Filed 2/24/22 P. v. Chhuon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge. Reversed with directions.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

“A youth offender parole hearing is 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 . . . at the time of the controlling offense.” (Pen. Code, § 3051, subd. (a).)[1] If defendant and appellant Rithy Chhuon were eligible for the youth offender parole hearing program, he would qualify for such a hearing in 2028.[2] (§ 3051, subd. (b)(2).)

In the meantime, defendant petitioned the trial court for a Franklin[3] hearing in order to make a record of his characteristics and circumstances around the time of his offenses to be used at his future parole hearing. The trial court denied defendant’s petition for a Franklin hearing on the basis that defendant is ineligible for a youth offender parole hearing.

Defendant raises three issues on appeal. First, defendant contends it violates equal protection to exclude sex offenders with multiple victims (former § 667.61, subd. (e)(5)) from the youth offender parole hearing program (§ 3501, subd. (h)). Second, defendant asserts his prison sentence violates the Eighth Amendment of the United States Constitution. Third, defendant contends the abstracts of judgment need to be corrected to reflect the correct years his crimes were committed. We reverse with directions.

FACTUAL AND PROCEDURAL HISTORY

A. DEFENDANT’S CRIMES AND SENTENCE

In August 2007, a jury convicted defendant of six offenses: four counts of committing a forcible lewd act upon a child (Pen. Code, § 288, subd. (b)(1)), one count of forcible oral copulation (former Pen. Code, § 288a, subd. (c)(2)), and one count of forcible sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)). The jury found true the allegation that the crimes were committed against more than one victim. (Former Pen. Code, § 667.61, subds. (b) & (e)(5).) Defendant was at least 16 years of age at the time of the commission of the above offenses, so defendant’s case was filed in criminal court, as opposed to a juvenile justice court. (Former Welf. & Inst. Code, § 707, subd. (d)(1).) In 2009, this court affirmed the judgment. (People v. Chhuon (Oct. 2, 2009, E045741) [nonpub. opn.].)[4]

Defendant was born on December 28, 1985, which means defendant’s 18th birthday was on December 28, 2003. In the second amended information, the crimes were alleged to have occurred during the following timeframes:

• Count 1 (§ 288, subd. (b)(1)) and Count 2 (§ 289, subd. (a)(1)): “On or about September 14, 2002 through July 31, 2004.”
• Count 3 (§ 288, subd. (b)(1)): “On or about June 1, 2003 through August 31, 2006.”[5]
• Count 4 (§ 288, subd. (b)(1)), Count 5 (§ 288, subd. (b)(1)), and Count 6 (former § 288a, subd. (c)(2)): “On or about June 1, 2003 through August 31, 2003.”

In April 2008, the trial court sentenced defendant to prison for a determinate term of 24 years and a consecutive indeterminate term of 30 years to life.

B. DEFENDANT’S PETITION

On December 13, 2019, defendant, representing himself, petitioned the trial court for a Franklin hearing. (§ 3051, subd. (a).) Specifically, defendant requested a hearing in which he could “make a sufficient record of information relevant for a youthful-offender hearing.” Defendant asserted he “did not have a ‘Youthful Offender’ hearing prior to his sentencing in adult court, before being sent to State prison.”

On December 26, 2019, the trial court issued a minute order reflecting that the petition was denied because “[d]efendant [is] ineligible per PC3051(h).” Section 3051, subdivision (h), provides, in relevant part: “This section shall not apply to cases in which sentencing occurs pursuant to . . . Section 667.61.”

DISCUSSION

A. FRANKLIN HEARINGS

During the youth offender parole hearing, the Parole Board must “give great weight to 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).) To perform that task, the Parole Board needs “information regarding the juvenile offender’s characteristics and circumstances at the time of the offense.” (Franklin, supra, 63 Cal.4th at p. 283.) “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.” (Id. at pp. 283-284.)

A Franklin hearing is designed to preserve those documents and recollections. In a Franklin hearing, a juvenile “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 the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding 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 [Parole] 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.)

B. EQUAL PROTECTION AND EXTENDING FRANKLIN HEARINGS

Defendant contends section 3051, subdivision (h), violates equal protection by excluding sex offenders who victimized multiple people, i.e., “one strike offenders,” from youth offender parole hearings, while including murderers and special circumstance murderers.

After considering defendant’s equal protection argument, we ordered the parties to submit supplemental briefing on two issues. The first issue was whether Franklin hearings should be extended to juveniles who are sentenced to indeterminate life sentences, regardless of whether they qualify for youth offender parole hearings (§ 3051, subd. (h)), because those juveniles will have “regular” parole hearings in the future (§ 3041; Cal. Code Regs., tit. 15, §§ 2281, 2432). The second issue was, if the parties answered “yes” to the first issue, then is defendant’s equal protection issue regarding his youth offender parole hearing, which would not occur until 2028 (§ 3051, subd. (b)(2)), not yet ripe for review because thus far only the Franklin hearing has been denied. (See Hayward Area Planning Assn., Inc. v. Alameda County Transp. Authority (1999) 72 Cal.App.4th 95, 102 [an issue is ripe for review when the decision issued by the court will not be purely advisory].)

1. EXTENDING FRANKLIN HEARINGS

Defendant and the People agree that Franklin hearings should be extended to all juveniles with indeterminate life sentences. In the People’s supplemental letter brief, they write, “Contrary to the trial court’s decision, the relevant statutes discussed by the California Supreme Court in . . . Franklin, supra, 63 Cal.4th 261, suggest [defendant] should be entitled to a Franklin hearing to preserve evidence of any youth-related mitigating factors, despite the fact that, as a One Strike offender, he is ineligible for a youth offender parole hearing under Penal Code section 3051, subdivision (h). Because [defendant] is still eligible for a regular parole eligibility hearing, during which youth-related factors may be considered, a Franklin hearing is appropriate to facilitate that later review.”

In regard to “regular” parole hearings, the law provides: “When a prisoner committed his or her controlling offense, as defined in subdivision (a) of Section 3051, when he or she was 25 years of age or younger, the [parole] board, in reviewing a prisoner’s suitability for parole pursuant to Section 3041.5, shall give great weight to 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).) “ ‘Controlling offense’ means the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.” (§ 3051, subd. (a)(1)(B).)

Thus, under section 4801, subdivision (c), if a defendant is afforded a “regular” parole hearing, and the defendant was 25 years old or younger at the time of the controlling offense, then the parole board must consider the characteristics and circumstances of his youth. (§ 4801, subd. (c); In re Brownlee (2020) 50 Cal.App.5th 720, 725-726.) Therefore, the reasoning of Franklin applies equally to youthful offenders who receive “regular” parole hearings. Because the offender’s youth is also relevant at the “regular” parole hearing, a record of the offender’s youth is necessary for the Parole Board to execute its job, and making a record of a defendant’s youthful characteristics and circumstances is best done closer in time to the controlling offense, than decades later when memories may have faded and documents may have been lost or destroyed. (Franklin, supra, 63 Cal.4th at pp. 283-284.) Accordingly, we conclude that defendant, as a youthful offender with an indeterminate life sentence, is entitled to a Franklin hearing.

2. EQUAL PROTECTION

The next issue is whether defendant’s equal protection contention—i.e., that “one strike” sexual offenders were wrongly excluded from youth offender parole hearings—is ripe for review. The People assert that the issue is not ripe for review, while defendant contends it is ripe for review.

“The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion. . . . [T]he ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy.” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.)

The first step in a ripeness analysis is determining whether the controversy is “definite and concrete” in that “ ‘the facts have sufficiently congealed to permit an intelligent and useful decision to be made.’ ” (Pacific Legal Foundation v. California Coastal Com., supra, 33 Cal.3d at pp. 170-171.) If defendant were to qualify for a youth offender parole hearing, that hearing would take place in 2028. (§ 3051, subd. (b)(2).) The trial court did not rule that defendant could not have a youth offender parole hearing in 2028. Thus, the trial court did not deny defendant a youth offender parole hearing. Therefore, we conclude the issue is not yet ripe for review because defendant has not been denied a youth offender parole hearing. Accordingly, we will not address the merits of the equal protection issue at this time.

Defendant asserts he requested a youth offender parole hearing in his trial court petition. Defendant notes that, in his petition, he cited statutes pertaining to youth offender parole hearings. Although defendant discussed youth offender parole hearings, his request to the trial court was focused on two topics: (1) a Franklin hearing, and (2) being resentenced under Miller v. Alabama (2012) 567 U.S. 460 and its progeny. Defendant titled his petition, “Petition for ‘Youthful Offender’ Resentencing Consideration and Evidence Preservation Proceedings.” Defendant argued that he had not been “sentenced as a youthful offender,” i.e., he wanted to be resentenced. Defendant also wrote, “In People v. Franklin, 63 Cal. 4th 251 (2016): A remand was appropriate to give opportunity to make a sufficient record of information relevant for a youthful-offender hearing,” i.e., he wanted a Franklin hearing. Moreover, to the extent defendant’s petition could be read as requesting a youth offender parole hearing, such a request would be premature in that he would not qualify for such a hearing until 2028.[6] In sum, we are not persuaded that the equal protection issue is ripe for review.

C. CRUEL AND UNUSUAL PUNISHMENT

Defendant contends his prison sentence of 24 years plus a consecutive indeterminate term of 30 years to life constitutes cruel and unusual punishment because it is a de facto life sentence for a juvenile offender. (U.S. Const., 8th Amend.)

“[A] sentence of 50 years to life is functionally equivalent to [an] LWOP” sentence for a juvenile (People v. Contreras (2018) 4 Cal.5th 349, 369), which, for nonhomicide juvenile offenders, violates the Eighth Amendment to the United States Constitution (id. at pp. 356 & 379). The foregoing rule is “a change in the law [that is] retroactively applicable to final judgments and therefore [creates] good cause for considering the merits of [a] habeas corpus petition.” (In re Bolton (2019) 40 Cal.App.5th 611, 620.)

“ ‘Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.’ [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170; see also People v. Dyer (1969) 269 Cal.App.2d 209, 212.) While an unauthorized sentence may be corrected at any time, it may only be corrected by a court with jurisdiction. (People v. Cabrera (2018) 21 Cal.App.5th 470, 477.)

In the instant case, the trial court denied defendant’s request for a Franklin hearing. Defendant’s notice of appeal reflects he is appealing from the denial of that petition. In this appeal, we cannot decide whether the trial court erred in sentencing defendant because imposition of the sentence is not included in defendant’s notice of appeal. At this late date, the issue must be raised in a petition for writ of habeas corpus.

D. ABSTRACTS OF JUDGMENT

The abstracts of judgment provide that defendant’s crimes were committed in 2004. Defendant contends the abstracts should be corrected to reflect defendant’s crimes were committed in 2003. The People concede the abstracts should be corrected for Counts 3 through 6, but the People dispute that Counts 1 and 2 occurred in 2003.[7]

“It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] The power is unaffected by the pendency of an appeal or a habeas corpus proceeding. . . . [¶] Clerical error, however, is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ ” (In re Candelario (1970) 3 Cal.3d 702, 705.) “[A] court—including an appellate court—that properly assumes or retains jurisdiction of a case ‘may correct such errors on its own motion or upon the application of the parties.’ ” (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.) “Of course, a trial court may sometimes be in a better position than an appellate court to correct a particular error.” (Id. at p. 187.)

In Counts 4 through 6, it was alleged that the crimes occurred “[o]n or about June 1, 2003 through August 31, 2003.” Because the crimes were alleged to have occurred in 2003, the year of the offenses should be 2003, not 2004 in the determinate abstract of judgment.

In Count 3, it was alleged that the crime occurred “[o]n or about June 1, 2003 through August 31, 2006.” In the original information, someone crossed out the “6” in “2006” and wrote a “3” above it, as in “2003”; however, no such correction appears on the second amended information. The verdict forms from defendant’s trial do not include the dates of the offenses, rather, they refer to the charging document. For example, the verdict form for Count 3 reads, “We, the jury in the above entitled action, find the defendant, Rithy Chhuon, GUILTY of the crime of Forcible Lewd Act Upon A Child, as charged in Count 3.” (Boldface omitted.)

The People concede that, based upon the trial testimony, the Count 3 offense occurred in the summer of 2003. During closing arguments in defendant’s trial, the People argued that Counts 3 through 6 consisted of various sexual acts committed against Jane Doe 2 “sometime in the summer of 2003.” During trial, Jane Doe 2 testified that defendant sexually abused her “n the summer of 2003.” Because the trial record clearly indicates that Count 3 occurred in 2003, we will direct the trial court to correct the indeterminate abstract of judgment to reflect the crime occurred in 2003.

The order denying defendant’s petition for a [i]Franklin hearing is reversed. The trial court is directed to conduct a Franklin hearing in the case. (Franklin, supra, 63 Cal.4th at pp. 283-284.) The trial court is further directed to (1) correct the indeterminate abstract of judgment to reflect the crime in Count 3 was committed in 2003 and that the crime in Count 1 was committed sometime from 2002 to 2004; (2) correct the determinate abstract of judgment to reflect the crime in Count 2 was committed sometime from 2002 to 2004, and the crimes in Counts 4, 5, and 6 were committed in 2003; and (3) forward the corrected abstracts of judgment to the appropriate agency/agencies.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.

[1] All subsequent statutory references will be to the Penal Code unless otherwise indicated.

[2] Defendant calculates his youth parole eligibility date as 2024 or 2029.

[3] People v. Franklin (2016) 63 Cal.4th 261, 283-284 (Franklin).

[4] This court previously granted defendant’s and the People’s requests to take judicial notice of our prior opinion.

[5] In the original information, someone crossed out the “6” in 2006 and wrote “3”, as in “2003.” That change was not reflected in the second amended information.

[6] As set forth ante, Defendant calculates his youth parole eligibility date as 2024 or 2029. If defendant’s parole eligibility date is 2024, the request would still be premature.

[7] Defendant’s 18th birthday was on December 28, 2003. However, youth offender status applies to people who commit their controlling offenses when they are 25 years old or younger. (§§ 3051, subd. (a)(1), 4801, subd. (c).) Thus, if defendant were 19 years old when he committed his controlling offense, his age would not cause him to be excluded from having the status of a youth offender.