People v. Cervantes CA4/2

Opinion

Filed 4/1/26 P. v. Cervantes CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE,

Plaintiff and Respondent, E086008

v. (Super.Ct.No. RIF094828)

LAURENO ARTIAGA CERVANTES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Joshlyn R. Pulliam,

Judge. Affirmed.

Laureno Artiaga Cervantes, in pro. per.; and Benjamin Kington, under

appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,

Arlene A. Sevidal, James M. Toohey and Kristine A. Gutierrez, Deputy Attorneys

General, for Plaintiff and Respondent.

1 Defendant and appellant, Laureno Artiaga Cervantes, filed a postjudgment motion

for a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin), which the

court denied. After defense counsel filed a notice of appeal, this court appointed counsel

to represent defendant.

Counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436

(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders),1 setting forth a

statement of the facts, setting forth a statement of the case, contending we must

independently review the record, and identifying two potentially arguable issues:

(1) whether Penal Code section 3051’s2 inapplicability to defendants sentenced to life

without the possibility of parole (LWOP) violates defendant’s right to equal protection;

and (2) whether defendant received ineffective assistance of counsel below.

This court offered defendant the opportunity to file a personal supplemental brief,

which he has done.3 Defendant contends that defense counsel and the court below erred

in determining he was 26 years old at the time he committed the offenses for which he

was convicted. Defendant maintains that defense counsel and the court below

1 In People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), the California Supreme Court held that Wende and Anders procedures do not apply in appeals from postjudgment proceedings. (Delgadillo, at pp. 224-226; People v. Freeman (2021) 61 Cal.App.5th 126.)

2 All further statutory references are to the Penal Code.

3 “If the defendant . . . files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion.” (Delgadillo, supra, 14 Cal.5th at p. 232.)

2 overlooked the caselaw defendant expressly cited in his motion, People v. Briscoe (2024)

105 Cal.App.5th 479 (Briscoe), which specifically held that even those sentenced to

LWOP may be entitled to a Franklin hearing if they were convicted as nonkiller

participants in a crime.

We ordered the parties to brief the following issue: Did the court err in denying

defendant’s motion for a hearing pursuant to Franklin? In other words, did the court err

in finding that defendant was 26 years old at the time he committed the instant offenses,

and that defendant was not entitled to a Franklin hearing as a nonkiller participant in

felony offenses, during which a murder occurred. (Briscoe, supra, 105 Cal.App.5th at

pp. 484-485 [the holding in People v Hardin (2024) 15 Cal.5th 834 (Hardin) does not

apply to youthful offenders who were sentenced to LWOP, when they were nonkiller

participants in felony offenses during which a murder occurred].) The parties agree that

the court properly dismissed defendant’s motion. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 28, 2000, members from two rival gangs engaged in three separate

hostile encounters. Defendant was present for all three. During the second encounter,

defendant and a rival gang member engaged in a fistfight. According to undisputed

evidence, defendant’s gang thereafter set out to exact revenge. Defendant obtained

ammunition for a shotgun. After searching for and finding the rival gang members,

defendant’s fellow gang member, Tony Martinez, fired at least four shots from a shotgun

out the window of a car in which defendant was present. One person was killed and

3 another seriously injured. (People v. Cervantes (Oct. 28, 2003, E031955) [nonpub. opn.]

(Cervantes I); People v. Martinez (Aug. 10, 2021, E076841) [nonpub. opn.] (Martinez);

People v. Cervantes (Sep. 26, 2023, E080152) [nonpub. opn.] (Cervantes II).)

On June 14, 2002, a jury found defendant guilty of murder (§ 187, subd. (a),

count 1), three counts of attempted murder (§§ 664, 187, subd. (a), counts 2-4), one count

of discharging a firearm at an occupied vehicle (§ 246, count 5), and one count of

discharging a firearm from a vehicle (§ 12034, subd. (d), count 6). The jury additionally

found true allegations that defendant personally and intentionally discharged a firearm

proximately causing great bodily injury or death as to each of the offenses (§ 12022.53,

subd. (d)), and that defendant committed the offenses in counts 5 and 6 for the benefit of

a criminal street gang (§ 186.22, subd. (b)). (Cervantes I, supra, E031955; Cervantes II,

supra, E080152.)

Finally, the jury found true two special murder circumstances attached to count 1

(§ 190.2, subd. (a)(21) [“The murder was intentional and perpetrated by means of

discharging a firearm from a motor vehicle, intentionally at another person or persons

outside the vehicle with the intent to inflict death”] & (a)(22) [The “defendant[s]

intentionally killed the victim while [they were] active participant[s] in a criminal street

gang”].) (Cervantes I, supra, E031955; Cervantes II, supra, E080152.)

The court sentenced defendant to LWOP on count 1, plus three consecutive terms

of life in prison with the possibility of parole on counts 2, 3, and 4. In addition, the trial

court sentenced defendant to determinate terms amounting to 140 years in state prison

4 based on the gang and firearms enhancements.4 (Cervantes I, supra, E031955; Cervantes

II, supra, E080152.)

Defendant appealed. This court affirmed the judgment but modified defendant’s

sentence by striking the gang enhancements imposed on counts 1 through 6. This court

also amended the 25-year personal use enhancements imposed on counts 3 and 4 to 20-

year enhancements under subdivision (c) of section 12022.53 because defendant “was not

the actual shooter but instead was an aider and abettor to defendant Martinez, the actual

shooter.” “Both the gang and firearm enhancements may be imposed only on . . .

Martinez, the actual shooter.” (Cervantes I, supra, E031955; Martinez, supra, E076841;

Cervantes II, supra, E080152.)

Between November 6, 2003, and August 12, 2005, the trial court corrected the

sentencing issues as directed by this court by changing the section 12022.53,

subdivision (d) enhancements to subdivision (c) enhancements; striking the gang

enhancements; and preparing an amended abstract of judgment, which reflected

defendant’s aggregate determinate sentence as 90 years.5

4 The same jury convicted Martinez of the same crimes and found true the same enhancement allegations. (Cervantes I, supra, E031955; Martinez, supra, E076841.)

5 In Martinez, on appeal from the denial of his former section 1170.95 petition, this court wrote, “On August 8, 2005, the trial court prepared an amended abstract of judgment, which reflected [Martinez’s] sentence as 60 years determinate, followed by life without the possibility of parole, and three terms of life with the possibility of parole.” This court affirmed the order denying Martinez’s petition because “defendant was the actual killer.” (Martinez, supra, E076841.)

5 On November 15, 2024, defendant filed a motion for a Franklin hearing. On

December 20, 2024, the court appointed counsel for defendant.

On March 14, 2025, defense counsel filed a request to be relieved as counsel of

record and for the Franklin motion to be taken off calendar. Defense counsel contended

that because defendant was over the age of 18 when he committed the instant offenses

and was sentenced to LWOP, defendant was ineligible for a Franklin hearing.

At a hearing on March 14, 2025, defense counsel informed the court that

defendant “is an inmate who was sentenced to life without the possibility of parole. He

was over the age of 26 at the time the offense was committed. It appears he does not

qualify for a youth offender parole hearing or a Franklin proceeding. We would ask that

motion be taken off calendar or dismissed at this time.”

The court indicated that it had “reviewed the court file and based on the court file

and the factors stated by defense counsel and the People in agreement, he is statutorily

ineligible.” The court denied defendant’s motion for a Franklin hearing.6

II. DISCUSSION

Defendant contends that defense counsel and the court below erred in determining

he was 26 years old at the time he committed the offenses for which he was convicted.

Defendant also maintains that defense counsel and the court below overlooked the

caselaw defendant expressly cited in his motion, Briscoe, supra, 105 Cal.App.5th 479,

6 The minute order instead reflects that the court granted defense counsel’s motion to take the matter off calendar and be relieved as counsel of record.

6 which specifically held that even those sentenced to LWOP may be entitled to a Franklin

hearing if they were convicted as nonkiller participants in a crime.

Appellate counsel and the People agree that the court erred in determining that

defendant was 26 years old when he committed the offenses, but that it properly denied

defendant’s motion for a Franklin hearing because the jury found true two special murder

circumstances allegations under section 190.2, subdivision (a).7 We affirm.

Senate Bill No. 260 (2013-2014 Reg. Sess.) added section 3051, which requires

the Board of Parole Hearings “to conduct a ‘youth offender parole hearing’ during the

15th, 20th, or 25th year of a juvenile offender’s incarceration. [Citation.]” (Franklin,

supra, 63 Cal.4th at p. 277.) “Section 3051 . . . reflects the Legislature’s judgment that

25 years is the maximum amount of time that a juvenile offender may serve before

becoming eligible for parole.” (Id. at p. 278.) “The statutory text makes clear that the

Legislature intended youth offender parole hearings to apply retrospectively, that is, to all

eligible youth offenders regardless of the date of conviction.” (Ibid.)

Eligible “youthful offenders” must be given “an adequate opportunity to make a

record of factors, including youth-related factors, relevant to the eventual parole

determination, . . .” (Franklin, supra, 63 Cal.4th at p. 286.) “If the trial court determines

that [a youthful offender] did not have sufficient opportunity, then the court may receive

submissions and, if appropriate, testimony . . . subject to the rules of evidence. [The

youthful offender] may place on the record any documents, evaluations, or testimony

7 The People additionally assert that Briscoe was wrongfully decided.

7 (subject to cross-examination) that may be relevant at his eventual youth offender parole

hearing, and the prosecution likewise may put on the record any evidence that

demonstrates the . . . offender’s culpability or cognitive maturity, or otherwise bears on

the influence of youth-related factors.” (Franklin, at p. 284.)

Eligible “youthful offenders” with final convictions may file postjudgment

motions in the trial court to present and preserve such evidence. (In re Cook (2019) 7

Cal.5th 439, 447, 449; id. at p. 452 [“In cases with final judgments, section 1203.01 gives

the trial court authority to conduct an evidence preservation proceeding as envisioned in

Franklin”]; accord, Hardin, supra, 15 Cal.5th at p. 840.)

“Under the current version of the statute, most persons incarcerated for a crime

committed between ages 18 and 25 are entitled to a parole hearing during the 15th, 20th,

or 25th year of their incarceration. [Citation.] But not all youthful offenders are eligible

for parole hearings. The statute excludes, among others, offenders who are serving

sentences of life in prison without the possibility of parole for a crime committed after

the age of 18. [Citation.]” (Hardin, supra, 15 Cal.5th at pp. 838-839; see § 3051,

subd. (h).)

In Hardin, the defendant challenged his ineligibility for a section 3051 parole

hearing on equal protection grounds. The court held that the defendant had “not

demonstrated that Penal Code section 3051’s exclusion of young adult offenders

sentenced to life without parole is constitutionally invalid under a rational basis standard,

either on its face or as applied to Hardin and other individuals who are serving life

8 without parole sentences for special circumstance murder. Under California law, special

circumstance murder is a uniquely serious offense, punishable only by death or life

without possibility of parole.” (Hardin, supra, 15 Cal.5th at p. 839; see id. at p. 859

[“[S]ection 190.2 . . . lists special circumstances that, under California law, mark a first

degree murder particularly egregious and thus render the perpetrator eligible for the death

penalty, consistent with Eighth Amendment requirements”].)

The defendant had “not demonstrated that the Legislature acted irrationally in

declining to grant the possibility of parole to young adult offenders convicted of special

circumstance murder, even as it has granted youth offender hearings to young adults

convicted of other offenses.” (Hardin, supra, 15 Cal.5th at p. 839.) “[T]he exclusion of

offenders who are serving sentences of life in prison without the possibility of parole for

a crime committed after the age of 18 from youth offender parole eligibility is [not]

irrational,” for equal protection purposes. (Id. at p. 864 [Where the defendant was the

actual killer of the victim].)

In Briscoe, the court noted that Hardin “did not foreclose ‘other as-applied

challenges’ to the statute ‘based on particular special circumstances or the factual

circumstances of individual cases.’ [Citation.]” (Briscoe, supra, 105 Cal.App.5th at

p. 484, citing Hardin, supra, 15 Cal.5th at p. 864.) Briscoe held that, in “the narrow

factual context presented here,” “section 3051 violates equal protection by excluding

youth offenders sentenced for special circumstance murder under section 190.2,

subdivision (d)—which applies to nonkiller participants in specified felony offenses

9 during which a murder occurred—while including those convicted of nonspecial

circumstance first degree felony murder for the same specified felony offenses per the

exact same standard under section 189, subdivision (e)(3).” (Briscoe, at p. 485.) “We

find that section 3051 violates equal protection as applied to Briscoe and other youth

offenders sentenced for special circumstance murder during a robbery or burglary under

section 190.2, subdivision (d).” (Id. at p. 490, fn. omitted.)

“We are not the first to observe that excluding youth special circumstance

murderers who did not actually kill or intend to kill from the opportunity to seek parole

under section 3051 is problematic. [Citations.]” (Briscoe, supra, 105 Cal.App.5th at

p. 493.) Briscoe noted that section 189, subdivision (e)(3), which defines the current

doctrine of felony murder, and the special circumstance in section 190.2, subdivision (d),

“employ the same standard of liability.” Thus, the law permits juries to render true

findings on the enhancements even where the “offenders were neither the actual killer nor

acted with an intent to kill.” Therefore, the culpability of a defendant who suffered a true

finding on a section 190, subdivision (d) enhancement is no different from that of an

offender convicted of first degree felony murder under section 189, subdivision (e)(3).

(Id. at pp. 489-495.)

First, defendant here has failed both below and on appeal to demonstrate that

section 3051’s exclusion of young adult offenders sentenced to LWOP based on a section

190.2, subdivision (a) enhancement is constitutionally invalid, either on its face or as

applied to defendant. (Hardin, supra, 15 Cal.5th at p. 839.) Second, the jury in

10 defendant’s case found true special circumstance allegations under section 190.2,

subdivision (a)(21) and (a)(22), not a special circumstance allegation under section 190.2,

subdivision (d) as in Briscoe. Thus, Briscoe is distinguishable, and the court properly

dismissed defendant’s motion.

III. DISPOSITION

The order dismissing defendant’s motion for a Franklin hearing is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER ______________________________________________________________________________________________________________________________________________________________________

J.

We concur:

RAMIREZ ______________________________________________________________________________________________________________________________________________________________________

P. J.

CODRINGTON ______________________________________________________________________________________________________________________________________________________________________