People v. Jones CA4/2

Opinion

Filed 12/30/20 P. v. Jones 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E073115

v. (Super.Ct.No. 16CR065916)

DAYVION JONES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Ronald M.

Christianson, Judge. Affirmed.

Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P.

Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

In 2016, when he was just over 18 years old, appellant and defendant, Dayvion

Jones, and his cohort shot and killed the victim in a gang-related murder. On May 8,

2019, a jury convicted defendant of one count of first degree murder. (Pen. Code,1 § 187,

subd. (a); count 1.) The jury also found true firearm enhancements under section

12022.53, subdivisions (b), (c), (d), and (e)(1), and the allegation that the murder was

committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).

On June 6, 2019, a trial court sentenced defendant to an aggregate sentence of 50

years to life. At sentencing, the court noted that defendant qualified under the youthful

offender parole statute and would be given the opportunity to have a parole date in 25

years rather than 50 years.

On appeal, defendant requests that we remand the matter and direct the trial court

to hold a Franklin2 hearing to allow him the opportunity to make a record of mitigating

youth-related factors. We affirm without prejudice to defendant filing a motion under

section 1203.01.

DISCUSSION

Remand for a Franklin Hearing Is Not Warranted

Defendant contends he is entitled to a remand for a Franklin hearing. We

disagree.

1 All further statutory references will be to the Penal Code unless otherwise noted.

2 People v. Franklin (2016) 63 Cal.4th 261 (Franklin). 2 We recently addressed this issue in People v. Medrano (2019) 40 Cal.App.5th 961,

963 (Medrano). “In Franklin, supra, 63 Cal.4th 261, the Supreme Court held that when a

juvenile offender receives an indeterminate life sentence, the offender must be ‘given

adequate opportunity at sentencing to make a record of mitigating evidence tied to his

youth.’ [Citation.] [Franklin’s] case was remanded to the trial court ‘for the limited

purpose of determining whether [the offender] was afforded an adequate opportunity to

make a record of information’ relevant to his eventual youth offender parole hearing.

[Citation.]” (Medrano, supra, 40 Cal.App.5th at p. 967.)

We observed that “[s]ection 3051 was amended effective January 1, 2016, to

require youth offender parole hearings for offenders who were 25 years old or younger at

the time of the controlling offense. [Citation.] The Supreme Court decided Franklin in

May 2016.” (Medrano, supra, 40 Cal.App.5th at p. 967.) We noted that “Medrano was

sentenced in December 2017 for offenses he committed when he was 19 years old. Thus,

the Supreme Court decision establishing [his] right to present mitigating youth-related

evidence at sentencing was in place for one and one-half years before [he] was

sentenced.” (Ibid.) Moreover, the record “contain[ed] no indication that Medrano was

not given an adequate opportunity to make a record of mitigating youth-related evidence

as contemplated in Franklin.” (Ibid.)

We recognized that a juvenile offender may file a motion under section 1203.01

and In re Cook (2019) 7 Cal.5th 439, 446-447 (Cook) “for the purpose of making a record

of mitigating youth-related evidence.” (Medrano, supra, 40 Cal.App.5th at p. 968.) We

thus concluded, “given the availability of the motion hearing described in Cook, we see

3 no basis to order the same relief that was granted in Franklin. Instead, we affirm without

prejudice to [the defendant’s] filing a motion ‘for a Franklin proceeding under the

authority of section 1203.01’ and Cook.” (Ibid.)

Defendant here was sentenced in June 2019 for offenses he committed when he

was 18 years old. Therefore, Franklin, supra, 63 Cal.4th 261, was in place for three

years before defendant was sentenced. As in Medrano, the record here “contains no

indication that [defendant] was not given an adequate opportunity to make a record of

mitigating youth-related evidence as contemplated in Franklin.” (Medrano, supra, 40

Cal.App.5th at p. 967.) In other words, “[t]he record does not indicate that [his]

opportunity to exercise that right was inadequate in any respect. Rather, it appears that

he merely failed—whether by choice or by inadvertence—to exercise it.” (Ibid.)

Defendant acknowledges that at the time of his sentencing Franklin had been

decided, and he did not request a Franklin hearing. He also recognizes that we declined

to remand for a Franklin hearing in Medrano under similar circumstances, and we

concluded the proper remedy was to affirm without prejudice to file a motion under

section 1203.01. Nonetheless, he asks us to “reconsider this approach” and instead order

a remand for the trial court to conduct a Franklin hearing. Defendant has given us no

persuasive reason to depart from our holding in Medrano.

We therefore conclude, as we did in Medrano, that the appropriate remedy is to

affirm the judgment without prejudice to defendant “filing a motion ‘for a Franklin

proceeding under the authority of section 1203.01’ and Cook.” (Medrano, supra, 40

Cal.App.5th at p. 968.)

4 DISPOSITION

The judgment is affirmed without prejudice to defendant filing a motion for a

Franklin proceeding under the authority of section 1203.01 and Cook, supra, 7 Cal.5th

439.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

MILLER Acting P. J.

SLOUGH J.