Filed 5/26/16




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S217699
           v.                        )
                                     )                       Ct.App. 1/3 A135607
TYRIS LAMAR FRANKLIN,                )
                                     )                       Contra Costa County
           Defendant and Appellant.  )                    Super. Ct. No. 05-110301-9
____________________________________)


        Defendant Tyris Lamar Franklin was 16 years old at the time he shot and
killed another teenager. A jury convicted Franklin of first degree murder and
found true a personal firearm-discharge enhancement. The trial court was
obligated by statute to impose two consecutive 25-year-to-life sentences, so
Franklin‘s total sentence was life in state prison with the possibility of parole after
50 years.
        After Franklin was sentenced, the United States Supreme Court held that
the Eighth Amendment to the federal Constitution prohibits a mandatory life
without parole (LWOP) sentence for a juvenile offender who commits homicide.
(Miller v. Alabama (2012) 567 U.S. __, __ [132 S.Ct. 2455, 2460] (Miller).)
Shortly thereafter, we held in People v. Caballero (2012) 55 Cal.4th 262
(Caballero) that the prohibition on life without parole sentences for all juvenile
nonhomicide offenders established in Graham v. Florida (2010) 560 U.S. 48
(Graham) applied to sentences that were the ―functional equivalent of a life



                ~ SEE CONCURRING AND DISSENTING OPINION ~
without parole sentence,‖ including Caballero‘s term of 110 years to life.
(Caballero, at p. 268.) Franklin challenges the constitutionality of his 50-year-to-
life sentence under these authorities.
       We granted review to answer two questions: Does Penal Code section
3051 moot Franklin‘s constitutional challenge to his sentence by requiring that he
receive a parole hearing during his 25th year of incarceration? If not, then does
the state‘s sentencing scheme, which required the trial court to sentence Franklin
to 50 years to life in prison for his crimes, violate Miller‘s prohibition against
mandatory LWOP sentences for juveniles?
       We answer the first question in the affirmative: Penal Code sections 3051
and 4801 — recently enacted by the Legislature to bring juvenile sentencing in
conformity with Miller, Graham, and Caballero — moot Franklin‘s constitutional
claim. Consistent with constitutional dictates, those statutes provide Franklin 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)). In light of this holding, we need not decide whether a life
sentence with parole eligibility after 50 years of incarceration is the functional
equivalent of an LWOP sentence and, if so, whether it is unconstitutional in
Franklin‘s case.
       Although Franklin‘s constitutional claim has been mooted by the passage of
Senate Bill No. 260 (2013–2014 Reg. Sess.) (Senate Bill No. 260), he raises
colorable concerns as to whether he was given adequate opportunity at sentencing
to make a record of mitigating evidence tied to his youth. The criteria for parole
suitability set forth in Penal Code sections 3051 and 4801 contemplate that the
Board‘s decisionmaking at Franklin‘s eventual parole hearing will be informed by

                                           2
youth-related factors, such as his cognitive ability, character, and social and family
background at the time of the offense. Because Franklin was sentenced before the
high court decided Miller and before our Legislature enacted Senate Bill No. 260,
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 Franklin was afforded sufficient opportunity
to make such a record at sentencing. This remand is necessarily limited; as section
3051 contemplates, Franklin‘s two consecutive 25-years-to-life sentences remain
valid, even though the statute has made him eligible for parole during his 25th
year of incarceration.
                                          I.
       On January 10, 2011, Franklin, at age 16, murdered another 16-year-old
boy, Gene Grisby. Over the course of a one-year period preceding the crime,
Franklin had been involved in numerous and increasingly dangerous altercations
with a group of boys who lived in the Crescent Park housing project in Richmond
and referred to themselves as the ―Crescent Park gang.‖ At first, Franklin engaged
in fistfights with members of the Crescent Park gang, including Gene and another
juvenile named Kian. But the boys soon began to arm themselves. According to
Franklin and his grandmother, Crescent Park gang members had fired multiple
gunshots into his home while his family was inside. Franklin believed that Gene
associated with the individuals responsible for this incident. Crescent Park gang
members had also shot the windows out of Franklin‘s mother‘s car and slashed her
tires. Franklin also testified that the Friday before the murder, Kian and another
Crescent Park gang member had come to his classroom, where Kian pulled up his
shirt to display a gun on his hip. Franklin saw this gesture as a serious threat.
       After the incident at school, Franklin told his older brother, Demond, that
Kian had threatened him with a gun at school. This prompted Demond to loan

                                          3
him a .22-caliber pistol for protection the following Monday morning, the day of
the murder. That same day, Kian and other Crescent Park gang members attacked
Franklin‘s 13-year-old brother, Terrell. The attackers told Terrell that they were
also looking for Franklin. Demond called Franklin to inform him that Terrell had
been attacked.
       After learning about the attack, Franklin told his friends that Terrell had
been ―jumped‖ and asked an older teenager for a ride to the Crescent Park housing
complex. Franklin testified at trial that he was angry and afraid for his family. He
did not know what the Crescent Park gang was going to do next and wanted to
confront them. According to Franklin, he did not plan to shoot anyone but knew
there was a ―possibility that I might.‖
       Upon arriving at the housing complex, Franklin spotted Gene walking on a
street and asked the driver to unlock the car door. Another passenger in the car,
Khalifa, asked: ―Why we riding up on Gene when he don‘t have anything to do
with the situation?‖ According to Khalifa, Franklin answered something like, ―It
don‘t matter. He is from the Crescents‖ or ―It doesn‘t matter. They beat up my
brother.‖ According to another passenger, Jaswinder, Franklin said something
like, ―It doesn‘t matter. He‘s still from Crescent Park.‖
       As Franklin exited the car, he pulled the .22-caliber pistol from his
waistband. According to a witness who observed the murder from a balcony
across the street, Franklin walked around the car and, without saying anything,
shot Gene several times. The witness testified that Franklin began shooting
―shortly after he got out of the car‖ and before he reached Gene. Jaswinder and
Khalifa also did not hear any conversation between Franklin and Gene before
Franklin began shooting.
       Franklin testified that as he approached Gene, he asked, ―Which one of you
motherfuckers just jumped my little brother?‖ Gene replied, ―Fuck you and fuck

                                          4
your little brother.‖ Franklin testified that Gene‘s response angered him and made
him feel ―numb.‖ According to Franklin: ―It was like — it was so much. It was,
it was like everything just — I don‘t know, just — it just, I don‘t know. Like, I —
I wasn‘t in my body no more. It was like I don‘t remember everything like.‖
After shooting Gene, Franklin got back into the car, and the car sped off. Inside
the car, Franklin said something like, ―That Crescent Park dude is a sucker.‖
       Gene‘s aunt testified that when she heard the gunshots, she looked out the
window of the apartment where she and Gene lived and saw a young man with a
handgun fire multiple shots. A few minutes later, Gene ran through the front door
of the apartment, holding his right shoulder exclaiming, ―I‘ve been hit,‖ before
collapsing on the floor. Richmond police responded to the shooting and found
Gene on the floor of his apartment with multiple gunshot wounds to his head and
body. Gene was pronounced dead at the scene.
       The district attorney charged Franklin with first degree murder under Penal
Code section 187 and alleged a personal firearm-discharge enhancement under
Penal Code section 12022.53, subdivision (a)(1). (All undesignated statutory
references are to the Penal Code.) Because Franklin was charged with murder and
was 16 years of age at the time of the offense, the district attorney exercised his
discretion to file charges directly in criminal court rather than juvenile court.
(Welf. & Inst. Code, § 707, subds. (b), (d).) A jury convicted Franklin of first
degree murder and found true the firearm-personal discharge allegation.
       At sentencing, Franklin apologized for his crime: ―I do want to say I‘m
sorry, but sorry is a simple word, though. I didn‘t have no thoughts about killing
him, you know. I don‘t know. It‘s hard to explain. But I do want to apologize to
the family for taking your son, and I do want to apologize to my mother for taking
me away from her and my family. I want to say sorry, but, like I said, sorry is . . .
sorry can‘t explain the way I feel. Like you said you can‘t sleep at night. I can‘t

                                           5
sleep at night, either. I haven‘t been able to sleep at night for a lot of years now,
you know. I‘m not good with emotion, so I‘m . . . I really wish this didn‘t happen.
I wish I could have found another way, but, like I said, I want to say sorry, but
sorry is just — I don‘t know no other words to use. I don‘t know. I don‘t know.
I‘d like to say sorry to my mother, too. I would like to say sorry to each and every
one of you all for what I did.‖
       The trial court imposed a mandatory sentence of 25 years to life for the
murder (§ 190, subd. (a)) and a mandatory consecutive sentence of 25 years to life
for the firearm enhancement (§ 12022.53, subd. (d)) for a total term of 50 years to
life. Explaining the sentence, the court said: ―The sentence is the sentence that‘s
prescribed by law, not one that the Court chooses. And I will impose it in this
case, but first I just want to say a couple of words to both families. I see a lot of
pain in this courtroom all the time. And so often it‘s because of senseless things
that happen. And if there‘s a senseless case, this is a senseless case. We‘ve got
two young men‘s lives destroyed. . . . We‘ve lost two young men. And for what?
It‘s so senseless. I would have loved to have seen these two young men grow up
to be people, to be the people they‘re supposed to be, both of them. And neither of
them is going to have that opportunity. It‘s because of unspeakably stupid choices
that you made, Mr. Franklin. And I just hope that something can come out of this
that‘s productive. I‘m impressed with Gene[‘s] . . . family‘s dignity going through
this. Their empathy for Mr. Franklin‘s family and even Mr. Franklin. And I‘m
impressed with Mr. Franklin‘s family‘s understanding and empathy for [Gene]‘s
family. And if we can take something from this, I would love for it to be, get the
guns out of Richmond, get the violence out of Richmond, and don‘t have these
young black men going after each other because we see it so much in this
courthouse. And what ends up happening is we have some young men going to
prison for the best years of their lives at the least, and other young men who don‘t

                                           6
get to grow up. And how crazy is this? How crazy. So if both families can do
anything to try to make some sense and find some good out of this, work together
to try to get the guns out of Richmond, get the guns out of the pockets of these
young men who haven‘t got the frontal lobes yet to figure out how to deal with
their issues.‖
       Franklin appealed, arguing that the trial court made numerous instructional
and evidentiary errors and that, because he was 16 years old when he committed
the crime, his sentence violates the Eighth Amendment‘s prohibition against cruel
and unusual punishment as interpreted in Miller, supra, 567 U.S. __ [132 S.Ct.
2455]. The Court of Appeal affirmed Franklin‘s conviction and sentence. The
court assumed without deciding that ―the sentence, when imposed, violated the
Eighth Amendment and that had there been no intervening developments, remand
for resentencing would have been required.‖ But the court held that ―any potential
constitutional infirmity in [defendant‘s] sentence has been cured by the
subsequently enacted Penal Code section 3051, which affords youth offenders a
parole hearing sooner than had they been an adult.‖ Thus, ―defendant‘s sentence
is no longer the functional equivalent of an LWOP sentence and no further
exercise of discretion at this time is necessary.‖
       We granted review.
                                          II.
       As the trial court noted, Franklin‘s sentence was statutorily mandated at the
time it was imposed. The interaction of two features of California law gives rise
to the possibility of mandatory lengthy sentences for juvenile offenders:
(1) statutes authorizing and sometimes requiring a criminal court to exercise
jurisdiction over juvenile offenders and (2) statutes restricting the trial court‘s
discretion to impose concurrent sentences or to strike certain sentencing
enhancements.

                                           7
       Under Welfare and Institutions Code section 707, subdivision (d)(1), the
district attorney may file an accusatory pleading in criminal court without first
seeking authorization from a juvenile court in cases where ―a minor 16 years of
age or older is accused of committing one of the violent or serious offenses
enumerated in section 707, subdivision (b),‖ including murder. Here the district
attorney filed an accusatory pleading in criminal court because Franklin was a 16
year old accused of committing murder.
       Once a juvenile offender is tried and convicted in criminal court, the trial
court may be statutorily obligated to impose a lengthy sentence. In this case, the
jury convicted Franklin of first degree murder (§ 187) and found true an
enhancement for the personal and intentional discharge of a firearm that
proximately caused great bodily injury or death (§ 12022.53, subd. (d)).
Section 190, subdivision (a) required the trial court to impose a term of 25 years to
life for the murder, and section 12022.53, subdivision (d) required ―an additional
and consecutive term of imprisonment‖ of 25 years to life. Although section
1385, subdivision (c) provides trial courts with discretion to dismiss or strike the
additional punishment associated with an offense or enhancement ―in furtherance
of justice,‖ section 12022.53, subdivision (h) prohibits trial courts from striking a
firearm enhancement. (See People v. Chiu (2003) 113 Cal.App.4th 1260, 1265.)
The court was therefore required by statute to sentence Franklin to two
consecutive terms of 25 years to life.
       Section 3046, subdivision (a)(2) provides that an individual serving a life
sentence may not be paroled until he has served the ―minimum term or minimum
period of confinement under a life sentence before eligibility for parole.‖ Section
3046, subdivision (b) further provides that where, as here, two or more life
sentences are ordered to run consecutively, the inmate may not be paroled ―until
he or she has served the term specified in subdivision (a) on each of the life

                                          8
sentences.‖ In essence, where two indeterminate sentences run consecutively, a
defendant must serve the full minimum term of each before becoming eligible for
parole. (See People v. Felix (2000) 22 Cal.4th 651, 656.) The minimum term of
Franklin‘s sentence for murder is 25 years, as is the minimum term of his sentence
for the firearm enhancement. Thus, Franklin would first become eligible for
parole after 50 years of imprisonment at the age of 66.
                                         III.
       Franklin claims that this sentence violates the Eighth Amendment because
it is effectively a term of life without parole imposed by statute, without judicial
consideration of his youth and its relevance for sentencing. This claim is
grounded in a series of United States Supreme Court cases assigning constitutional
significance to characteristics of youth long known to common sense and
increasingly substantiated through science.
                                          A.
       The Eighth Amendment prohibition on cruel and unusual punishment
―guarantees individuals the right not to be subjected to excessive sanctions.‖
(Roper v. Simmons (2005) 543 U.S. 551, 560 (Roper); see Robinson v. California
(1962) 370 U.S. 660, 667 [Eighth Amend. is binding on the states through the 14th
Amend.].) This prohibition encompasses the ―foundational principle‖ that the
―imposition of a State‘s most severe penalties on juvenile offenders cannot
proceed as though they were not children.‖ (Miller, supra, 567 U.S. at p. __ [132
S.Ct. at p. 2466].) From this principle, the high court has derived a number of
limitations on juvenile sentencing: (1) no individual may be executed for an
offense committed when he or she was a juvenile (Roper, at p. 578); (2) no
juvenile who commits a nonhomicide offense may be sentenced to LWOP
(Graham, supra, 560 U.S. at p. 74); and (3) no juvenile who commits a homicide



                                          9
offense may be automatically sentenced to LWOP (Miller, at p. __ [132 S.Ct. at
p. 2460]).
       Miller addressed two cases, each of which involved a 14-year-old offender
tried as an adult, convicted of murder, and sentenced to LWOP under a state law
that did not allow the sentencing authority to impose a less severe punishment. In
prohibiting such mandatory LWOP sentences, the high court in Miller affirmed
and amplified its observations in Graham and Roper that children are
―constitutionally different . . . for purposes of sentencing‖ for several reasons
based ―not only on common sense — on what ‗any parent knows‘ — but on
science and social science as well.‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at
p. 2464]; see id. at p. __ [132 S.Ct. at p. 2464, fn. 5] [―the science and social
science supporting Roper‘s and Graham‘s conclusions have become even
stronger‖].) ―First, children have a ‗ ―lack of maturity and an underdeveloped
sense of responsibility,‖ ‘ leading to recklessness, impulsivity, and heedless risk-
taking. . . . Second, children ‗are more vulnerable . . . to negative influences and
outside pressures,‘ including from their family and peers; they have limited
‗contro[l] over their own environment‘ and lack the ability to extricate themselves
from horrific, crime-producing settings. . . . And third, a child‘s character is not
as ‗well formed‘ as an adult‘s; his traits are ‗less fixed‘ and his actions less likely
to be ‗evidence of irretrievabl[e] deprav[ity].‘ ‖ (Ibid., citations omitted.)
       These ―distinctive attributes of youth diminish the penological justifications
for imposing the harshest sentences on juvenile offenders, even when they commit
terrible crimes. Because ‗ ―[t]he heart of the retribution rationale‖ ‘ relates to an
offender‘s blameworthiness, ‗ ―the case for retribution is not as strong with a
minor as with an adult.‖ ‘ . . . Nor can deterrence do the work in this context,
because ‗ ―the same characteristics that render juveniles less culpable than
adults‖ ‘ — their immaturity, recklessness, and impetuosity — make them less

                                           10
likely to consider potential punishment. . . . Similarly, incapacitation could not
support the life-without-parole sentence in Graham: Deciding that a ‗juvenile
offender forever will be a danger to society‘ would require ‗mak[ing] a judgment
that [he] is incorrigible‘ — but ‗ ―incorrigibility is inconsistent with youth.‖ ‘. . .
And for the same reason, rehabilitation could not justify that sentence. Life
without parole ‗forswears altogether the rehabilitative ideal.‘ . . . It reflects ‗an
irrevocable judgment about [an offender‘s] value and place in society,‘ at odds
with a child‘s capacity for change.‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at
p. 2465], citations omitted.)
       Miller also relied on cases that have ―elaborated on the requirement that
capital defendants have an opportunity to advance, and the judge or jury a chance
to assess, any mitigating factors, so that the death penalty is reserved only for the
most culpable defendants committing the most serious offenses.‖ (Miller, supra,
567 U.S. at p. __ [132 S.Ct. at p. 2467], citing Woodson v. North Carolina (1976)
428 U.S. 280 and related cases.) These cases were relevant, the high court
explained, because Graham had ―likened life without parole for juveniles to the
death penalty itself.‖ (Miller, at p. __ [132 S.Ct. at p. 2463]; see id. at p. __ [132
S.Ct. at p. 2466] [―Imprisoning an offender until he dies alters the remainder of his
life ‗by a forfeiture that is irrevocable.‘ [Graham, supra, 560 U.S. at p. 69.]‖].)
       Based on the ―confluence‖ of the considerations above, the high court
concluded that ―in imposing a State‘s harshest penalties, a sentencer misses too
much if he treats every child as an adult.‖ (Miller, supra, 567 U.S. at pp. __, __
[132 S.Ct. at pp. 2464, 2468].) Miller thus held that a state may not require a
sentencing authority to impose LWOP on juvenile homicide offenders; the
sentencing authority must have individualized discretion to impose a less severe
sentence and, in exercising that discretion, must take into account a wide array of
youth-related mitigating factors. (Id. at pp. __–__ [132 S.Ct. at pp. 2468–2469].)

                                           11
While declining to decide whether ―the Eighth Amendment requires a categorical
bar on life without parole for juveniles, or at least for those 14 and younger‖ (id. at
p. __ [132 S.Ct. at p. 2469]), the high court concluded by saying: ―[G]iven all we
have said in Roper, Graham, and this decision about children‘s diminished
culpability and heightened capacity for change, we think appropriate occasions for
sentencing juveniles to this harshest possible penalty will be uncommon. That is
especially so because of the great difficulty we noted in Roper and Graham of
distinguishing at this early age between ‗the juvenile offender whose crime
reflects unfortunate yet transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption.‘ [Citations.] Although we do not foreclose a
sentencer‘s ability to make that judgment in homicide cases, we require it to take
into account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.‖ (Ibid.)
                                          B.
       Since Graham and Miller, courts throughout the country have examined
whether the high court‘s restrictions on LWOP sentences apply to lengthy
sentences with a release date near or beyond a juvenile‘s life expectancy. In
Caballero, we held that the defendant‘s 110-year sentence was the ―functional
equivalent‖ of life without parole and thus violated Graham‘s prohibition against
LWOP sentences for juvenile offenders convicted of nonhomicide crimes.
(Caballero, supra, 55 Cal.4th at p. 268; see Sumner v. Shuman (1987) 483 U.S.
66, 83 [―there is no basis for distinguishing . . . between an inmate serving a life
sentence without possibility of parole and a person serving several sentences of a
number of years, the total of which exceeds his normal life expectancy.‖].) But
we did not further elaborate what it means for a sentence to be the ―functional
equivalent‖ of LWOP, and we left open how our holding should be applied in the
case of a juvenile homicide offender. (Caballero, at p. 268, fn. 4.)

                                          12
       We now hold that just as Graham applies to sentences that are the
―functional equivalent of a life without parole sentence‖ (Caballero, supra, 55
Cal.4th at p. 268), so too does Miller apply to such functionally equivalent
sentences. As we noted in Caballero, Miller ―extended Graham‘s reasoning‖ to
homicide offenses, observing that ― ‗none of what [Graham] said about children—
about their distinctive (and transitory) mental traits and environmental
vulnerabilities—is crime-specific.‘ ‖ (Caballero, at p. 267, quoting Miller, supra,
567 U.S. at p. __ [132 S.Ct. at p. 2465].) Because sentences that are the functional
equivalent of LWOP implicate Graham‘s reasoning (Caballero, at p. 268), and
because ― ‗Graham‘s reasoning implicates any life-without-parole sentence
imposed on a juvenile‘ ‖ whether for a homicide or nonhomicide offense (id. at
p. 267, quoting Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2465]), a sentence
that is the functional equivalent of LWOP under Caballero is subject to the
strictures of Miller just as it is subject to the rule of Graham. In short, a juvenile
may not be sentenced to the functional equivalent of LWOP for a homicide
offense without the protections outlined in Miller.
                                          IV.
       As noted, Franklin would first become eligible for parole at age 66 under
the sentence imposed by the trial court. That sentence was mandatory; the trial
court had no discretion to consider Franklin‘s youth as a mitigating factor.
According to Franklin, the 50-year-to-life sentence means he will not experience
any substantial period of normal adult life; instead, he will either die in prison or
have the possibility of geriatric release. He contends that his sentence is the
―functional equivalent‖ of LWOP (Caballero, supra, 55 Cal.4th at p. 268) and that
it was imposed without the protections set forth in Miller.
       After Franklin‘s sentencing, the Legislature passed Senate Bill No. 260,
which became effective January 1, 2014, and added sections 3051, 3046,

                                          13
subdivision (c), and 4801, subdivision (c) to the Penal Code. The Attorney
General contends these new provisions entitle Franklin to a parole hearing during
his 25th year in prison and thus renders moot any infirmity in Franklin‘s sentence
under Miller. We agree with the Attorney General: Senate Bill No. 260 has
mooted Franklin‘s claim under Miller. As explained below, section 3051 has
superseded Franklin‘s sentence so that notwithstanding his original term of 50
years to life, he is eligible for a ―youth offender parole hearing‖ during the 25th
year of his sentence. Crucially, the Legislature‘s recent enactment also requires
the Board not just to consider but 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 of the prisoner in accordance with
relevant case law.‖ (§ 4801, subd. (c).) For those juvenile offenders eligible for
youth offender parole hearings, the provisions of Senate Bill No. 260 are designed
to ensure they will have a meaningful opportunity for release no more than 25
years into their incarceration.
       Our interpretation of section 3051 begins with the recognition that the
Legislature passed Senate Bill No. 260 explicitly to bring juvenile sentencing into
conformity with Graham, Miller, and Caballero. Section 1 of the enactment states
in part: ―The purpose of this act 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, in accordance with the decision of the
California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 and the
decisions of the United States Supreme Court in Graham v. Florida (2010) 560
U.S. 48, and Miller v. Alabama (2012) 183 L.E.2d 407. . . . It is the intent of the
Legislature to create a process by which growth and maturity of youthful offenders
can be assessed and a meaningful opportunity for release established.‖ (Stats.

                                          14
2013, ch. 312, § 1.) Since its passage, the statute and associated Penal Code
provisions have been amended to apply to offenders sentenced to state prison for
crimes committed when they were under 23 years of age. (Stats. 2015, ch. 471.)
       At the heart of Senate Bill No. 260 was the addition of section 3051, which
requires the Board to conduct a ―youth offender parole hearing‖ during the 15th,
20th, or 25th year of a juvenile offender‘s incarceration. (§ 3051, subd. (b).) The
date of the hearing depends on the offender‘s ―controlling offense,‖ which is
defined as ―the offense or enhancement for which any sentencing court imposed
the longest term of imprisonment.‖ (Id., subd. (a)(2)(B).) A juvenile offender
whose controlling offense carries a term of 25 years to life or greater is ―eligible
for release on parole by the board during his or her 25th 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.‖ (Id.,
subd. (b)(3).) The statute excludes several categories of juvenile offenders from
eligibility for a youth offender parole hearing: those who are sentenced under the
Three Strikes Law (§§ 667, subds. (b)–(i), 1170.12) or Jessica‘s Law (§ 667.61),
those who are sentenced to life without parole, and those who commit another
crime ―subsequent to attaining 23 years of age . . . for which malice aforethought
is a necessary element of the crime or for which the individual is sentenced to life
in prison.‖ (§ 3051, subd. (h); see Stats. 2015, ch. 471, § 1 [changing the age after
which malice aforethought crimes are disqualifying from 18 to 23].)
       Section 3051 thus reflects the Legislature‘s judgment that 25 years is the
maximum amount of time that a juvenile offender may serve before becoming
eligible for parole. Apart from the categories of offenders expressly excluded by
the statute, section 3051 provides all juvenile offenders with a parole hearing
during or before their 25th year of incarceration. The statute establishes what is,
in the Legislature‘s view, the appropriate time to determine whether a juvenile

                                          15
offender has ―rehabilitated and gained maturity‖ (Stats. 2013, ch. 312, § 1) so that
he or she may have ―a meaningful opportunity to obtain release‖ (§ 3051,
subd. (e)).
       Sections 3051 and 3046 have thus superseded the statutorily mandated
sentences of inmates who, like Franklin, committed their controlling offense
before the age of 18. The statutory text makes clear that the Legislature intended
youth offender parole hearings to apply retrospectively, that is, to all eligible youth
offenders regardless of the date of conviction. Section 3051, subdivision (b)
makes eligible all persons ―convicted of a controlling offense that was committed
before the person had attained 23 years of age.‖ In addition, section 3051,
subdivision (i) says: ―The board shall complete all youth offender parole hearings
for individuals who become entitled to have their parole suitability considered at a
youth offender parole hearing on the effective date of this section by July 1,
2015.‖ This provision would be meaningless if the statute did not apply to
juvenile offenders already sentenced at the time of enactment.
       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 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

                                          16
resentencing procedure required. (Cf. State v. Mares (Wyo. 2014) 335 P.3d 487,
498 [holding that a similar statute had ―converted‖ juvenile offenders‘ sentences
―by the operation of the amended statutes‖ regardless of when those juveniles
were originally sentenced, and that no judicial intervention was required to
effectuate their new parole eligibility].)
       In this case, the trial court sentenced Franklin to a mandatory term of 25
years to life under section 190 for first degree murder and to a consecutive
mandatory term of 25 years to life under section 12022.53 on the firearm
enhancement. Either the homicide offense or the firearm enhancement could be
considered the ―controlling offense‖ under section 3051, subdivision (a)(2)(B).
Regardless of which is considered controlling, Franklin is a ―person who was
convicted of a controlling offense that was committed before the person had
attained 23 years of age and for which the sentence is a life term of 25 years to
life.‖ (§ 3051, subd. (b)(3).) As such, Franklin ―shall be eligible for release on
parole by the board during his . . . 25th year of incarceration at a youth offender
parole hearing.‖ (Ibid.)
       Franklin does not argue that a life sentence with parole eligibility during his
25th year of incarceration, when he will be 41 years old, is the functional
equivalent of LWOP. We conclude that such a sentence is not the functional
equivalent of LWOP, and we are not aware of any court that has so held. Instead,
Franklin urges us to conclude that his 50-year-to-life sentence is the functional
equivalent of LWOP and, in light of that conclusion, to ―construe [section
12022.53, subdivision (h)‘s] prohibition on striking section 12022.53
enhancements as inapplicable to cases involving juvenile offenders, in which
imposition of the enhancement would result in a functional life without parole
sentence.‖ He seeks relief in the form of resentencing whereby the trial court
would strike the firearm enhancement and impose only a single term of 25 years to

                                             17
life for the first degree murder. But we see no basis for rewriting section
12022.53, subdivision (h)‘s prohibition on striking firearm allegations in light of
the Legislature‘s determination that inmates such as Franklin, despite the
mandatory character of their original sentences, are now entitled to a youth
offender parole hearing during their 25th year of incarceration. Even if section
12022.53, subdivision (h) could be construed to authorize the trial court to strike
the firearm enhancement, it is not clear how the imposition of a single term of 25
years to life for first degree murder would put Franklin in a better or different
position, from the standpoint of Miller‘s concerns, than section 3051‘s
requirement of a youth offender parole hearing during his 25th year of
incarceration.
       In sum, the combined operation of section 3051, section 3046, subdivision
(c), and section 4801 means that Franklin is now serving a life sentence that
includes a meaningful opportunity for release during his 25th year of
incarceration. Such a sentence is neither LWOP nor its functional equivalent.
Because Franklin is not serving an LWOP sentence or its functional equivalent, no
Miller claim arises here. The Legislature‘s enactment of Senate Bill No. 260 has
rendered moot Franklin‘s challenge to his original sentence under Miller.
       Our mootness holding is limited to circumstances where, as here, section
3051 entitles an inmate to a youth offender parole hearing against the backdrop of
an otherwise lengthy mandatory sentence. We express no view on Miller claims
by juvenile offenders who are ineligible for such a hearing under section 3051,
subdivision (h), or who are serving lengthy sentences imposed under discretionary
rather than mandatory sentencing statutes.
                                          V.
       Franklin and amicus curiae Post-Conviction Justice Project of the
University of Southern California Gould School of Law (PCJP) advance a number

                                          18
of arguments against the conclusion that his Miller claim is moot. In addition,
Franklin has requested that we take judicial notice of four amicus curiae briefs
filed in In re Alatriste (review granted Feb. 19, 2014, S214652) and In re Bonilla
(review granted Feb. 19, 2014, S214960). ― ‗A court may take judicial notice of
the [e]xistence of each document in a court file, but can only take judicial notice of
the truth of facts asserted in documents such as orders, findings of fact and
conclusions of law, and judgments.‘ ‖ (Day v. Sharp (1975) 50 Cal.App.3d 904,
914, italics omitted; see Evid. Code, § 452, subd. (d) [―Records of . . . any court of
this state‖ are among the matters that may be judicially noticed].) Because
Franklin does not argue that the existence (as opposed to the content) of these
briefs is relevant here, we deny his request for judicial notice.
                                          A.
       Franklin relies on our reasoning in People v. Gutierrez (2014) 58 Cal.4th
1354, 1386–1387 (Gutierrez), that the availability of a procedure under section
1170, subdivision (d)(2) to petition for recall an LWOP sentence after a juvenile
offender has served 15 years in prison does not remedy the constitutional difficulty
under Miller of applying a presumption in favor of LWOP under section 190.5,
subdivision (b) in cases of special circumstance murder. In Gutierrez, the
Attorney General argued that section 1170, subdivision (d)(2) ―eliminate[d] any
constitutional problems‖ arising from an otherwise unconstitutional LWOP
sentence because the possibility of recall and resentencing converted the juvenile‘s
sentence to a term other than LWOP. (Gutierrez, supra, 58 Cal.4th at p. 1384.)
We rejected this contention and held that ―Graham spoke of providing juvenile
offenders with a ‗meaningful opportunity to obtain release‘ as a constitutionally
required alternative to — not as an after-the-fact corrective for — ‗making the
judgment at the outset that those offenders never will be fit to reenter society.‘ ‖
(Gutierrez, supra, 58 Cal.4th at p. 1386, quoting Graham, supra, 560 U.S. at

                                          19
p. 75.) According to Franklin, section 3051, like section 1170, subdivision (d)(2),
does not satisfy the mandate of Miller because it permits a trial court to abdicate
its responsibility to ensure that a juvenile offender‘s sentence comports with the
Eighth Amendment ― ‗at the outset.‘ ‖ (Gutierrez, supra, 58 Cal.4th at p. 1386,
quoting Graham, supra, 560 U.S. at p. 75.)
       But this argument misses a crucial difference between section 3051 and
section 1170, subdivision (d)(2). Section 1170, subdivision (d)(2)(A)(i) provides
that a juvenile offender sentenced to LWOP may, after serving at least 15 years of
that sentence, ―submit to the sentencing court a petition for recall and
resentencing.‖ If sentencing court determines ―by a preponderance of the
evidence that the statements in the petition are true,‖ the court ―shall hold a
hearing to consider whether to recall the sentence . . . and to resentence the
defendant‖ to a term not exceeding that of the defendant‘s original sentence.
(§ 1170, subd. (d)(2)(E).) In deciding whether to recall the sentence and
resentence the defendant, the statute instructs the court to consider a variety of
factors addressing his culpability for the original offense and efforts toward
rehabilitation. (§ 1170, subd. (d)(2)(F).) If the court does not recall the sentence,
the defendant may petition again after serving 20 years and, if unsuccessful, again
after serving 24 years. (§ 1170, subd. (d)(2)(H).)
       Section 3051, by contrast, effectively reforms the parole eligibility date of a
juvenile offender‘s original sentence so that the longest possible term of
incarceration before parole eligibility is 25 years. Section 1170, subdivision (d)(2)
has no similar effect on a juvenile offender‘s LWOP sentence; it provides that a
juvenile offender may, after serving 15 years of an LWOP sentence, petition a
court for recall of the original sentence. In Gutierrez, the trial court had imposed
an LWOP sentence without considering youth-based mitigating factors in the
manner required by Miller; Gutierrez was sentenced under a scheme that

                                          20
presumed his incorrigibility ― ‗at the outset,‘ ‖ and the resulting sentence would
remain in effect unless and until he filed a successful petition for recall.
(Gutierrez, supra, 58 Cal.4th at p. 1386–1387; see id. at p. 1386 [―A sentence of
life without parole under section 190.5(b) remains fully effective after the
enactment of section 1170(d)(2).‖].) Franklin is not subject to a sentence that
presumes his incorrigibility; by operation of law, he is entitled to a parole hearing
and possible release after 25 years of incarceration. Unlike Gutierrez, Franklin is
not serving an LWOP sentence or its functional equivalent, so the constitutional
requirements for properly evaluating a juvenile offender‘s incorrigibility ― ‗at the
outset‘ ‖ do not apply here. (Ibid.)
                                          B.
       Franklin contends that because ―the youthful parole hearing system is
completely administrative,‖ it cannot fulfill Miller‘s mandate that a judge consider
the relevance of his youth for sentencing. But the relief Franklin himself seeks —
a remand for resentencing to a single term of 25 years to life on the murder charge
— would still mean that his ultimate release date will be determined by an
administrative decisionmaker. Miller did not restrict the ability of states to impose
life with parole sentences on juvenile offenders; such sentences necessarily
contemplate that a parole authority will decide whether a juvenile offender is
suitable for release.
                                          C.
       Although nothing in Miller prohibits reliance on an administrative hearing
to determine Franklin‘s ultimate release date, Franklin contends that the statutory
scheme does not set forth adequate procedures to ensure a ―meaningful
opportunity for release‖ (§ 3051, subd. (e)) and that his sentence, even with parole
eligibility during his 25th year of incarceration, thus remains the functional
equivalent of a mandatory LWOP sentence imposed in violation of Miller. Senate

                                          21
Bill No. 260 directs the administrative entity that will determine if and when
Franklin is released to ―give great weight‖ (§ 4801, subd. (c)) to the salient
characteristics of youth outlined in Miller, Graham, and Caballero. Franklin
argues that the Board will not be able to give great weight to these characteristics
at a youth offender parole hearing because ―there would be no reliable way to
measure his cognitive abilities, maturity, and other youth factors when the offense
was committed 25 years prior.‖
       Franklin notes that his own sentencing proceeding resulted in a record that
may be incomplete or missing mitigation information because the trial court
deemed such information irrelevant to its pronouncement of his mandatory
sentence. Franklin was sentenced in 2011, before the high court‘s decision in
Miller and before our Legislature‘s enactment of Senate Bill No. 260 in response
to Miller, Graham, and Caballero. When Franklin‘s attorney did not receive a
probation report until the morning of sentencing, the trial court acknowledged that
this delay would ordinarily merit a continuance. But the court, recognizing that it
lacked discretion in sentencing Franklin, proceeded with sentencing and allowed
the defense to submit mitigation information at a later date. At the post sentencing
hearing where these materials were submitted, Franklin‘s attorney raised concerns
about the record at his eventual parole hearing. In response, the trial court said, ―it
sort of doesn‘t matter because the statute mandates the sentence here. So there‘s
no basis and occasion for any findings to be made on aggravation and mitigation at
all.‖ The court eventually admitted a mitigating statement submitted by Franklin
and a handwritten note from his mother. But the court expressed ―misgiving‖ that
because of the mandatory sentences, ―[a]t no point in the process is anyone, other
than the district attorney‘s office, ever able to really consider that this is a
juvenile.‖



                                           22
       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)). These statutory provisions echo
language in constitutional decisions of the high court and this court. (See Miller,
supra, 567 U.S. at p. __ [132 S.Ct. at p. 2468] [―chronological age and its
hallmark features‖]; Graham, supra, 560 U.S. at p. 75 [―meaningful opportunity to
obtain release‖]; Roper, supra, 543 U.S. at p. 571 [―diminished culpability of
juveniles‖]; accord, Caballero, supra, 55 Cal.4th at p. 268, fn. 4.) The core
recognition underlying this body of case law is that children are, as a class,
―constitutionally different from adults‖ due to ―distinctive attributes of youth‖ that
―diminish the penological justifications for imposing the harshest sentences on
juvenile offenders.‖ (Miller, at p. __ [132 S.Ct. at p. 2458].) Among these
―hallmark features‖ of youth are ―immaturity, impetuosity, and failure to
appreciate risks and consequences,‖ as well as the capacity for growth and change.
(Id. at pp. __, __ [132 S.Ct. at pp. 2465, 2468].) It is because of these ―marked
and well understood‖ differences between children and adults (Roper, at p. 572)
that the law categorically prohibits the imposition of certain penalties, including
mandatory LWOP, on juvenile offenders. (Montgomery v. Louisiana (2016) 577
U.S.__, __–__ [136 S.Ct. 718, 732–737].)
       In directing the 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 of the prisoner‖ (§ 4801, subd. (c)), the
statutes also contemplate that information regarding the juvenile offender‘s
characteristics and circumstances at the time of the offense will be available at a

                                          23
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. 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.
       It is not clear whether Franklin had sufficient opportunity to put on the
record the kinds of information that sections 3051 and 4801 deem relevant at a
youth offender parole hearing. Thus, although Franklin need not be resentenced
— as explained (ante, at pp. 14–20), Franklin‘s two consecutive 25-year-to-life
sentences remain valid, even though section 3051, subdivision (b)(3) has altered
his parole eligibility date by operation of law — we remand 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.
       If the trial court determines that Franklin did not have sufficient
opportunity, then the court may receive submissions and, if appropriate, testimony
pursuant to procedures set forth in section 1204 and rule 4.437 of the California
Rules of Court, and subject to the rules of evidence. Franklin may place on the

                                          24
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 (§ 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‖ (Graham, supra, 560 U.S. at p. 79).
                                         D.
       Finally, amicus curiae PCJP contends that despite the announced purpose
of Senate Bill No. 260, youth offender parole hearings will not, in practice, ―afford
the juvenile offender a ‗meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation‘ ‖ (Caballero, supra, 55 Cal.4th at
p. 266, quoting Graham, supra, 560 U.S. at p. 73) and therefore cannot render
moot a Miller challenge to a lengthy mandatory sentence that is functionally
equivalent to LWOP. PCJP‘s argument subsumes several concerns distinct from
those we have considered above.
       First, although the Governor, like the Board, is required 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 of
the prisoner in accordance with relevant case law‖ (§ 4801, subd. (c); see Cal.
Const., art. V, § 8; Pen. Code, § 3041.2; In re Rosenkrantz (2002) 29 Cal.4th 616,
664), PCJP notes that the Governor, in reviewing Board decisions that find
persons serving an indeterminate term for murder suitable for parole, has

                                         25
historically reversed such decisions at a very high rate. Second, PCJP observes
that judicial review of parole denials is ―highly deferential‖ and limited to
determining ―whether a modicum of evidence supports the parole suitability
decision.‖ (In re Shaputis (2011) 53 Cal.4th 192, 221.) Third, PCJP contends that
some of the suitability criteria used by the Board run counter to the high court‘s
observations concerning the mitigating attributes of youth. For example, a finding
that ―[t]he motive for the crime is inexplicable or very trivial in relation to the
offense‖ is a factor tending to show unsuitability (Cal. Code Regs., tit. 15, § 2281,
subd. (c)(1)(E)), even though ―such a motive correlates with hallmark features of
youth like ‗impetuosity, and failure to appreciate risks and consequences.‘ ‖ An
unstable social history also counts against suitability (id., subd. (c)(3)), even
though youth ― ‗are more vulnerable . . . to negative influences and outside
pressures . . . [,] have limited control over their own environment and lack the
ability to extricate themselves from horrific, crime-producing settings.‘ (Miller,
supra, at p. __ [132 S.Ct. at p. 2464].)‖ Fourth, PCJP argues that developing a
record of mitigation focused on youth-related attributes for the purpose of a youth
offender parole hearing is ―unachievable in practice‖ given resource constraints.
And fifth, PCJP contends that juvenile offenders serving lengthy sentences have
little access to education and rehabilitative programs that may serve to forestall
―the perverse consequence in which the lack of maturity that led to an offender‘s
crime is reinforced by the prison term.‖ (Graham, supra, 560 U.S. at p. 79.)
       We have no occasion in this case to express any view on the concerns
raised by PCJP. As noted, the Legislature enacted Senate Bill No. 260 with ―the
intent . . . to create a process by which growth and maturity of youthful offenders
can be assessed and a meaningful opportunity for release established.‖ (Stats.
2013, ch. 312, § 1.) Section 4801, subdivision (c) directs that the Board, in
conducting a youth offender parole hearing, ―shall give great weight to the

                                          26
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.‖ And section 3051, subdivision (e) says: ―The
youth offender parole hearing to consider release shall provide for a meaningful
opportunity to obtain release. The board shall review and, as necessary, revise
existing regulations and adopt new regulations regarding determinations of
suitability made pursuant to this section, subdivision (c) of Section 4801, and other
related topics, consistent with relevant case law, in order to provide that
meaningful opportunity for release.‖
       As of this writing, the Board has yet to revise existing regulations or adopt
new regulations applicable to youth offender parole hearings. In advance of
regulatory action by the Board, and in the absence of any concrete controversy in
this case concerning suitability criteria or their application by the Board or the
Governor, it would be premature for this court to opine on whether and, if so, how
existing suitability criteria, parole hearing procedures, or other practices must be
revised to conform to the dictates of applicable statutory and constitutional law.
So long as juvenile offenders have an adequate opportunity to make a record of
factors, including youth-related factors, relevant to the eventual parole
determination, we cannot say at this point that the broad directives set forth by
Senate Bill No. 260 are inadequate to ensure that juvenile offenders have a
realistic and meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.
                                   CONCLUSION
       The high court has made clear that ―imposition of a State‘s most severe
penalties on juvenile offenders cannot proceed as though they were not children.‖
(Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2466].) ―It is for the State, in the
first instance, to explore the means and mechanisms for compliance‖ with this

                                          27
directive. (Graham, supra, 560 U.S. at p. 75.) The Legislature has devised such a
means by enacting section 3051 and related statutes in Senate Bill No. 260. Those
statutes have effectively reformed Franklin‘s statutorily mandated sentence so that
he will become eligible for parole, at a hearing that must give great weight to
youth-related mitigating factors, during his 25th year of incarceration. By
operation of law, Franklin‘s sentence is not functionally equivalent to life without
parole, and the record here does not include evidence that the Legislature‘s
mandate that youth offender parole hearings must provide for a meaningful
opportunity to obtain release is unachievable in practice. We thus conclude that
Franklin‘s Eighth Amendment challenge to his original sentence has been
rendered moot.
       For the reasons above, we affirm Franklin‘s sentence but remand the matter
to the Court of Appeal with instructions to remand to the trial court for the limited
purpose of determining whether Franklin was afforded an adequate opportunity to
make a record of information that will be relevant to the Board as it fulfills its
statutory obligations under sections 3051 and 4801.
                                                   LIU, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.




                                          28
    CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.



       Defendant Tyris Lamar Franklin was sentenced to prison for a term of 50
years to life for his conviction of first degree murder using a firearm (Pen. Code,
§§ 187, 12022.53),1 committed when he was 16 years old. I agree with the
majority that the question whether his sentence may be considered the equivalent
of life in prison with no possibility of parole (LWOP), and thus subject to United
States Constitution Eighth Amendment limits (Miller v. Alabama (2012) 567 U.S.
___ [183 L.Ed.2d 407, 132 S.Ct. 2455] (Miller)), is moot following the
Legislature‘s passage of legislation giving defendant the opportunity for a youth
offender parole hearing after 25 years of incarceration.
       I part company with the majority over its further conclusion that we must
remand the case ―for a determination of whether Franklin was afforded sufficient
opportunity to make a record of information relevant to his eventual youth
offender parole hearing.‖ (Maj. opn., ante, at p. 24.) Notably, the majority does
not claim a remand for what might be termed a ―baseline hearing‖ is
constitutionally mandated by Miller, supra, 567 U.S. ___ [183 L.Ed.2d 407, 132
S.Ct. 2455]. Rather, the premise of the majority‘s remand for a baseline hearing is
statutory. No statute, of course, specifically authorizes such hearings. The


1      All further statutory references are to the Penal Code.

                                          1
majority, however, reasons that because the statutory scheme directs the Board of
Parole Hearings (Board) to give ―great weight to . . . any subsequent growth and
increased maturity of the prisoner‖ (§ 4801, subd. (c)), the statutes ―contemplate
. . . information regarding the juvenile offender‘s characteristics and circumstances
at the time of the offense will be available.‖ (Maj. opn., ante, p. 23.)
       The Legislature‘s charge to the Board at future youth offender parole
hearings is to give the individual ―a meaningful opportunity to obtain
release.‖ (§ 3051, subd. (e).) To this end, 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 in
accordance with relevant case law.‖ (§ 4801, subd. (c), italics added.) Family
members and others ―with knowledge about the individual before the crime or his
or her growth and maturity since the time of the crime may submit statements for
review by the board.‖ (§ 3051, subd. (f)(2).) But to ―contemplate‖ that such
information may be taken into consideration is not to mandate procedures to
enable the offender at the time of sentence or, for those sentenced before
enactment of the statute, years after judgment is final, to make a record of such
information, including live testimony and the opportunity for cross-examination,
in effect a new sentence hearing. No ―relevant case law‖ (§ 3051, subd. (e);
§ 4801, subd. (c)) so requires. Indeed, what case law establishes is that youth and
immaturity differentiate juvenile offenders from adults and must be taken into
account in connection with sentencing; youthful offenders should not be viewed as
incorrigible, but subject to growth and maturity. (Miller, supra, 567 U.S. ___ at
p. ___ [183 L.Ed.2d at pp. 419, 420, 132 S.Ct. at p. 2465] [a finding of
incorrigibility is ― ‗ ―inconsistent with youth‖ ‘ ‖ and ―at odds with a child‘s
capacity for change‖]; Graham v. Florida (2010) 560 U.S. 48, 74 [LWOP is
incompatible with juvenile offender‘s ―capacity for change‖].) Statutory

                                           2
authorization for the Board, in its discretion, to use ―psychological evaluations and
risk assessment instruments‖ administered by licensed psychologists (§ 3051,
subd. (f)(1)) supports the conclusion the Legislature intended the Board‘s focus to
be on the prisoner‘s current circumstances, his or her maturity and efforts at
rehabilitation, irrespective of the particular factors that may have influenced him
or her at the time of the offense. Such assessments and evaluations are viewed as
informative of themselves without regard to any baseline of the individual
offender.
       In sum, I am unpersuaded a youthful offender will be deprived of a
―meaningful opportunity to obtain release‖ (§ 3051, subd. (e)), or that the Board
will be unable to fairly consider a youthful offender‘s diminished culpability, later
growth, or increased maturity (§ 4801, subd. (c)), unless we impose on the trial
courts a new, judicially created, extra statutory procedure entitling such offenders
to a type of penalty phase trial, replete with opposing experts and family members
and friends, subject to cross-examination, testifying to the offender‘s youthful
immaturity. The statutory scheme, in my view, does not bear the weight of the
majority‘s conclusion that such a hearing is required to effectuate its purpose of
affording a youthful offender a meaningful opportunity to obtain release. Rather,
in borrowing the ―diminished culpability‖ of juveniles and the ―hallmark features‖
of youth language from Miller, supra, 567 U.S. at pages ___ and ___ [183 L.Ed.2d
at pp. 418 & 423, 132 S.Ct. at pp. 2464 & 2468], and inserting it in section 4801,
subdivision (c), the Legislature signaled its agreement with the United States
Supreme Court that those factors are inherent in juveniles and are generally
deemed to mitigate the culpability of a juvenile who has committed a severe
crime. The focus of the statutory scheme is the psychological growth and
―increased maturity‖ of the youthful offender (§ 4801, subd. (c)), now an adult, as
manifested by his or her behavior and efforts to rehabilitate himself or herself

                                          3
during his incarceration, as against his or her presumed immaturity at the time of
the offense.

       Had the Legislature intended—or ―contemplated,‖ as the majority fashions
it—that a youthful offender at the time of his or her sentencing (or thereafter if
sentence was imposed before enactment of the statute) would have the opportunity
to make a record of his or her character and the influences and circumstances of
the offense in order to provide a meaningful opportunity for future parole, it surely
would have said so. Instead, it provided the offender the opportunity at the time of
the hearing to submit, in the form of ―statements‖ (§ 3051, subd. (f)(2)), such
information as may be available, and provided the Board the option to consider the
results of psychological testing (id., subd. (f)(1)). Absent more specific legislative
authorization, I disagree with my colleagues that, in order to effectuate the
Legislature‘s purpose,2 we must now remand the case to permit the trial court to
determine whether defendant ―was afforded an adequate opportunity to make a
record of information that will be relevant [in a future parole hearing].‖ (Maj.
opn., ante, p. 28.)

       Unless we find the Legislature‘s statutory response to Miller, supra, 567
U.S. ___ [183 L.Ed.2d 407, 132 S.Ct. 2455], failed to cure the potential Eighth

2        The preface to the relevant legislation declared in pertinent part: ―The
purpose of this act 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, in accordance with the decision of the California
Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 and the decisions of
the United States Supreme Court in Graham v. Florida (2010) 560 U.S. 48, and
Miller v. Alabama (2012) 183 L.Ed.2d 407.‖ (Stats. 2013, ch. 312, § 1.) Further:
―It is the intent of the Legislature to create a process by which growth and
maturity of youthful offenders can be assessed and a meaningful opportunity for
release established.‖ (Ibid.)

                                          4
Amendment problem associated with imposing an LWOP term (or its equivalent)
on a juvenile offender, or that the current scheme would be absurd without
providing youthful offenders with a baseline hearing (Ennabe v. Manosa (2014)
58 Cal.4th 697, 721 [courts will not give statutes a literal meaning if doing so
leads to absurd consequences]), we should not rewrite the statute to provide for
such hearings. ― ‗[A]s this court has often recognized, the judicial role in a
democratic society is fundamentally to interpret laws, not to write them. The latter
power belongs primarily to the people and the political branches of government
. . . .‘ [Citation.] It cannot be too often repeated that due respect for the political
branches of our government requires us to interpret the laws in accordance with
the expressed intention of the Legislature. ‗This court has no power to rewrite the
statute so as to make it conform to a presumed intention which is not expressed.‘ ‖
(California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997)
14 Cal.4th 627, 633.)
       I have no doubt that affording youthful life prisoners the opportunity for a
baseline hearing could well inure to their benefit in any future parole hearing. For
that reason, we may now anticipate petitions for such hearings will be filed in
numerous courts throughout California as juvenile life prisoners (and those
youthful offenders who have been sentenced to the equivalent of LWOP) seek to
take advantage of this court‘s ruling. Indeed, holding periodic update hearings to
evaluate a youthful offender‘s progress towards parole suitability would also be
beneficial. So, too, might it be for adult offenders. But this court is not authorized
to create and require such procedures simply because they might be a good idea.
       In short, judicial restraint counsels that we hesitate to create on our own
initiative new procedural rules neither constitutionally nor legislatively required in
the guise of implementing an unexpressed legislative intent. The Legislature is in
the best position, as the Board begins to discharge its responsibilities under the

                                            5
new youth offender parole hearing statutes, to consider and implement any new
evidentiary procedures that experience may suggest would be necessary or
desirable.
       Because I believe a failure to remand and give defendant the opportunity to
present evidence in a baseline hearing would not render his sentence
unconstitutional under Miller, supra, 567 U.S. ___ [183 L.Ed.2d 407, 132 S.Ct.
2455] or the Eighth Amendment, and because I see no evidence in the statutory
scheme the Legislature intended to create such procedures, I respectfully dissent
from that part of the majority‘s decision remanding the case for a baseline hearing.
The Legislature, of course, remains free to amend the pertinent statutes to
specifically authorize such hearings.


                                                 WERDEGAR, J.




                                         6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Franklin
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 224 Cal.App.4th 296
Rehearing Granted

__________________________________________________________________________________

Opinion No. S217699
Date Filed: May 26, 2016
__________________________________________________________________________________

Court: Superior
County: Contra Costa
Judge: Leslie G. Landau

__________________________________________________________________________________

Counsel:

Gene D. Vorobyov, under appointment by the Supreme Court, for Defendant and Appellant.

Frank C. Newman International Human Rights Law Clinic, Constance de la Vega; Sheppard, Mullin,
Richter & Hampton and Neil A.F. Popović for Human Rights Advocates as Amicus Curiae on behalf of
Defendant and Appellant.

Heidi L. Rummel and Kristen Bell for Post-Conviction Justice Project as Amicus Curiae on behalf of
Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistants Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Rene A. Chacon, Laurence K. Sullivan and
Juliet B. Haley, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Gene D. Vorobyov
Law Office of Gene Vorobyov
450 Taraval Street, #112
San Francisco, CA 94116
(415) 425-2693

Juliet B. Haley
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5960
