People v. Juarez CA2/2

P
Filed 4/23/21 P. v. Juarez CA2/2
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                        DIVISION TWO


 THE PEOPLE,                                                            B304377

           Plaintiff and Respondent,                                    (Los Angeles County
                                                                        Super. Ct. No. BA469086)
           v.

 OSMAN ROLANDO GALICIA
 JUAREZ,

           Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County. Craig J. Mitchell, Judge. Affirmed and
remanded with directions.
      Jean Ballantine, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and
Michael J. Wise, Deputy Attorneys General, for Plaintiff and
Respondent.
       Osman Rolando Galicia Juarez appeals the judgment
entered following a jury trial in which he was convicted of two
counts of sexual intercourse or sodomy with a child 10 years old
or younger (Pen. Code,1 § 288.7, subd. (a); counts 4 & 7), two
counts of oral copulation or sexual penetration with a child 10
years old or younger (§ 288.7, subd. (b); counts 5 & 8), and three
counts of a lewd act upon a child under the age of 14 (§ 288,
subd. (a); counts 3, 6, & 9).2 The trial court sentenced appellant
to two consecutive terms of 25 years to life on counts 4 and 7,
plus concurrent terms on the remaining counts of conviction, for a
total term of 50 years to life in state prison.
       Appellant was 18 years old when he committed multiple
nonviolent sex offenses against his half-sister beginning when
she was nine. At sentencing, the trial court ruled that because of
the nature of his offenses, appellant is ineligible for a youth
offender parole hearing under section 3051. Appellant contends
the court incorrectly determined that appellant is excluded from
early parole consideration based on his youth at the time of his
offenses, and the error requires remand for a hearing under
People v. Franklin (2016) 

63 Cal. 4th 261

(Franklin) to preserve
evidence for a future youth offender parole hearing in accordance
with section 3051, subdivisions (d) through (f). We agree and
remand the matter to the trial court for a full hearing for the
purpose of affording both parties the opportunity to make a


      1   Undesignated statutory references are to the Penal Code.
      2 The jury acquitted appellant on counts 1 (sexual
intercourse or sodomy with a child 10 years old or younger,
§ 288.7, subd. (a)) and 2 (oral copulation or sexual penetration
with a child 10 years old or younger (§ 288.7, subd. (b)).




                                  2
record of information relevant to appellant’s future youth
offender parole hearing.
       Appellant further contends that his 50-year-to-life sentence
constitutes cruel and unusual punishment under the Eighth
Amendment and the California Constitution and therefore must
be reversed. We reject the claim based on our Supreme Court’s
holding in Franklin that sections 3051 and 4801, enacted by the
Legislature to bring juvenile sentencing in conformity with
Miller, Graham, and Caballero,3 render the constitutional
challenge raised by appellant moot. 

(Franklin, supra

, 63 Cal.4th
at p. 268; People v. Rodriguez (2018) 

4 Cal. 5th 1123

, 1126
(Rodriguez); People v. Lipptrapp (2021) 

59 Cal. App. 5th 886

, 891.)
                   FACTUAL BACKGROUND
       Appellant’s mother, Maria, left Guatemala for the United
States around 2003, leaving appellant with his grandparents.
Appellant was three years old. When he was 17, appellant moved
to Los Angeles from Guatemala to live with his mother, Maria’s
partner, and Maria’s two younger children⎯appellant’s half-
brother, H.L. (born in April 2010), and his half-sister, S.L. (born
in March 2008). Appellant shared a bedroom with H.L. and S.L.
H.L. and S.L. shared a bunk bed, and appellant had his own bed
across the room.
       Appellant admitted touching S.L.’s whole body, including
her chest, her anus, and her vagina, every two to three weeks
starting in December 2017. On the first occasion, appellant, S.L.,
and H.L. were watching television. According to appellant, S.L.


      3 Miller v. Alabama (2012) 

567 U.S. 460

(Miller); Graham
v. Florida (2010) 

560 U.S. 48

(Graham); People v. Caballero
(2012) 

55 Cal. 4th 262

(Caballero).




                                3
lay down next to appellant, and he began to touch her chest and
her back. In February 2018, appellant and S.L. were lying on
appellant’s bed when he touched her vagina with his hand for the
first time, and then penetrated her vagina with his penis.
        The next incident occurred a few weeks later when
appellant returned from a trip to Atlanta. According to
appellant, S.L. lay down next to appellant on his bed, and he
began touching her and inserted his penis into her vagina. The
third time appellant penetrated S.L.’s vagina occurred on
Mother’s Day in May 2018. On the night of June 21, 2018,
appellant penetrated S.L.’s vagina with his penis a fourth time.
        Maria had noticed that appellant and S.L. had a very close
sibling relationship, but by June 22, 2018, she had become
concerned that something was going on between them. The night
before, Maria had heard a noise from the children’s bedroom, but
when she went into the room they appeared to be asleep in their
own beds. The next morning, Maria asked S.L. if she had gotten
up in the night. S.L. was reluctant to answer, but said no and
seemed nervous. Despite her concerns, Maria drove S.L. to school
at 8:00 a.m., but returned to pick her up at 9:00 a.m. to take her
to the hospital for tests. At the hospital, S.L. revealed to her
mother that appellant had touched her inappropriately.
        S.L. told a forensic examiner that as she was returning to
bed from the bathroom, appellant had grabbed her leg, drew her
toward him, and started touching her “private part.” She tried to
get away, but he pulled her back, took her shorts off, and
removed his own shorts and underwear. S.L. continued to
struggle and told him to stop, but appellant hugged her and held
her “hard” on her arm as he touched her chest, vagina, and anus.
Appellant grabbed S.L.’s shoulders, trying to make her face him.




                                4
He lay on top of S.L. and licked her chest. He put his finger in
her vagina, scratching her with his fingernail, and he put his
penis in her vagina, which was painful. S.L. remembered that
the first time appellant licked her chest was around Christmas
when she was nine years old, and she was still nine the first time
appellant touched her vagina and put his “middle part” in her
“middle part.”
       At trial, S.L. testified that appellant touched her in ways
she did not like. She stated that appellant touched her “private
part.” But when she was asked for details, she repeatedly said
she did not remember because she did not want to get her brother
into trouble.
                             DISCUSSION
  I. Appellant Is Entitled to a Franklin Proceeding
       Before imposing a sentence of two consecutive 25-year-to-
life terms, the trial court recognized that a youthful offender
sentenced to a life term would “normally” have a right to early
parole consideration “at the 25-year mark.” However, in this
case, the trial court believed that “an exception [was] carved out”
for “these type[s] of offenses,” and appellant would not qualify for
a youth offender parole hearing under section 3051. To the
contrary, section 3051 applies to appellant without exception.
       Section 3051 provides for a youth offender parole hearing to
be conducted in the 25th year of incarceration by “the Board of
Parole Hearings [(the Board)] for the purpose of reviewing the
parole suitability of any prisoner who was 25 years of age or
younger . . . at the time of the controlling offense.” (§ 3051, subd.
(a)(1).) The “controlling offense” is the offense for which the
longest term of imprisonment was imposed (§ 3051, subd.
(a)(2)(B)), which in this case is either count 4 or count 7, based on




                                 5
the 25-year-to-life sentence imposed for each of those counts

(Franklin, supra

, 63 Cal.4th at p. 279). A prisoner eligible for
release on parole at a youth offender parole hearing is entitled to
such a hearing on the first day of the prisoner’s 25th year of
incarceration. (§ 3051, subd. (b)(3).)
      Early parole consideration under section 3051 is not
available to every youth offender. Section 3051, subdivision (h)
specifically excludes those offenders sentenced under the Three
Strikes law (§§ 1170.12, subds. (b)–(i), 667), the One Strike law
(§ 667.61, mandating a life sentence for certain sex offenses
committed under specified circumstances), or to life in prison
without the possibility of parole for a controlling offense that was
committed after the person reached the age of 18.4 (People v.
Contreras (2018) 

4 Cal. 5th 349

, 359, 382; In re Bolton (2019) 

40
Cal. App. 5th 611

, 617; People v. Phung (2018) 

25 Cal. App. 5th 741

,
755.)
      None of these exclusions applies to appellant. Appellant
has no prior serious or violent felony convictions, and was not
sentenced under the Three Strikes law. Nor do appellant’s
counts of conviction qualify for One Strike sentencing under




       4 The constitutionality of subdivision (h) is an issue currently being
debated by Courts of Appeal (see, e.g., People v. Edwards (2019)

34 Cal. App. 5th 183

, 197; In re Woods (Apr. 2, 2021, B301891) ___
Cal.App.5th ___) and is currently under review in the California Supreme
Court (see People v. Williams (2020) 

47 Cal. App. 5th 475

, rev. granted
July 22, 2020, S262229; People v. Moseley (2021) 

59 Cal. App. 5th 1160

,
rev. granted Apr. 14, 2021, S267309).




                                      6
section 667.61,5 and he was not sentenced under that statute.
Further, appellant was not sentenced to life without the
possibility of parole.
       While conceding that appellant will be entitled to a youth
offender parole hearing under section 3051, respondent asserts
that remand is unnecessary because appellant already had an
opportunity at his sentencing hearing to make a record of
information pertaining to his youth-related characteristics and
circumstances at the time of the offense to be considered at his
eventual parole hearing. To the contrary, although appellant’s
trial counsel argued for sentencing leniency based on appellant’s
youth, no evidence of any youth-related factors specific to
appellant was presented to preserve a record for a youth offender
parole hearing 25 years in the future.
       “The Legislature has declared that ‘[t]he youth offender
parole hearing to consider release shall provide for a meaningful
opportunity to obtain release’ (§ 3051, subd. (e)) and that in order
to provide such a meaningful opportunity, the Board ‘shall give
great weight to the diminished culpability of juveniles as
compared to adults, the hallmark features of youth, and any
subsequent growth and increased maturity’ (§ 4801, subd. (c)).”

(Franklin, supra

, 63 Cal.4th at p. 283.) In order to allow the


      5  Section 667.61 provides that any person who is convicted
of committing a lewd or lascivious act in violation of section 288,
subdivision (a) or (b), under one or more of the circumstances
specified in section 667.61, subdivision (d) or under two or more
of the circumstances specified in section 667.61, subdivision (e)
shall be punished by imprisonment in the state prison for 25
years to life. None of the circumstances enumerated in section
667.61, subdivision (d) or (e) is present in this case.




                                 7
Board to fulfill its mandate, our Supreme Court requires that
youth offenders like appellant be given an opportunity to
preserve evidence of youth-related factors to be considered in
their eventual parole hearing. (Id. at p. 284.)
       As Franklin observed, the statutory scheme specifically
“contemplate[s] 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 the
Board’s consideration. For example, section 3051, subdivision
(f)(2) provides that ‘[f]amily members, friends, school personnel,
faith leaders, and representatives from community-based
organizations with knowledge about the individual before the
crime . . . may submit statements for review by the board.’
Assembling such statements ‘about the individual before the
crime’ is typically a task more easily done at or near the time of
the juvenile’s offense rather than decades later when memories
have faded, records may have been lost or destroyed, or family or
community members may have relocated or passed away.
[Citation.] In addition, section 3051, subdivision (f)(1) provides
that any ‘psychological evaluations and risk assessment
instruments’ used by the Board in assessing growth and maturity
‘shall take into consideration . . . any subsequent growth and
increased maturity of the individual.’ Consideration of
‘subsequent growth and increased maturity’ implies the
availability of information about the offender when he was a
juvenile.” 

(Franklin, supra

, 63 Cal.4th at pp. 283–284.)
       Almost none of the youth-related information envisioned by
the court in Franklin was presented at appellant’s sentencing
hearing in this case. The defense submitted no sentencing
memorandum, and the People’s sentencing memorandum




                                8
contained no mitigating youth-related evidence. Appellant’s
probation report contains no discussion of any youth-related
factors and states there were no circumstances in mitigation.
Further, although defense counsel brought the court’s attention
to appellant’s recent immigration from a very small town in
Guatemala with different social norms, counsel presented no
evidence about any other environmental, social, or psychological
factors affecting appellant prior to or at the time of the offenses.
        The goal of the proceeding envisioned by Franklin “is to
provide an opportunity for the parties to make an accurate record
of the juvenile offender’s characteristics and circumstances at the
time of the offense so that the Board, years later, may properly
discharge its obligation to ‘give great weight to’ youth-related
factors (§ 4801, subd. (c)) in determining whether the offender is
‘fit to rejoin society’ despite having committed a serious crime
‘while he was a child in the eyes of the law.’ ” 

(Franklin, supra

,
63 Cal.4th at p. 284.) Appellant’s sentencing hearing did not
meet this goal. Accordingly, appellant is entitled to a remand for
a full Franklin evidentiary hearing to enable the parties to make
a record of the information contemplated under section 3051.
  II. The Availability of Early Parole Consideration
        Under Section 3051 Renders Appellant’s
        Constitutional Challenge to His Sentence Moot
        Appellant seeks reversal of his 50-year-to-life sentence on
the ground that it is cruel and unusual in violation of the Eighth
Amendment and the California Constitution. In Franklin, our
Supreme Court “held that a juvenile offender’s Eighth
Amendment challenge to his 50-year-to-life sentence was
rendered moot” by the enactment of sections 3046,




                                 9
subdivision (c), 3051, and 4801,6 which instituted youth offender
parole hearings and made youth offenders like Franklin eligible
for such a hearing during their 25th year of incarceration.

(Rodriguez, supra

, 4 Cal.5th at p. 1130; 

Franklin, supra

, 63
Cal.4th at p. 280.) In accordance with Franklin’s holding on this
issue, we reject appellant’s claim.
       Franklin began its analysis of the Eighth Amendment
claim with the recognition that the Legislature enacted these
statutes with the express purpose of bringing juvenile sentencing
into conformity with Graham, Miller, and Caballero by
establishing a mechanism by which a person serving a sentence
for crimes committed as a juvenile would have an opportunity to
obtain release upon showing growth, rehabilitation, and
maturity. 

(Franklin, supra

, 63 Cal.4th at p. 277; Stats. 2013,
ch. 312, § 1.) But the means for obtaining early release upon the
requisite showing does not invalidate the original sentence. As
Franklin explained: “The Legislature did not envision that the
original sentences of eligible youth offenders would be vacated
and that new sentences would be imposed to reflect parole


      6  As mentioned, section 4801, subdivision (c) specifies that
in its review of a youth offender’s suitability for parole in the
context of a section 3051 hearing, the Board of Parole Hearings
“shall give great weight to the diminished culpability of juveniles
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.”
       Subdivision (c) of section 3046 requires that an inmate
found suitable for parole pursuant to a youth offender parole
hearing under section 3051 be released regardless of the manner
in which the Board of Parole Hearings set release dates pursuant
to section 3041, subdivision (a).




                                10
eligibility during the 15th, 20th, or 25th year of incarceration.
The continued operation of the original sentence is evident from
the fact that an inmate remains bound by that sentence, with no
eligibility for a youth offender parole hearing, if ‘subsequent to
attaining 23 years of age’ the inmate ‘commits an additional
crime for which malice aforethought is a necessary element . . . or
for which the individual is sentenced to life in prison.’ (§ 3051,
subd. (h); Stats. 2015, ch. 471.) But section 3051 has changed the
manner in which the juvenile offender’s original sentence
operates by capping the number of years that he or she may be
imprisoned before becoming eligible for release on parole. The
Legislature has effected this change by operation of law, with no
additional resentencing procedure required.” (Franklin, at
pp. 278–279.)
       Appellant nevertheless contends that because his 50-year-
to-life sentence was unconstitutional ab initio, the “existence of a
potential mechanism for being paroled 25 years into the future”
under section 3051 does not moot the Eighth Amendment
violation in this case. Our Supreme Court rejected a similar
argument in Franklin. While an adult offender sentenced to two
consecutive 25-year-to-life terms would not be eligible for parole
consideration until he or she had served 50 years (§ 3046, subd.
(b); 

Franklin, supra

, 63 Cal.4th at p. 273), a youth offender
sentenced in the same manner (who is not otherwise excluded
from early parole consideration under section 3051,
subdivision (h)) is eligible for parole consideration and a
meaningful opportunity for release as though the original
sentence were 25 years to life. 

(Franklin, supra

, 63 Cal.4th at
pp. 279–280.) As Franklin observed, such a sentence is therefore
neither LWOP nor its functional equivalent. 

(Franklin, supra

, 63




                                11
Cal.4th at p. 280.) Indeed, it is tantamount to a sentence of 25
years to life. Accordingly, by operation of section 3051, section
3046, subdivision (c), and section 4801, appellant’s constitutional
challenge to his sentence is moot.7
       Finally, appellant asserts that “[p]ushing a first
opportunity for parole so far into the future” leaves “no reliable
way to measure his cognitive abilities, maturity, and other youth
factors when the offense was committed more than 25 years
prior.” We reject the claim in light of our decision to remand the
matter for a “Franklin” hearing, at which appellant “may place
on the record any documents, evaluations, or testimony (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 [appellant’s]
culpability or cognitive maturity, or otherwise bears on the
influence of youth-related factors.” 

(Franklin, supra

, 63 Cal.4th
at p. 284.)




      7  Appellant does not argue that a sentence of 25 years to
life is unconstitutional or would not be an appropriate sentence
under the circumstances of this case, conceding that “[t]he crimes
committed in this case were no doubt serious and deserving of a
lengthy sentence.”




                                12
                           DISPOSITION
       The judgment is affirmed. The matter is remanded to the
trial court to afford both parties the opportunity to make a record
of information relevant to appellant’s eventual youth offender
parole hearing under Penal Code section 3051, as set forth in
People v. Franklin (2016) 

63 Cal. 4th 261

.
       NOT TO BE PUBLISHED.




                                     LUI, P. J.
We concur:




      ASHMANN-GERST, J.




      HOFFSTADT, J.




                                13

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