Filed 2/23/22 P. v. Jimenez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

MEMORANDUM OPINION[1]

In 2007, a jury found defendant Ignacio Jimenez guilty on two counts of rape by force or violence; seven counts of lewd conduct by force or violence; and five counts of aggravated sexual assault on a child under the age of 14. The trial court imposed a prison term of 210 years to life. We affirmed the judgment on appeal.[2]

In 2020, Jimenez filed a pro se petition in the trial court for resentencing as a youthful offender under Assembly Bill No. 1308 (2017–2018 Reg. Sess.). He asserted he was 15 years old when he committed the offenses. His petition cited, among other grounds, the Eighth Amendment’s prohibition on cruel and usual punishment, equal protection, and due process. He argued that because he was a youthful offender at the time, and because the trial court did not consider youth-related mitigating factors at the time of sentencing, he was “entitled to a hearing for the court to consider all mitigating youthful offender factors for the purpose of obtaining an early release.”

In ruling on the petition, the trial court concluded Jimenez is entitled to a youthful offender parole hearing under Penal Code section 3051, but that he must follow the procedures set forth in Penal Code section 1203.01 to make a record. (See People v. Franklin (2016) 63 Cal.4th 261 (Franklin) [youth offender was entitled to determination of whether he was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing]; In re Cook (2019) 7 Cal.5th 439 [defendant was entitled to trial court proceeding for making record of mitigating evidence tied to youth].) Accordingly, the trial court appointed counsel for that purpose and ordered counsel to schedule the matter and request a hearing if necessary. As to the request for resentencing, the trial court ruled Jimenez was not entitled to further relief beyond the ordered procedures, and the court denied the petition.

Jimenez appealed. We appointed counsel, who filed an opening brief under People v. Serrano (2012) 211 Cal.App.4th 496, declaring he had found no arguable issues to be pursued on appeal. We notified Jimenez of his right to submit a supplemental brief on his own behalf, and he did so.

Jimenez cites no legal authority that would empower us to order a recall of his sentence at this time. He argues his sentence must be recalled because it violates the Eighth Amendment and equal protection under People v. Contreras (2018) 4 Cal.5th 349 (Contreras). In Contreras, however, the defendants had been found ineligible for a youthful parole hearing because they were convicted under the One Strike law. (Id. at p. 359.) In this case, by contrast, the trial court ruled that Jimenez was eligible for a youthful parole hearing under People v. Edwards (2019) 34 Cal.App.5th 183, 189 [exclusion of one-strike youthful offenders from statute mandating youthful-offender parole hearings violated equal protection].) As a result, no further relief is required at this time. Penal Code section 3051 “establishes what is, in the Legislature’s view, the appropriate time to determine whether a juvenile offender has ‘rehabilitated and gained maturity’ [citation] so that he or she may have ‘a meaningful opportunity to obtain release’ [citation]. Sections 3051 and 3046 have thus superseded the statutorily mandated sentences of inmates who . . . committed their controlling offense before the age of 18.” (Franklin, supra, 63 Cal.4th at p. 278.)

Accordingly, we will affirm the judgment.

Disposition

The judgment is affirmed.

_______________________________

Greenwood, P. J.

WE CONCUR:

______________________________________

Grover, J.

______________________________________

Lie, J.

People v. Jimenez

No. H049329

[1] We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)

[2] (People v. Jimenez (Oct. 24, 2008, H031681) [nonpub. opn.].) We take judicial notice of our opinion in that matter.