Filed 1/30/20




                                CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIFTH APPELLATE DISTRICT


    In re                                                             F076546

             KEVIN HOWERTON,                               (Kern Super. Ct. No. HC015497A)

                            On Habeas Corpus.                        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.
                                                 -ooOoo-
            Respondent 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.
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.


                                               2.
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

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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



                                              4.
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




                                             5.
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).)


                                               6.
       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.


                                               7.
       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.


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