PEOPLE v. FRANKLIN

Appellant’s Supplemental Brief

Cal.February 23, 2016

A ‘ome Court Copy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, 5217699 Plaintiff and Respondent, Court of Appeal . V. No. A135607 ~ TYRIS LAMAR FRANKLIN, (Contra Costa SUPREME COURT County Superior F | LED Defendant and Appellant. _ Court No. 51103019) FEB 23 2016 Frank A. McGuire Clerk Deputy _ APPELLANT’S SUPPLEMENTAL BRIEF [Cal. R. of Court 8.520(d)} After Decision by the Court of Appeal First Appellate District, Division Three Filed February 28, 2014 GENE D. VOROBYOV,California Bar No. 200193 LAW OFFICE OF GENE VOROBYOV 450 Taraval Street, # 112 San Francisco, CA 94116 Telephone: (415) 425-2693; gene.law@gmail.com Attorney for Appellant TABLE OF CONTENTS Table of Authorities. ........... ccc cece cc ec eee eee ee ec een eea eeu eetseeeeaeaeteeaeaesaeeees ii INTRODUCTION & SUMMARY OF ARGUMENT...........cceceeeeeecneeeeees1 ARGUMENT I. Montgomery’s Discussion of Parole Eligibility as Permissible Way to Remedya Miller Violation is Limited to Cases Final on Direct Review A. Holding of Montgomery...........ccececececeeeeeeeee ees detente eee ee3 B. Montgomery’s Discussion of Parole as a Possible Remedy for a Miller Violation Is Limited to Cases That Are Final on Direct REVICW....eeee cece eee cence ean ee nena eneseeneneeteeeeneeeeeteeaeees4 Il. To The Extent Montgomery’s Approval of Parole as a Constitutional Remedy Extends BeyondCases on Collateral Review, the Wyoming Statutory SchemeCited by the Supreme Court With Approvalis Materially Different Than California’s Youth Offender Parole Hearing SCHeme...........ccccccceee ec eeeeecee sees eee eeneeseneesaeeeeeeeeneaeeenes7 CONCLUSION... 0. cc ccc cee cece eee e ee ee eee een een seeeeen ea eeaeeaeaeeenerenseeeestieeenees 11 CERTIFICATE OF WORD COUNT........... 0. cece cece ceeeeeeeeeneeeeeeeeseeeeeees 12 PROOF OF SERVICE.........0.cccccccececcceeceeeeeeceeeeneceeeeneaesasneceeeeeseenenees 13 TABLE OF AUTHORITIES CASES Miller v. Alabama (2012) 132 S.Ct. 2455...ccece ncn ceneeeeceaeeaseaeeeustaesteenteeeeususens 1, 3,9 Montgomery v. Louisiana (2016) 136 S.Ct. 718.2...cc cece eee ececec essence se eeeeeeenseesseeeessarenenana 1,3 People v. Gutierrez (2014) 58 Cal.4th 1354.00.00. cc cece ccceceeteeaeeeeeeeeeeeseeseseesuaeunenees 2, 6,9 People v. Tanner (1979) 24 Cal.3d 514...ccc cece cece ececececenteseeestsceeeeseusveseseaeeessareeenas9 State v. Mares (Wyo.2014) 335 P.3d 487.00... cece scence ec eceenen ee eeeee esse ee eeeeneneneaeeeuees7,8 Teague v. Lane (1989) 489 U.S. 288.20...c ccc ence eee ececeeeeeeaeeeeteseaeeseeaseesaeeuseaeesaeaners3 United States v. Bajakajian (1998) 524 U.S. B21... ccc ccc cece ccc e een eeeeneeceateaeeecsvecueeensseaeeserseenenes9 STATUTES California Penal Code § BOS... cece cece eee ceeeeeeeeseceeegeesetseeereeeseneneess 1, 2, 6, 8, 9, 10 Wyoming Revised Statutes § 6-30-301 .... 2... cece cee eee cece eee eeeeneeeenees webecceaceeeeeeeaeeseeeeeeuns 4,7,8 § 7-30-4002... ccc cece cc ecc ee eeeeenseeneeseeseesepenteaeeeeeuserteesuesseeees7,8 li INTRODUCTION & SUMMARY OF ARGUMENT Pursuant to California Rule of Court 8.520, appellant Tyris Franklin submits the following supplemental brief to address the impact of Montgomeryv. Louisiana (2016) _ U.S. _, 136 S.Ct. 718 [2016 WL 280758] (“Montgomery”). Montgomery was decidedafter the completion of merits briefing in this case. Montgomery does notalter the analysis presented by Tyris in the merits briefing regarding Penal Codesection 3051 not mooting the Miller? violation in this case.” First, Montgomery’s discussion of parole eligibility as a permissive remedy for a Miller violation is limited to cases that are already final on direct review. It has no applicability to cases like Tyris’s case, whichis notyet final. Second, to the extent Montgomery has any applicability to casesstill on direct appeal, the Wyominglegislative scheme Montgomery cited with approval is materially different from section 3051. Whereas the Wyomingstatute actually modifies the punishmentto a level that is no longer a functional life without parole sentence, section 3051 leaves the unconstitutional sentence intact. This is a meaningful distinction. Legislature has the power to remedy a constitutional * Miller v. Alabama (2012) 132 S.Ct. 2455 (“Miller”). * All further unassignedreferences are to the California Penal Code. -1- violation by reducing punishmentto a level that is no longer a functionallife withoutparole sentence, which is what Wyominghasdone.’ In contrast, section 3051 leaves the unconstitutional sentence intact. Thus, what this Court held in Gutierrez about section 1170, subdivision (d)(2), applies with equal force to section 3051 -- the sentence mustbe constitutionalat its inception and existence of a possible mechanism for resentencing decadesinto the future does not meantheinitial sentenceis not effectively life without the possibility of parole. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1386; see also Miller, 132 S.Ct. at p. 2469.) Accordingly, section 3051 does not mootthe Miller violation. The Court of Appeal’s judgment must be reversed. Hf [I Hf HI H/ * Appellant concedesthat if this Court were to find that his sentence is modified by operation of law to a sentence of 25 yearsto life in prison, this would moot the Miller violation. -2- ARGUMENT I. Montgomery’s Discussion of Parole Eligibility as Permissible Way to Remedy a Miller Violation is Limited to Cases Final on Direct Review A. The Holding of Montgomery In Montgomery, the Supreme Court addressed the issue of whether Miller, 132 S. Ct. 2455, applies retroactively to juvenile offenders whose convictions and sentences werefinal when Miller was decided. (Montgomery, 135 S.Ct. at p. 725.) At the time Miller was decided, Montgomery (age 69) had served 50 yearsof a life without parole sentence for a homicide he committed when he was 17 years old. He had spent almosthis entire life in prison. (Id. at pp. 725-726.) The six-justice majority held that Miller created a substantive guarantee underthe Eighth Amendmentthat sentencing a child to life without paroleis excessive “for all but the rare juvenile offenders whosecrimereflects irreparable corruption.” (Id. at p. 734.) Montgomery reasoned that finding Miller to pronouncea substantive rule of constitutional law, comports with Teague v. Lane (1989) 489 U.S. 288, a decision requiring balancing of the liberty interests of those imprisoned pursuant to a sentence later deemed unconstitutional against the goals of finality and comity. (Id.) In explaining why this decision complies with the balancing of interests identified in Teague, Montgomery further stated that making Miller retroactive would not unduly burdenthe States or disturb finality of state convictions because States may remedy a Miller violation by making a juvenile offender eligible for parole, rather than by resentencing them. (Montgomery, 135 S.Ct.at p. 736, citing e.g., Wyo. Stat. Ann. § 6-10-301(c) (2013). Those prisoners who have demonstrated rehabilitation will get an opportunity for release while those who have shownaninability to reform will continue to serve life sentences. (Montgomery, 135 S.Ct. at p. 736.) As an example, the Court cited Montgomery himself, who has allegedly amasseda significant showingof rehabilitation, which he would now have an opportunity to present to a parole board. (Ibid.) B. Montgomery’s Discussion of Parole as a Possible Remedyfor a Miller Violation Is Limited to Cases That Are Final on Direct Review Appellant disagrees with the State’s argument that Montgomery “compels” affirmance of the Court of Appeal’s decision. Appellant submits that for several reasons, this Court should read Montgomery narrowly as discussing parole as a “R ER RR ES IE Q O a permissible way to remedy a Miller violation in cases alreadyfinal on direct review. Such reading of Montgomery is supportedboth byits facts andits reasoning. Thepetitioner in Montgomery had been sentencedtolife in prison and had served 50 years of that sentence by the time Miller was decided. When a case has been final on direct review for so manyyears, thestates’ interest in finality of convictions andthe likely burden of conducting a resentencing hearing may well make parole eligibility an acceptable way to remedy a Miller violation. Evidence is destroyed, witnessesare likely dead, and there may not be a ready mechanism for appointmentof competent counsel. But these concerns are not present in a case like appellant’s case, whichis not yet final on direct review, in which the sentencing hearing occurred only a few years ago, and for which there is an established process for appointment of counsel. Similarly, Montgomery's rationale for finding parole an acceptable remedy for a Miller violation was based on concerns — not imposing an onerous burden on the States and not disturbing finality of state convictions — that apply primarily to cases already final on direct review. A case like appellant’s, which is not yet final on direct review, which does not involve stale evidence, and for -5- which there is a readily available mechanism to appoint counsel, does not implicate those concerns. Moreover, there is another prudential reason to read Montgomery narrowly, as making parole eligibility a permissible remedy for a Miller violation only in cases already final on direct review. Theissue of parole eligibility was not one on whichcertiorari was granted in Montgomery and it was not briefed by the parties. It is not an issue raised by the facts in Montgomery. Though the majority did addressit briefly, it did so only to explain whythe decision to make Miller retroactive was consistent with the comity and federalism interests discussed in Teague. For these reasons, it would bea significant mistake to read Montgomery as broadly endorsing any andall legislative attempts to remedy a Miller violation byaltering parole eligibility. In light of the above, Montgomery does not impact the argument presented in the merits briefing regarding whysection 3051 (though well intentioned) does not mootthe Miller violation. (AOB 50-59; ARB 29-35; Gutierrez, 58 Cal.4th at p. 1386.) /// H// II. To The Extent Montgomery’s Approvalof Parole as a Constitutional Remedy Extends Beyond Cases on Collateral Review, the Wyoming Statutory Scheme Cited by the Supreme Court With Approval is Materially Different Than California’s Youth Offender Parole Hearing Scheme Evenif this Court reads Montgomery as endorsing parole as a possible remedy for a Miller violation, the type of legislative scheme endorsed by Montgomeryis materially different from section 3051. Montgomery cited WyomingStat. Ann. Section 6-10-301(c) as an example of a statute, which altered a juvenile defendant’s parole eligibility in a way to effectively remedy a Miller violation. Until 2013, a juvenile defendant convicted of first-degree murder in Wyoming received a mandatory sentenceoflife without the possibility of parole. (See e.g., State v. Mares (Wyo.2014) 335 P.3d 487, 495.) However, in 2013, in response to Miller, the Wyominglegislature amendedits law, which converted a juvenile defendant’s life without parole sentenceto life with parole (after serving a minimum of 25 years).* (Id at pp. 496, 498; see also Wyo.Stat. Ann § 6-10-301(c).) * The relevant Wyoming statutes are Wyo.Stat. Ann., §§ 6-10-301 (c) and 7-13- 402(a). (Mares, 335 P. 3d. at p. 496.) They provide: -7- The Wyominglegislative remedy is materially different from section 3051 because unlike section 3051, the Wyoming amendedstatutes actually modify the juvenile defendant’s punishmentto one that is no longer a functionallife without parole sentence. In contrast, section 3051 leaves the functional life without parole sentenceof 50 yearsto life fully intact. (ARB 33-35). Indeed,the State has carefully avoided taking a position that Tyris’s sentence (or the sentences of Any sentence other than a sentence specifically designated as a sentence of life imprisonment without parole is subject to commutation by the governor. A person sentencedto life imprisonmentfor an offense committed after the person reached the age of eighteen (18) years is not eligible for parole unless the governor has commuted the person's sentence to a term of years. A person sentencedto life imprisonmentfor an offense committed before the person reached the age of eighteen (18) years shall be eligible for parole after commutation of his sentence to a term of years or after having served twenty five (25) years of incarceration, exceptthatif the person committed any of the acts specified in W.S. 713402(b)after having reached the age of eighteen (18) years the person shall not be eligible for parole. (Wyo.Stat. Ann. § 6-10-301(c)); The board maygrant a parole to any person imprisonedin anyinstitution undersentence, except a sentence of life imprisonmentwithoutparole or a life sentence, ordered by anydistrict court of this state, provided the person has served the minimum term pronouncedbythetrial court less good time, if any, granted underrules promulgated pursuant to W.S. 713420. The board mayalso grant parole to a person serving a sentence for an offense committed before the person reached the age of eighteen (18) years of age as provided in W.S.6-10-301(c).” (Wyo. Stat. Ann. § 7-13-402(a).) -8- similarly situated individuals) has been modified by operation of law to a term that is no longer a functionallife without parole sentence. (See e.g., State’s Supplemental Brief re: Montgomery at p.4.) This is a distinction with a difference. Appellant does not dispute that it would be within the powerof the Legislature to address a Miller violation by changing punishmentto one that is no longera functional equivalentof a life without parole sentence. (See e.g., United States v. Bajakajian (1998) 524 U.S. 321, 337 [judgments about the appropriate punishmentfor an offense belong in the first instance to the legislature”]; People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3 [“the Legislature possesses the exclusive powerto define criminal offenses and prescribe penalties or punishments”J.) The problem with section 3051 is that the California legislature has not yet exercised its powerto actually reduce punishmentto a non-functional LWOP level. Asa result, what this Court has said in Gutierrez about section 1170, subdivision (d)(2), remains true of section 3051. Existence of a potential mechanism for resentencing decadesafter the original sentence does not mean that “the initial sentence is thus no longereffectively a sentence of life without the possibility of parole.” (Gutierrez, 58 Cal.4th at p. 1386.) Both this Court and -9- the United States Supreme Court have consistently held that a constitutional sentence must be imposed at the time of the original sentence. (Miller, 132 S.Ct. at p. 2469; Gutierrez, 58 Cal.4th at p. 1386.) Finally, as addressed in the merits briefing (and noted by twodifferent intermediate appellate courts), section 3051 is also problematic becausethereis no guaranteethat it is going to be in place in 25 years. Should the statute be repealed and leave Tyris with a sentence that is no greater than 50 yearstolife, there may notbe an ex post facto prohibition against such a change. (ARB 34-35.) /// H// Hf] Hf} // Hf HI Hf] H// -10- CONCLUSION Montgomery does not impact the analysis presented by appellantin the merits briefing. This Court should hold that: (1) Appellant’s sentence of 50 yearsto life for a homicide committed whenhe wasa juvenile violates the Eighth Amendment; (2) The Eighth Amendmentviolation in this case was not rendered moot by enactmentof section 3051. This Court must therefore reverse the judgment of the Court of Appeal. DATE: February 22, 2016 By: Gene D. Vorobyov Attorney for Appellant TYRIS L. FRANKLIN -11- CERTIFICATE OF WORD COUNT I certify that this brief consists of 2,070 words (including footnotes, but excludingthis certificate, proof of service, and tables), as indicated by the Microsoft Word program in whichthe brief is prepared. DATE: February 22, 2016 By: Gene D. Vorobyov Attorney for Appellant TYRIS L. FRANKLIN -12- PROOF OF SERVICE I declare that I am an active memberof the California bar, over the age of 18, not a party to this action and my business addressis 450 Taraval Street, # 112, San Francisco, CA 94116. On the date shown below,I served the within APPELLANT’S SUPPLEMENTAL BRIEF RE: MONTGOMERYV. LOUISIANA, to the following parties hereinafter namedby: X.__—E-serving the followingparties at the following e-mail addresses: California Court of Appeal - via the Truefiling system Juliet B. Haley, Deputy Attorney General SFAG.Docketing@doj.ca.gov Brad O’Connell, Assistant Project Director @ FDAP eservice@fdap.org X._— Placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California, addressedas follows: Barry Grove, Deputy District Attorney 900 WardStreet Martinez, CA 94553 Hon. Leslie Landau 100-37th Street Richmond, CA 94805 Tyris Franklin, CDC # AM4447 P.O. Box 921 Imperial, CA 92251-921 -13- Elizabeth Harrigan, Deputy Public Defender 800 Ferry Street Martinez, CA 94553 I declare under penalty of perjury the foregoing is true and correct. Executed on February 22, 2016, at San Francisco, California. /s/ Gene D. Vorobyov -14- -15-