People v. Paguada CA2/8 ( 2021 )

Filed 10/15/21 P. v. Paguada CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B305782
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA019025)
v.
MARVIN NAHUN PAGUADA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura C. Ellison, Judge. Reversed.
Lise M. Breakey, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Nima Razfar, Deputy Attorney General,
for Plaintiff and Respondent.
____________________
Marvin Nahun Paguada appeals the trial court’s denial of
his postjudgment request for a Franklin proceeding. The
prosecution agrees this proceeding was due. We reverse and
remand for the requested proceeding. Statutory references are to
the Penal Code.
In 1994, Paguada pleaded guilty to two kidnapping counts
(§ 209, subds. (a) & (b)) and admitted two firearm enhancements
(§ 12022.5, subd. (a)). The trial court sentenced Paguada to two
terms of life with the possibility of parole, plus consecutive four-
year terms for the enhancements.
Paguada was 21 years old when he committed the crimes.
He claimed he “drank an unusual amount of alcohol” and was on
drugs at the time. He had been using cocaine and speed daily.
The probation report shows Paguada had no criminal
history. It characterizes Paguada and his cohorts as “very
unsophisticated and immature.” A detective described them as
“the dumbest criminals he has ever faced” and opined the crimes
were “a reaction against overly strict and sheltered upbringings.”
Another officer said, “their boldness and stupidity [were] almost
unbelievable.”
In January 2020, Paguada, representing himself, moved for
a limited remand under section 1203.01. Paguada sought to
make a record of youth-related evidence for an eventual youth
offender parole hearing. His motion invoked In re Cook (2019) 7
Cal.5th 439 (Cook) and People v. Franklin (2016) 63 Cal.4th 261(Franklin).
In Franklin, supra, 63 Cal.4th at pages 269 and 284, the
Supreme Court recognized the right of youth offenders described
by section 3051 to make a record of mitigating evidence tied to
youth for later use in a youth offender parole hearing. Section
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3051 provides for such hearings, as well as parole eligibility, for
youth offenders serving life terms or other lengthy sentences
(with exceptions not applicable here) during their 15th, 20th, or
25th year of incarceration, depending on the sentence.
In Cook, supra, 7 Cal.5th at pages 451–459, the Court
determined section 1203.01 provides the means for conducting an
evidence preservation proceeding under Franklin for offenders
with final convictions.
The trial court denied Paguada’s motion the day he filed it,
finding Paguada failed to state a prima facie case and had the
opportunity to present evidence of his youth at his sentencing
hearing. The basis for the latter finding is unknown, as there is
no hearing transcript and nothing in the 1994 minute orders
supports the finding.
Denying Paguada’s motion was error.
The prosecution concedes the error. According to the
prosecution, nothing indicates Paguada has had a parole hearing
or “sufficient opportunity to present relevant youth offender
information at a postconviction proceeding with the benefit of
appointed counsel.”
Following the Supreme Court’s guidance in Cook, supra, 7
Cal.5th at pages 458–460, the self-represented Paguada filed a
motion in the superior court under the original case number,
citing section 1203.01 and Cook. Paguada represented he was 21
years old at the time of his crimes—well under the statutory age
limit of 25 (see § 3051, subd. (b)(1)–(3))—yet no prior hearing
addressed his youthfulness. Paguada’s motion maintained he
was entitled to make a record of information relevant to an
eventual youth offender parole hearing and explicitly requested a
“Franklin Hearing.”
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The 1994 sentencing hearing was no substitute for the
requested Franklin proceeding. (See People v. Rodriguez (2018) 4
Cal.5th 1123, 1131.) Paguada is entitled to this proceeding. (See
People v. Lipptrapp (2021) 59 Cal.App.5th 886, 892 & 896
(Lipptrapp).)
As Paguada has spent more than 25 years in prison, the
trial court should conduct the Franklin proceeding as soon as
possible. (See Lipptrapp, supra, 59 Cal.App.5th at p. 897.)
DISPOSITION
We reverse the trial court’s order and remand for a
Franklin evidence preservation proceeding, with counsel
appointed for Paguada.
WILEY, J.
We concur:
STRATTON, Acting P. J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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