People v. Palaminos CA5 ( 2022 )

Filed 8/25/22 P. v. Palaminos CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082730
Plaintiff and Respondent,
(Super. Ct. No. MCR025574)
v.
ANTONIO PRECIADO PALAMINOS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Madera County. Dale J. Blea,
Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Peña, J. and Smith, J.
Defendant Antonio Preciado Palaminos appeals the post-judgment order denying
his motion for a proceeding pursuant to Penal Code1 section 3051 and People v. Franklin
(2016) 63 Cal.4th 261 (Franklin) to preserve evidence related to his youthfulness for the
purpose of an eventual parole hearing. We dismiss the appeal.
BACKGROUND
On July 3, 2006, defendant killed an entire family when he hit their vehicle while
he was driving intoxicated in a vehicle he had just stolen. According to defendant’s date
of birth in the record, defendant was 26 years old at the time he committed the crimes.
Following a court trial, he was convicted of five counts of murder, as well as multiple
other counts, and the court sentenced him to 75 years to life (five consecutive terms of
15 years to life) on the murder counts, plus a four-year determinate term. In 2009, we
affirmed the judgment on appeal in People v. Palaminos (Apr. 30, 2009, F054625)
[nonpub. opn.].
On May 29, 2020, defendant filed a motion to augment the record to include
mitigating evidence relating to youthful factors pursuant to section 3051 and Franklin,
supra, 63 Cal.4th 261—in other words, a motion for a Franklin proceeding.2 In the
motion, he asserted that he was 25 years of age or younger at the time of the offenses.
After several continuances, on February 11, 2021, the trial court denied
defendant’s motion for a Franklin proceeding.
1 All statutory references are to the Penal Code.
2 “Franklin processes are more properly called ‘proceedings’ rather than ‘hearings.’
A hearing generally involves definitive issues of law or fact to be determined with a
decision rendered based on that determination. [Citations.] A proceeding is a broader
term describing the form or manner of conducting judicial business before a court.
[Citations.] While a judicial officer presides over a Franklin proceeding and regulates its
conduct, the officer is not called upon to make findings of fact or render any final
determination at the proceeding’s conclusion. Parole determination are left to the Board
[of Parole Hearings].” (In re Cook (2019) 7 Cal.5th 439, 449, fn. 3 (Cook).)
2.
On May 3, 2021, defendant filed a notice of appeal from the denial of the motion
for a Franklin proceeding.
DISCUSSION
I. Law
“A youth offender parole hearing is a hearing by the Board of Parole Hearings for
the purpose of reviewing the parole suitability of any prisoner who was 25 years of age
or younger … at the time of his or her controlling offense.” (§ 3051, subd. (a)(1), italics
added.)3 “[T]he board, in reviewing a prisoner’s suitability for parole … shall give great
weight to the diminished culpability of youth 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).) “[S]ections 3051 and 4801 contemplate[]
‘that information regarding the juvenile offender’s characteristics and circumstances at
the time of the offense will be available at a youth offender parole hearing to facilitate’
consideration by the Board of Parole Hearings …. [Citation.] [A]ssembling such
information [is] ‘typically a task more easily done at or near the time of the juvenile’s
offense’ [citation] … [and thus the defendant should have the opportunity to] ‘put on the
record the kinds of information that sections 3051 and 4801 deem relevant at a youth
offender parole hearing’ [citation]. [T]he trial court [may] receive ‘any documents,
evaluations, or testimony (subject to cross-examination) that may be relevant at [the
defendant’s] eventual youth offender parole hearing.’ ” (Cook, supra, 7 Cal.5th at
p. 446.) “[T]he presentation of evidence shall proceed with an eye to providing a
meaningful baseline of [the defendant’s] characteristics and circumstances so the parole
board can someday judge the extent to which he has matured and rehabilitated himself
3 Senate Bill No. 260 (2013–2014 Reg. Sess.), which became effective January 1,
2014, added section 3051 and section 4801, subdivision (c). (Franklin, supra, 63 Cal.4th
at p. 276.)
3.
while in custody. In that regard, only such evidence as meaningfully adds to the existing
record shall be permitted.” (People v. Delgado (2022) 78 Cal.App.5th 95, 104.)
In Franklin, the defendant was 16 years old when he committed murder, and the
trial court was statutorily required to sentence him to two consecutive sentences of
25 years to life. (Franklin, supra, 63 Cal.4th at p. 268.) The Franklin court concluded it
was not clear if defendant had sufficient opportunity at sentencing to “make an accurate
record of the juvenile offender’s characteristics and circumstances at the time of the
offense” to enable the Board to “properly discharge its obligation to ‘give great weight
to’ youth-related factors.” (Id. at p. 284.) The court remanded the case to the trial court
to determine whether defendant had an opportunity to make this record. (Id. at
pp. 286−287.) From this case, the term “Franklin proceeding” has emerged.
A Franklin proceeding is also available to eligible inmates whose judgments are
already final. Cook provides guidance: “For inmates … who seek to preserve evidence
following a final judgment, the proper avenue is to file a motion in superior court under
the original caption and case number, citing the authority of section 1203.01 and today’s
[Cook] decision. The motion should establish the inmate’s entitlement to a youth
offender parole hearing and indicate when such hearing is anticipated to take place, or if
one or more hearings have already occurred.” (Cook, supra, 7 Cal.5th 439 at p. 458.)
II. Defendant’s Motion for a Franklin Proceeding
After defendant’s May 29, 2020 motion for a Franklin proceeding, progression of
defendant’s case involved multiple judges, multiple public defenders, and repeated
continuations to explore the Franklin issue. After a hearing on October 30, 2020,
defendant himself filed a notice of appeal, but no final order had yet been made, and we
dismissed the appeal. Finally, at a February 11, 2021 hearing, a new public defender
admitted to the court that he could provide no authority supporting a Franklin proceeding
for a defendant who was 26 years old at the time of the crime, and he submitted. In
response, the new judge explained the Franklin case, then said: “[Defendant] was
4.
26 years, 5 months old at the time he committed the offenses that led to his convictions.
[¶] Based on the foregoing, I don’t feel that he’s eligible—strike that—the Franklin
hearing is not directed at [defendant] or persons similarly situated. [¶] I am going to
order that the Franklin hearing that is set for February 26th, 2021, be vacated.” The court
gave defense counsel an opportunity to make a statement on the record, and the following
discussion occurred:
“[DEFENSE COUNSEL]: Yes, Your Honor. Briefly. [¶] I don’t
have the exact case citation before me, Your Honor, but I am aware that
there’s a recent case by the name of Rodriguez that specifically addresses
that if the defendant is 26 years of age or younger at the time of the offense,
they would be eligible—now eligible for a Franklin hearing.
“Again, that would require my office to do the due diligence of
actually getting that citation to provide to the Court. But with that, I will
submit to the Court, Your Honor.
“THE COURT: Well, that begs the question, why has that not
happened?
“[DEFENSE COUNSEL]: Your Honor, I cannot speak as far as to
why it has not happened. However, I can assure that I personally will look
into the matter, Your Honor, and provide it to the Court.
“THE COURT: In reviewing the file in preparation for this hearing,
my read of the minute orders is that Judge Jurkovich, in October of last
year, and Judge Rigby, in November—I’m sorry, December of last year,
indicated the same concerns that I expressed today.
“If you are telling me that there’s a case out there that provides for
Franklin hearings for someone who is 26 years old, it seems to me that
that’s an important case, given the discussions that Counsel has had with
other judges. You don’t come here today with even the citation for that
case. What am I to do with that?
“[DEFENSE COUNSEL]: And I understand the Court’s concern,
Your Honor. And I cannot attest as to what was discussed at those prior
hearings. However, in addition to that, Your Honor, I am not even sure if
this—if the Rodriguez case was even determined last year, Your Honor.
5.
“THE COURT: The order stands. The Franklin hearing is vacated.
[Italics added.] We are going to come back on February 18th, 2021, at
8:30 a.m. in Department 22.
“[Defense Counsel], I am ordering that you file any points and
authorities that you have on or before—let’s do it this way: I am going to
order that you file any points and authorities that you have that the ruling in
Franklin extends to [defendant] on or before February 19th, 2021. You
should serve that on [the prosecutor] as well.
“[Prosecutor], I will give you until February 24th to file any
opposition you have.
“We will return to court on March 5th, 2021, at 8:30 in
Department 22 for a hearing on whether Franklin applies to [defendant] and
whether the Court’s order today should be vacated. [Second italics added.]
[Defendant] is ordered to be present at all hearings via Zoom [video call].
“[DEFENSE COUNSEL]: Thank you, Your Honor. And you stated
that there’s a February 18th date at 8:30?
“THE COURT: That’s vacated.
“[DEFENSE COUNSEL]: Thank you, Your Honor.
“[PROSECUTOR]: Thank you, all.”
The record on appeal does not contain a transcript of the March 5, 2021 hearing,
but the clerk’s minute order states: “COMMENTS: to Determine if Franklin applies to
Defendant and whether orders are to be vacated.” The minute order also notes that
defense counsel stated he was unable to find the case he had referred to and a Franklin
proceeding would not be appropriate at this time, but he wanted to investigate
defendant’s date of birth. The trial court agreed to allow counsel to investigate
defendant’s birthdate, but the Franklin proceeding would be taken off the calendar.
Defendant then requested a Marsden4 hearing and the court set a hearing for that purpose.
4 People v. Marsden (1970) 2 Cal.3d 118.
6.
At the Marsden hearing on April 22, 2021, defendant informed the court that he
was not actually Antonio Preciado Palaminos and his date of birth was different. His
birth certificate in Mexico would establish that he was eligible for a Franklin proceeding.
The trial court denied the Marsden motion and informed defendant that this information
regarding his identity was outside the realm of the hearing.
III. Analysis
We believe the trial court’s statements at the hearing on February 11, 2021,
demonstrate that the court denied defendant’s motion for a Franklin proceeding, even
though the court allowed for the possibility of further argument that might convince it to
vacate that order. We acknowledge that the ruling could have been clearer, but the record
convinces us the court made a final ruling denying the motion on that date and did not
vacate it later.
Thus, as the People contend, defendant’s May 3, 2021 notice of appeal was filed
beyond the 60-day period, and we are without jurisdiction to consider the appeal. (Cal.
Rules of Court, rule 8.308(a).)
However, we stress that defendant’s appeal would nevertheless fail on the merits.
The plain language of section 3051 sets out the age requirement of 25 years of age or
younger and, contrary to defendant’s baseless assertion, superior courts are clearly not
required to provide a Franklin proceeding to defendants who merely claim that they fall
within the statutory age requirement. We also note that defendant is not without a
remedy if he does obtain evidence that he was in fact 25 years of age or younger at the
time of the crimes and is therefore within the statutory age requirement. In that case, he
may still raise the Franklin issue with the superior court, as provided by section 1203.01
and Cook, supra, 7 Cal.5th 439.
7.
DISPOSITION
The appeal is dismissed.
8.