In re ANTHONY MAURICE COOK, JR., on Habeas Corpus.
No. G050907
Fourth Dist., Div. Three
Jan. 10, 2017
7 Cal. App. 5th 393 | 212 Cal. Rptr. 3d 582
THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER (see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e)) April 12, 2017, S240153.
COUNSEL
Anthony Maurice
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Theodore Cropley, Parag Agrawal and Lynne G. McGinnis, Deputy Attorneys General, for Respondent The People.
FYBEL, J.—
INTRODUCTION
In 2009, the convictions against petitioner Anthony Maurice Cook, Jr. (Petitioner), for two counts of murder, one count of attempted murder, and firearm enhancements were affirmed in People v. Shaw and Cook (May 28, 2009, G041439) (nonpub. opn.). By petition for writ of habeas corpus, Petitioner challenged his sentence of 125 years to life in prison. Petitioner, who was 17 years old when he committed the crimes, contended his sentence was unconstitutional under Miller v. Alabama (2012) 567 U.S. 460 [183 L.Ed.2d 407, 132 S.Ct. 2455] (Miller) and, as relief, asked to be resentenced.
In In re Cook (Apr. 6, 2016, G050907) (nonpub. opn.) (Cook), we denied Petitioner‘s petition for writ of habeas corpus. We concluded, based on Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718, 193 L.Ed.2d 599], that Miller applied retroactively to cases on collateral review but that recently enacted
The petition is granted insofar as the relief sought in the prayer of Petitioner‘s supplemental opening brief seeks a hearing to allow Petitioner to make a record of mitigating evidence tied to his youth at the time of the offense. The matter is remanded with directions to the trial court to grant Petitioner a hearing at which he can make a record of such mitigating evidence. In doing so, we hold that the relief afforded by Franklin is available by both direct review and petition for writ of habeas corpus.
BACKGROUND
In December 2003, Petitioner and Rufus Raymond Shaw shot and killed Odrum Nader Brooks and his son, Demarcus T. Brooks, while the latter two sat in an automobile. Petitioner was 17 years old at the time. In 2007, a jury convicted Petitioner of two counts of first degree murder (
The trial court sentenced Petitioner to an indeterminate term of life with the possibility of parole for the attempted murder, plus five consecutive indeterminate terms of 25 years to life for murder and discharging a firearm, for a total sentence of 125 years to life. The convictions and sentence were affirmed in People v. Shaw and Cook, supra, G041439.
In 2014, Petitioner filed a petition for writ of habeas corpus in the superior court in which he had been convicted. The superior court denied the petition without an evidentiary hearing in September 2014.
One month later, Petitioner, who was self-represented at the time, filed a petition for writ of habeas corpus in the Court of Appeal. He sought relief based on Miller, supra, 567 U.S. 460. Counsel was appointed to represent Petitioner, and counsel filed a supplement to the petition for writ of habeas corpus and an appendix of exhibits. We issued an order to show cause, in response to which the Attorney General (Respondent) filed a return. Petitioner filed a traverse, thereby joining the issues for review. In April 2016, we issued our opinion in Cook, supra, G050907, denying the petition for writ of habeas corpus.
The California Supreme Court granted Petitioner‘s petition for review of our opinion and transferred the matter to this court with directions. Following transfer, Petitioner filed a supplemental opening brief. Respondent did not file a supplemental brief. After we issued an opinion, we received a petition for rehearing from Respondent informing us that Respondent had never been served with Petitioner‘s supplemental opening brief and requesting that we accept Respondent‘s supplemental brief. We granted Respondent‘s petition for rehearing and accepted Respondent‘s supplemental brief. Petitioner filed a supplemental responding brief. We have considered the supplemental briefs.
DISCUSSION
I.
In Light of Franklin, Petitioner Is Entitled to a Hearing to Make a Record of Mitigating Evidence Tied to Youth.
We noted in Cook, supra, G050907, it was undisputed that Petitioner‘s sentence of 125 years to life was a de facto sentence of life without the
The California Supreme Court‘s order granting Petitioner‘s petition for review of our opinion transferred the matter to us with directions to vacate our decision and consider, in light of Franklin, supra, 63 Cal.4th 261, “whether [P]etitioner is entitled to make a record before the superior court of ‘mitigating evidence tied to his youth.‘” In Franklin, the defendant was 16 years old when he shot and killed the victim. (Id. at p. 269.) A jury convicted the defendant of first degree murder and found true a personal firearm discharge enhancement. (Id. at p. 268Ibid.) The California Supreme Court concluded that Penal Code sections 3051 and 4801 mooted the defendant‘s claim that the sentence was unconstitutional because “those statutes provide [the defendant] with the possibility of release after 25 years of imprisonment (Pen. Code, § 3051, subd. (b)(3)) and require the Board of Parole Hearings (Board) to ‘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’ (id., § 4801, subd. (c)).” (Franklin, supra, at p. 268.)
The California Supreme Court also concluded, however, that the defendant had raised “colorable concerns” over “whether he was given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth.” (Franklin, supra, 63 Cal.4th at pp. 268-269.) The court explained: “The criteria for parole suitability set forth in
The Supreme Court explained that if, after remand, the trial court were to determine the defendant did not have sufficient opportunity to make a record at sentencing, then “‘the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in [
In this case, Petitioner asserts, “‘the record of [his] characteristics and circumstances at the time of the offense is bare bones at best, with the probation officer‘s report consisting of less than a half page of ‘personal history‘; as opposed to ensuring a full and accurate record, the report noted that the information in that personal history section was ‘not independently verified.’ ”
We agree with Petitioner. In Franklin, supra, 63 Cal.4th at page 284, it was “not clear” whether the defendant “had sufficient opportunity to put on the record the kinds of information that [
Thus, rather than direct the trial court to make the determination whether Petitioner had sufficient opportunity at sentencing to make a record of
II.
Relief Under Franklin Is Available on Habeas Corpus.
Respondent asserts that relief by writ of habeas corpus is unavailable to Petitioner because he is not challenging the legality of his restraint. Respondent argues: “[H]abeas corpus has traditionally been limited to providing a forum for challenges to a custodian‘s legal authority to hold a petitioner in custody or otherwise restrain his liberty or to the manner in which the petitioner is confined. It has not been used as a procedural mechanism for reopening or supplementing otherwise closed proceedings for any less fundamental purpose.” The relief offered by Franklin is, according to Respondent, available only by direct review.
The California Supreme Court‘s order directing us to reconsider the matter in light of Franklin strongly suggests the Supreme Court recognizes that the relief afforded by that opinion is available by habeas corpus. Otherwise, it seems, the Supreme Court would have denied Petitioner‘s petition for review.
In any event, Respondent takes an overly narrow view of the scope of the writ of habeas corpus. A previously convicted defendant may obtain relief by habeas corpus when changes in case law expanding a defendant‘s rights are given retroactive effect. (E.g., In re Cortez (1971) 6 Cal.3d 78, 82-83 [98 Cal.Rptr. 307, 490 P.2d 819] [new California Supreme Court decision justifies habeas corpus relief]; In re Terry (1971) 4 Cal.3d 911, 916 [95 Cal.Rptr. 31, 484 P.2d 1375] [new United States Supreme Court decision justifies habeas corpus relief]; In re Johnson (1970) 3 Cal.3d 404, 407-408, 409-410 [90 Cal.Rptr. 569, 475 P.2d 841] [same].)
In Franklin, supra, 63 Cal.4th at pages 286-287, the California Supreme Court in effect expanded the defendant‘s rights by remanding the matter to the Court of Appeal with instructions to remand to the trial court to determine whether the defendant was afforded an adequate opportunity to make a record of information relevant to a future determination under
As the deprivation of the rights granted by Franklin is cognizable on habeas corpus, we have inherent power to fashion the appropriate remedy (In re Crow (1971) 4 Cal.3d 613, 619-620, fn. 7 [94 Cal.Rptr. 254, 483 P.2d 1206]) with consideration toward factors of justice and equity (In re Harris (1993) 5 Cal.4th 813, 851 [21 Cal.Rptr.2d 373, 855 P.2d 391]). The appropriate remedy, we have concluded, is to remand the matter to the trial court with directions to conduct a hearing at which Petitioner will have the opportunity to make such a record.
Respondent argues that Petitioner should not be afforded habeas corpus relief because, as a practical matter, a hearing conducted 13 years after the commission of the offenses and more than nine years after original sentencing would not be “an efficient or effective way of seeking to augment the existing sentencing record with any further evidence of [Petitioner]‘s particular characteristics as a youthful offender in 2003.” According to Respondent, there is no guarantee the original sentencing judge will be available to conduct the hearing, and the parties likely will have to be represented by new defense counsel or prosecutors who might have no familiarity with the matter.
The issues identified by Respondent are inherent in the remedy afforded by Franklin, whether granted by direct appeal or collateral challenge. We take judicial notice of the Court of Appeal docket in People v. Franklin,1 which shows that nearly four years elapsed from the date the notice of appeal was lodged (June 5, 2012) to the date on which the Supreme Court issued its opinion (May 26, 2016). Thus, when the court in Franklin remanded the matter for a determination whether the defendant had had the opportunity to
As explained in Franklin, supra, 63 Cal.4th at page 269, the criteria for parole suitability in
DISPOSITION
The petition for writ of habeas corpus is granted insofar as it challenges Petitioner‘s sentence of 125 years to life without affording Petitioner the opportunity to make a record of mitigating evidence tied to his youth at the time the offense was committed. The matter is remanded with directions to the trial court to conduct a hearing at which Petitioner has the opportunity to make a record of such mitigating evidence. The hearing must be conducted no later than 90 days from the date this opinion is final in this court.
O‘Leary, P. J., and Thompson, J., concurred.
Respondent‘s petition for review by the Supreme Court was granted April 12, 2017, S240153.