In re Howerton

Filed 1/30/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re F076546

KEVIN HOWERTON, (Kern Super. Ct. No. HC015497A)

On Habeas Corpus. OPINION

APPEAL from an order granting petition for writ of habeas corpus. Michael E. Dellostritto, Judge. Xavier Becerra, Attorney General, Phillip J. Lindsay, Assistant Attorney General, Amanda J. Murray and Krista L. Pollard, Deputy Attorneys General, for Appellant. Tracy Lum, under appointment by the Court of Appeal, for Respondent. -ooOoo- Respondent Kevin Howerton sought and was granted a writ of habeas corpus ordering his immediate release from prison and granting credits against his mandated parole term. The grounds for relief turned on the trial court’s interpretation of Penal Code section 3051.1 The People filed the present appeal, contending the trial court wrongly found section 3051 applicable because Howerton had already been granted parole on his indeterminate-term youth offense. For the reasons set forth below, we

1 All future references are to the Penal Code.

reverse the trial court’s order and remand with instructions to vacate the order granting the petition for writ of habeas corpus and enter a new order denying the petition. FACTUAL AND PROCEDURAL BACKGROUND The facts relevant to this case are not in dispute. In 1991, Howerton was convicted of a second degree murder he committed in 1990, when he was 19 years old.2 He was sentenced to an indeterminate term of 15 years to life. Pursuant to section 3000.1, Howerton is subject to a lifetime period of parole with the exception that he must be discharged from parole after five years absent a finding of good cause to retain him on parole. (§ 3000.1, subd. (b).) In February 2000 and again in August 2002, while serving his second degree murder sentence, Howerton was convicted of possession of a weapon by an inmate. These convictions resulted in what was effectively an additional 10-year consecutive sentence. In July 2014, Howerton was granted parole on the second degree murder sentence. Consistent with the law at that time, Howerton then began serving, and continues to serve, his 10-year consecutive sentence for the weapons convictions. On January 1, 2016, amendments to section 3051 became effective that, if applicable, rendered Howerton eligible for a youth offender parole hearing on his second degree murder conviction. Subsequent case law, including but not limited to, In re Trejo (2017) 10 Cal.App.5th 972 (Trejo), held that youth offenders granted parole under