People v. Gomez CA6

Filed 3/10/21 P. v. Gomez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, H048066 (Monterey County Plaintiff and Respondent, Super. Ct. No. CR13746B)

v.

HOMERO GOMEZ,

Defendant and Appellant.

I. INTRODUCTION In 1988, defendant was found guilty of second degree murder with the personal use of a firearm (Pen. Code, §§ 187, 12022.5)1 and escape (§ 4532, subd. (b)) and in violation of the terms of his probation. The trial court sentenced defendant to 17 years to life consecutive to three years eight months. Defendant was 20 years old when he committed the murder. In 2013, section 3051 was enacted to provide “a youth offender parole hearing” for eligible youth offenders. (See Stats. 2013, ch. 312, § 4.) The California Supreme Court subsequently held in People v. Franklin (2016) 63 Cal.4th 261, 284 (Franklin) that an eligible youth offender shall have an opportunity to “make a record of information relevant to his [or her] eventual youth offender parole hearing.”

1 All further statutory references are to the Penal Code unless otherwise indicated.

In 2019, defendant filed a petition for writ of habeas corpus in this court requesting a Franklin hearing. This court denied the petition “without prejudice to [defendant] filing a motion for a Franklin hearing in the court in which he was convicted.” Defendant filed a motion for a Franklin hearing in the trial court. After appointing defendant counsel and receiving written opposition from the prosecution, the court denied the motion, finding that defendant was not entitled to a Franklin hearing. The parties agree that the trial court erred when it denied defendant’s motion for a Franklin hearing, and we concur. Because defendant is entitled to youth offender parole hearings under section 3051, he is eligible for Franklin’s evidence preservation process. (See In re Cook (2019) 7 Cal.5th 439 (Cook).) Accordingly, we will reverse the order and remand the matter for Franklin proceedings consistent with Cook. II. PROCEDURAL BACKGROUND2 In 1988, defendant was charged by information with murder (§ 187) committed on or about May 21, 1988. The information also alleged that defendant personally used a firearm in the commission of the offense (§ 12022.5). Defendant was born in April 1968. After a court trial, the court found defendant guilty of second degree murder with the personal use of a firearm. The court also found defendant guilty of escape (§ 4532, subd. (b)), as charged in a separate case, and in violation of probation. The court sentenced defendant to 17 years to life for murder and the personal use of a firearm plus a consecutive three years eight months for escape and the probation violation. Defendant received his first parole suitability hearing in 2006, where parole was denied for four years. In 2011, defendant stipulated to parole unsuitability for three years; in 2014, defendant voluntarily waived his right to a parole hearing for two years. 2 We do not provide a factual summary of defendant’s controlling offense because the facts are not part of the record on appeal and are not relevant to the issue presented.