled
to make a record before the superior court of ‘mitigating evidence tied to his youth.’” In
Franklin, the defendant was 16 years old when he shot and killed the victim. (Id. at
p. 269.) A jury convicted the defendant of first degree murder and found true a personal
firearm-discharge enhancement. (Id. at p. 268.) The defendant was sentenced to two


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25-year-to-life sentences, giving him a total sentence of life in state prison with the
possibility of parole after 50 years. (Ibid.) The California Supreme Court concluded that
Penal Code sections 3051 and 4801 mooted the defendant’s claim that the sentence was
unconstitutional because “those statutes provide [the defendant] with the possibility of
release after 25 years of imprisonment (Pen. Code, § 3051, subd. (b)(3)) and require the
Board of Parole Hearings (Board) to ‘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’ (id., § 4801, subd. (c)).” (Franklin, supra, at p. 268.)
              The California Supreme Court also concluded, however, that the defendant
had raised “colorable concerns” over “whether he was given adequate opportunity at
sentencing to make a record of mitigating evidence tied to his youth.” (Franklin, supra,
63 Cal.4th at pp. 268-269.) The court explained: “The criteria for parole suitability set
forth in Penal Code sections 3051 and 4801 contemplate that the Board’s decisionmaking
at [the defendant]’s eventual parole hearing will be informed by youth-related factors,
such as his cognitive ability, character, and social and family background at the time of
the offense. Because [the defendant] was sentenced before the high court decided Miller
and before our Legislature enacted [Penal Code sections 3051 and 4801], the trial court
understandably saw no relevance to mitigation evidence at sentencing. In light of the
changed legal landscape, we remand this case so that the trial court may determine
whether [the defendant] was afforded sufficient opportunity to make such a record at
sentencing. This remand is necessarily limited; as section 3051 contemplates, [the
defendant]’s two consecutive 25-year-to-life sentences remain valid, even though the
statute has made him eligible for parole during his 25th year of incarceration.” (Id. at
p. 269.)
              The Supreme Court explained that if, after remand, the trial court were to
determine the defendant did not have sufficient opportunity to make a record at
sentencing, then “the court may receive submissions and, if appropriate, testimony

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pursuant to procedures set forth in [Penal Code] section 1204 and rule 4.437 of the
California Rules of Court, and subject to the rules of evidence.” (Franklin, supra, 63
Cal.4th at p. 284.) “[The defendant] 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 the juvenile offender’s culpability or cognitive
maturity, or otherwise bears on the influence of youth-related factors. The goal of any
such proceeding 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 ([Pen. Code,] § 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’ [citation].” (Ibid.)
              In this case, Petitioner asserts, “the record of [his] characteristics and
circumstances at the time of the offense is bare bones at best, with the probation officer’s
report consisting of less than a half page of ‘personal history’; as opposed to ensuring a
full and accurate record, the report noted that the information in that personal history
section was ‘not independently verified.’”
              We agree with Petitioner. In Franklin, supra, 63 Cal.4th at page 284, it
was “not clear” whether the defendant “had sufficient opportunity to put on the record the
kinds of information that [Penal Code] sections 3051 and 4801 deem relevant at a youth
offender parole hearing.” Here, in contrast, it is clear that Petitioner was not given
sufficient opportunity to make such a record. Petitioner’s sentence was imposed before
the decision in Miller and before enactment of Penal Code sections 3051 and 4801. We
noted in Cook that the trial court, when sentencing Petitioner, did not consider his age,
youthful attributes, and capacity for reform and rehabilitation. (Cook, supra, G050907.)



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              Thus, rather than direct the trial court to make the determination whether
Petitioner had sufficient opportunity at sentencing to make a record of “information that
will be relevant to the Board as it fulfills its statutory obligations under [Penal Code]
sections 3051 and 4801” (Franklin, supra, 63 Cal.4th at pp. 286-287), we will direct the
trial court to conduct a hearing at which Petitioner will have the opportunity to make such
a record.
                                             II.
                Relief Under Franklin Is Available on Habeas Corpus.
              Respondent asserts that relief by writ of habeas corpus is unavailable to
Petitioner because he is not challenging the legality of his restraint. Respondent argues:
“[H]abeas corpus has traditionally been limited to providing a forum for challenges to a
custodian’s legal authority to hold a petitioner in custody or otherwise restrain his liberty
or to the manner in which the petitioner is confined. It has not been used as a procedural
mechanism for reopening or supplementing otherwise closed proceedings for any less
fundamental purpose.” The relief offered by Franklin is, according to Respondent,
available only by direct review.
              The California Supreme Court’s order directing us to reconsider the matter
in light of Franklin strongly suggests the Supreme Court recognizes that the relief
afforded by that opinion is available by habeas corpus. Otherwise, it seems, the Supreme
Court would have denied the Petitioner’s petition for review.
              In any event, Respondent takes an overly narrow view of the scope of the
writ of habeas corpus. A previously convicted defendant may obtain relief by habeas
corpus when changes in case law expanding a defendant’s rights are given retroactive
effect. (E.g., In re Cortez (1971) 6 Cal.3d 78, 82-83 [new California Supreme Court
decision justifies habeas corpus relief]; In re Terry (1971) 4 Cal.3d 911, 916 [new United
States Supreme Court decision justifies habeas corpus relief]; In re Johnson (1970) 3
Cal.3d 404, 407-408, 409-410 [same].)

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               In Franklin, supra, 63 Cal.4th at pages 286-287, the California Supreme
Court in effect expanded the defendant’s rights by remanding the matter to the Court of
Appeal with instructions to remand to the trial court to determine whether the defendant
was afforded an adequate opportunity to make a record of information relevant to a future
determination under Penal Code sections 3051 and 4801. Franklin thus holds that a
defendant has the right at the time of sentencing to present evidence and make a record of
information that may be relevant at his or her eventual youth offender parole hearing.
               Changes in case law customarily are fully retroactive. (People v. Birks
(1998) 19 Cal.4th 108, 136; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207.)
There is an exception to the rule of retroactivity when a judicial opinion changes a settled
rule on which the parties had relied. (Claxton v. Waters (2004) 34 Cal.4th 367, 378.) In
that situation, “‘“[c]onsiderations of fairness and public policy may require that a
decision be given only prospective application.”’” (Ibid.) Franklin did not change any
settled rule on which the parties to this case relied in the trial court or on appeal. Nothing
in Franklin suggests the California Supreme Court intended it to be excepted from the
rule of full retroactivity.
               As the deprivation of the rights granted by Franklin is cognizable on habeas
corpus, we have inherent power to fashion the appropriate remedy (In re Crow (1971) 4
Cal.3d 613, 619-620, fn. 7) with consideration toward factors of justice and equity (In re
Harris (1993) 5 Cal.4th 813, 851). The appropriate remedy, we have concluded, is to
remand the matter to the trial court with directions to conduct a hearing at which
Petitioner will have the opportunity to make such a record.
               Respondent argues that Petitioner should not be afforded habeas corpus
relief because, as a practical matter, a hearing conducted 13 years after the commission of
the offenses and more than nine years after original sentencing would not be “an efficient
or effective way of seeking to augment the existing sentencing record with any further
evidence of [Petitioner]’s particular characteristics as a youthful offender in 2003.”

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According to Respondent, there is no guarantee the original sentencing judge will be
available to conduct the hearing, and the parties likely will have to be represented by new
defense counsel or prosecutors who might have no familiarity with the matter.
              The issues identified by Respondent are inherent in the remedy afforded by
Franklin, whether granted by direct appeal or collateral challenge. We take judicial
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notice of the Court of Appeal docket in People v. Franklin, which shows that nearly four
years elapsed from the date the notice of appeal was lodged (June 5, 2012) to the date on
which the Supreme Court issued its opinion (May 26, 2016). Thus, when the court in
Franklin remanded the matter for a determination whether the defendant had had the
opportunity to make a record of youth-related factors, it did so with the knowledge and
understanding that such determination and any evidentiary hearing would be conducted
more than four years after the date of original sentencing.
              As explained in Franklin, supra, 63 Cal.4th at page 269, the criteria for
parole suitability in Penal Code sections 3051 and 4801 “contemplate that the Board’s
decisionmaking at [the defendant]’s eventual parole hearing will be informed by
youth-related factors, such as his cognitive ability, character, and social and family
background at the time of the offense.” It would be most effective to make a record of
those youth-related factors as near in time as possible to the date of original sentencing.
Nine years after original sentencing is far from ideal, but it is better than the 15th, 20th,
or 25th year of incarceration, which are the possible times for the youth offender parole
hearing. (Pen. Code, § 3051, subd. (b)(1), (2) & (3).)




 1
   A print copy of the online Court of Appeal docket is attached to Petitioner’s
supplemental responding brief. We take judicial notice of the docket pursuant to
Evidence Code section 452, subdivision (h) as “[f]acts and propositions that are not
reasonably subject to dispute and are capable of immediate and accurate determination by
resort to sources of reasonably indisputable accuracy.”

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                                     DISPOSITION
              The petition for writ of habeas corpus is granted insofar as it challenges
Petitioner’s sentence of 125 years to life without affording Petitioner the opportunity to
make a record of mitigating evidence tied to his youth at the time the offense was
committed. The matter is remanded with directions to the trial court to conduct a hearing
at which Petitioner has the opportunity to make a record of such mitigating evidence.
The hearing must be conducted no later than 90 days from the date this opinion is final in
this court.




                                                  FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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