PEOPLE v. FRANKLIN

Respondent’s Supplemental Brief

Cal.February 16, 2016

COOPY SUPREME COURT COPY Jn the Supreme Court of the State of Califurnia THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. TYRIS LAMAR FRANKLIN, Defendant and Appellant. eeeCOUR? FILED FEB 1 6 2955 Case No. 8217699 Frank A. McGuire Cleri Deputy First Appellate District, Division Three, Case No. A135607 Contra Costa County Superior Court, Case No. 51103019 The Honorable Leslie Landau, Judge RESPONDENT’S SUPPLEMENTAL BRIEF KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JEFFREY M. LAURENCE Senior Assistant Attorney General LAURENCEK. SULLIVAN Supervising Deputy Attorney General JULIET B. HALEY Deputy. Attorney General State Bar No. 162823 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone:(415) 703-5960 Fax: (415) 703-1234 Email: Juliet.Haley@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page INtrOdUCTION.........ceeeceeseetesecetereneeseensesseerseceseateeseeeneeeeseensavesteeeaeeeeseeeaeeeeeeeas 1 © APQUMENL oo. ieee ecteceseeeectesecseneesessesessenssseeseciersesecteenersnenessenenseaseeaseaensey 1 Montgomery compels affirmance of the Court of Appeal’s GECISION ....cceeceseesseeeeeeenetesetesaeeessusesesssseseeseeesaueesdeeeevenetevieeeeneeteneeeeens 1 CONCIUSION vo. ceeeccceccesseessenecetseceseceeeeeseeereneeesessseeesedesesseecsessesseeesasesesesseeseeenens 5 TABLE OF AUTHORITIES Page (CASES Miller v. Alabama (2012)S567 U.S. [132 S.Ct. 2455] vee ccceeeereeteeteteeeeees 1, 2, 3,4 Montgomery v. Louisiana (Jan. 25, 2016, No. 14-280) 577 U.S. [2016 U.S. LEXIS 862, 2016 WL 280758)... cccceseseceeteesssreeeeeeetseeenseerenaes 1,2, 3,4 STATUTES Penal Code S305] ccccccccccccsecsseseseesecsecseeesneseeeesecssssessceesessessesseceeeeessesesssneeesseessaseneees 4 § 3051, SUbd. (D)(3) nc cececeeeeeentesesentesessesessssesseeseesssseesseesseneesersesseesees 3,4 Stats. 2013,.C. 312 oo. eeeccesceeeesnereeeeeeneeeeneeenseesseeeeeesenseeseesesenseesesesaseeseeenteres 4 Wyoming Statutes Annotated, Title 6, Crimes and Offenses, § 6-10-3011, SUD. (C) eceeceeeccecetseterseneerersssersessessseeesseeeseesseeesesseetseseaseees 3 CONSTITUTIONAL PROVISIONS United States Constitution Eighth Amendment...... cc eceeccsceseeeeeeeeeesseetecseescessesceeieereestesneenieriens 2 il INTRODUCTION After the completion of briefing, the United Supreme Court decided Montgomery v. Louisiana (Jan. 25, 2016, No. 14-280) 577 U.S. [2016 U.S. LEXIS 862, 2016 WL 280758]. Montgomery holds a violation of Miller v. Alabama, (2012) _567 U.S. __ [132 S.Ct. 2455] can be remedied by permitting juvenile homicide offenders serving a mandatory life-without-parole sentence to be considered for parole, rather than by resentencing such offenders. This supplemental brief discusses the impact of Montgomery onthis case. ARGUMENT MONTGOMERY COMPELS AFFIRMANCEOF THE COURT OF APPEAL’S DECISION In Montgomery, the petitioner was 17 years old when he shot and killed a deputy sheriff in 1963. He was sentencedtolife without possibility of parole (LWOP). Following the high court’s holding in Miller, the petitioner sought collateral review of his LWOPsentencein the Louisiana courts, but review was denied on procedural grounds. The United States Supreme Court granted certiorari and determined that “when a new substantive rule of constitutional law controls the outcomeofa case, the Constitution requires state collateral review courts to give retroactive effect to that rule.” (Montgomery, 2016 WL 280758 at p. *16.) The Supreme Court then addressed the further question whether “Miller’s prohibition on mandatory life without parole for juvenile offenders indeed did announce a new substantive rule that, under the Constitution, must be retroactive.” (Montgomery, 2016 WL 280758 atp. *11.) It answered that question affirmatively. Ud. at p. *13.) While acknowledging that Miller did not impose upontrial courts a formal factfinding requirement regarding a child’s incorrigibility, the high court said the absenceof such a requirement“does not leave States free to sentence a child whosecrimereflects transient immaturity to life without parole. To the contrary, Miller established that this punishmentis disproportionate under the Eighth Amendment.” (/d.at p. *] 5.) _ Finally, the high court turnedto theissue of how to cure a Miller Eighth Amendmentviolation and held as follows: Giving Miller retroactive effect, moreover, does not require States to relitigate sentences,let alone convictions, in every case where a juvenile offender received mandatory life without parole. 4 State may remedy a Miller violation by permittingjuvenile homicide offenders to be consideredfor parole, rather than by resentencing them. See, e.g., Wyo.Stat. Ann. §6—10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and whohavesince matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment. Extending paroleeligibility to juvenile offenders does not impose an onerous burden onthe States, nor doesit disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change. (Montgomery, 2016 WL 280758 atp. *16, italics added.) The Court concludedthat “prisonerslike Montgomery mustbe given the opportunity to show their crime did not reflect irreparable corruption; — and, if it did not, their hopefor some years oflife outside prison walls must be restored.” (Ibid., italics added.) | A dissent in Montgomery joined by three justices pointedly reinforces the latter holding: “The majority does not seriously expect state and federal collateral-review tribunals to engagein this silliness, probing the evidence of ‘incorrigibility’ that existed decades ago when defendants were sentenced. What the majority expects (and intends) to happenis set forth in the following not-so-subtle invitation: ‘A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.’” (Montgomery, 2016 WL 280758 at p. *24 (dis. opn. of Scalia, J.).) Montgomery makesclear that the means of curing Miller error is not limited to a choice betweena retrospective incorrigibility hearing, a judicial resentencing hearing in each individual case, or a guaranteedrelease date. Indeed, in concludingthat the availability of a parole hearing obviates the constitutional infirmity of a judicially imposed mandatory sentence oflife imprisonment without consideration of a juvenile offender’s youth and immaturity, Montgomery specifically approves of Wyoming’s parole eligibility statute. (Montgomery, 2016 WL 280758,at p. *16.) Wyoming Statutes Annotated, Title 6, Crimes and Offenses, section 6-10-301, subdivision (c), provides in pertinent part: “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.” Thus, the Wyomingstatute, enacted after Miller, affords a youthful offender serving life imprisonmentaneligibility to be paroled after 25 years, without resentencing and without providing for a guaranteed release. Montgomery’s analysis is directly applicable here. Notwithstanding his court-pronounced sentenceoffifty years to life, Penal Code section 3051, subdivision (b)(3) mandates that appellant be given consideration for parole after 25 years. “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 sentenceis a life term of 25 yearsto life shall be 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.” (/bid., added by Stats. 2013, c. 312 (S.B. 260), § 4.) Wehave arguedthatin light of Penal Codesection 305 1; aterm of imprisonmentof 50 yearsto life for murder committed by a 16-year-old offender such as appellantis not the functional equivalent of life without possibility of parole because section 3051 mandates parole eligibility after half the minimum term. Considering the new parole eligibility date provided by Penal Code section 3051, appellant’s sentence is no longer the functional equivalent of a constitutionally infirm life sentence,if it ever was. Montgomery confirmsthat Penal Code section 3051 cured any arguable Miller error. The absence ofjudicial consideration of mitigating factors at the initial sentencing doesnotalter the efficacy of that remedy for a youthful offender claiming an indeterminate sentenceis functionally - equivalent to LWOP. Montgomery resolvesthat a state statute authorizing a paroleeligibility hearing after 25 yearsis a constitutionally compliant remedy for Miller error when the sentence actually is LWOP without the need for any retrospective incorrigibility determination. The same holds true for a purported functional LWOPsentence. The Court of Appeal correctly concludedin light of Penal Code section 3051, that “because defendant no longer faces the functional equivalentoflife without the possibility of parole for the crime he committed as a juvenile, he is not entitled to a new sentencing hearing under Miller or remand under Caballero to determine the time for parole eligibility.” (Typed Opn., p. 18, fn. 6.) CONCLUSION Accordingly, respondentrespectfully requests that the judgmentofthe Court of Appealbeaffirmed. Dated: February 16, 2016 SF2014410194 20820111.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California GERALD A, ENGLER Chief Assistant Attorney General JEFFREY M. LAURENCE Senior Assistant Attorney General LAURENCEK. SULLIVAN Supervising Deputy Attorney General JULIET B. HALEY Deputy Attorney Genera Attorneysfor Respondent CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S SUPPLEMENTAL BRIEF uses a 13 point Times New Romanfont and contains 1,180 words. Dated: February 16, 2016 KAMALAD. HARRIS Attorney General of California f \ JULIETB. HALEY Deputy Attorney Genera Attorneysfor Respondent DECLARATION OF SERVICE Case Name: People v. Franklin No.: 8217699 I declare: I am employedin the Office of the Attorney General, which is the office of a memberof the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On February 16, 2016, I served the attached RESPONDENT’S SUPPLEMENTALBRIEFby placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Gene D. Vorobyov The Honorable Mark Peterson Law Office of Gene Vorobyov ‘District Attorney PMB733 Contra Costa County District Attorney's Office 5214 F Diamond Heights Blvd. (BY E-MAIL ONLY:by transmitting a PDF San Francisco, CA 94131 version of this documentvia electronic mail to: (BY MAIL [2 copies] AND E-MAIL [by appellate.pleadings@contracostada.org transmitting a PDF version of this document via electronic mail to gene.law@gmail.com) Superior Court of California First District Appellate Project County of Contra Costa (BY E-MAIL ONLY:bytransmitting a PDF Wakefield Taylor Courthouse version of this documentvia electronic mailto: 725 Court Street eservice@fdap.org) — Martinez, CA 94553-1233 Court of Appeal of the State of California First Appellate District, Division Three 350 McAllister Street San Francisco, CA 94102 (served via TrueFiling) I declare under penalty of perjury underthe laws ofthe State of California the foregoingis true and correct and that this declaration was executed on February 16, 2016, at San Francisco, California. J. Wong ihyn Declarant : Sigrture