People v. Dorsey CA4/3 ( 2021 )

Filed 12/15/21 P. v. Dorsey CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059841
v. (Super. Ct. No. 03NF3450)
EDWARD DEWAYNE DORSEY, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Cheri T.
Pham, Judge. Affirmed.
Spolin Law and Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
The trial court denied defendant Edward Dewayne Dorsey’s request for a
hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin). We affirm. The
purpose of a Franklin hearing is to preserve evidence for a later youth offender parole
hearing. By statute, defendant is not and will not be eligible for a youth offender parole
hearing; therefore he is not entitled to a Franklin hearing.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Defendant was arrested after the victim described him to the police as the
person who had run toward him pointing a gun. A gang expert testified at trial that
defendant was a member of a gang and that he had accosted the victim with a gun in
order to benefit the gang. (People v. Dorsey (Apr. 5, 2006, G034957) [nonpub. opn.].)1
A jury found defendant guilty of brandishing a firearm (Pen. Code, § 417,
subd. (a)(2)),2 possession of a firearm by a felon (§ 12021, subd. (a)(1)), and street
terrorism (§ 186.22, subd. (a)). The jury also found true sentencing enhancement
allegations that the first two offenses were committed for the benefit of, at the direction
of, or in association with a criminal street gang with the intent to promote, further, or
assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1).) In a bifurcated
bench trial, the court found true that defendant had suffered two prior serious and violent
felonies. (§§ 667, subd. (a)(1), 1170.12, subds. (b) & (c)(2)(A).) (People v. Dorsey,
supra, G034957.)
The trial court sentenced defendant to 35 years to life (25 years to life on
count 2, plus two 5-year consecutive terms pursuant to section 667, subdivision (a), and
1
Given the narrow issue on this appeal, we have provided a limited summary of the facts
of the underlying case. A full statement of facts is available in our unpublished opinion
in People v. Dorsey, supra, G034957.
2
All further statutory references are to the Penal Code.
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concurrent sentences of 25 years to life for counts 1 and 3). (People v. Dorsey, supra,
G034957.)
Defendant filed a notice of appeal from the judgment and, in an
unpublished opinion, this court affirmed defendant’s convictions and sentence. (People
v. Dorsey, supra, G034957.) In 2014, following the California Supreme Court’s holding
in People v. Rodriguez (2012) 55 Cal.4th 1125 that a single gang member cannot be
convicted of violating section 186.22, subdivision (a), the trial court vacated defendant’s
conviction on count 3 and dismissed one of the 5-year prior conviction sentencing
enhancements. Defendant was resentenced to an aggregate term of 30 years to life.
In August 2014, defendant filed a petition for recall of his sentence
pursuant to section 1170.126, following the enactment of Proposition 36. Defendant’s
petition was dismissed on the ground he was ineligible for resentencing under
Proposition 36.
In November 2020, defendant filed a motion for a hearing pursuant to
Franklin, supra, 63 Cal.4th 261. The trial court found that because defendant had been
sentenced under the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), he
is not and would not be entitled to a youth offender parole hearing, and therefore
concluded he was not entitled to a Franklin hearing. Defendant filed a timely notice of
appeal.
DISCUSSION
Section 3051 defines a youth offender parole hearing as “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, or was under 18 years of age as specified in
paragraph (4) of subdivision (b), at the time of the controlling offense.” (§ 3051,
subd. (a)(1).) Section 4801 provides that, in considering the suitability for parole of a
prisoner at a youth offender parole hearing, the parole board “shall give great weight to
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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).)
Three Strikes defendants are ineligible for youth offender parole hearings
pursuant to sections 1203.1 and 3051.3 (People v. Moore (2021) 68 Cal.App.5th 856,
863-864; People v. Wilkes (2020) 46 Cal.App.5th 1159, 1162, 1164.)
In Franklin, the California Supreme Court held that a defendant who will
be eligible for a youth offender parole hearing at some point in the future must be
“afforded sufficient opportunity to make a record of information relevant to his eventual
youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at p. 284.) In In re Cook
(2019) 7 Cal.5th 439, 458-459, our Supreme Court held that the hearing authorized by
Franklin was available by motion pursuant to section 1203.01 for those offenders whose
sentences were final. One of the requirements for relief in such a motion is to “establish
the inmate’s entitlement to a youth offender parole hearing.” (Id. at p. 458.)
In this case, the trial court, citing section 3051, subdivision (h), denied
defendant’s request for a Franklin hearing because, having been sentenced pursuant to
the Three Strikes law, defendant was ineligible for a youth offender parole hearing.
Although the court noted that defendant might still be eligible for early parole
consideration under a different provision of the law, he was not entitled to a Franklin
hearing.
3
“The court and the prosecuting attorney need not consider a defendant if the following
circumstances exist: [¶] (A) The defendant was convicted of any offense set forth in
subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” (§ 1203.1, subd.
(g)(3)(A).)
“This section shall not apply to cases in which sentencing occurs pursuant to Section
1170.12, subdivisions (b) to (i), inclusive, of Section 667, or Section 667.61, or to cases
in which an individual is sentenced to life in prison without the possibility of parole for a
controlling offense that was committed after the person had attained 18 years of age.”
(§ 3051, subd. (h).)
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Defendant concedes that he is not and will not be eligible for a youth
offender parole hearing, but contends he is nevertheless entitled to a Franklin hearing.
We disagree.
The relevant statutes and the cases interpreting them specifically exclude
those sentenced under the Three Strikes law from entitlement to youth offender parole
hearings. As Franklin and In re Cook only address the rights of those entitled to youth
offender parole hearings, they have no application in this case. When defendant comes
before the parole board, nothing will prevent him from presenting evidence of his youth
and subsequent maturity. But he is not entitled to use the procedures of a Franklin
hearing at this point in time.
DISPOSITION
The order denying defendant’s motion for a Franklin hearing is affirmed.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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