People v. Ward CA1/5

Filed 11/18/21 P. v. Ward CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for pur- poses of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A162002 v. MARCUS WARD, (Alameda County Super. Ct. No. Defendant and Appellant. HC170099B2)

Appellant Marcus Ward was 21 years old when he fatally shot the pimp of an acquaintance while trying to rob him. Among other things, he was convicted of first-degree murder with a special circumstance for committing the murder while engaged in the commission of a robbery and was sentenced to prison for life without the possibility of parole (LWOP). (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(A).)1 Appellant filed a petition for habeas corpus requesting an evidence preservation hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin) to develop the record in anticipation of a youthful parole offender hearing under section 3051. The court construed the writ as a motion under

Further references are to the Penal Code unless otherwise 1

indicated. 1

section 1203.01 and denied the motion because as an adult offender sentenced to LWOP, appellant was not eligible for a youthful parole hearing. We affirm. “In response to a series of decisions addressing Eighth Amendment limits on juvenile sentencing (see, e.g., Miller v. Alabama (2012) 567 U.S. 460[]; Graham v. Florida (2010) 560 U.S. 48, 75[]), the Legislature enacted section 3051. (Sen. Bill No. 260 (2013–2014 Reg. Sess.), Stats. 2013, ch. 312, §§ 1, 4; In re Trejo (2017) 10 Cal.App.5th 972, 980–981[].) In its current form, the statute provides an opportunity for release (via youth offender parole hearings) to most persons convicted of crimes committed before the age of 26 in their 15th, 20th, or 25th year of incarceration, depending on the sentence imposed for their ‘ “[c]ontrolling offense.” ’ (§ 3051, subds. (a)(2)(B); see id., subd. (b)(1)–(4).).” (People v. Sands (2021) 70 Cal.App.5th 193, 197–198 (Sands).) Section 3051 carves out an exception for offenders who are over 18 years of age at the time of their offense, who are either sentenced to LWOP or are convicted under the One Strike or Three Strikes laws, and makes such offenders ineligible for a youthful parole hearing. (§ 3051, subd. (h).) In In re Cook (2019) 7 Cal.5th 439 (Cook), the Supreme Court held that an evidence preservation hearing of the type envisioned by Franklin, supra, 63 Cal.4th at p. 284 was available for offenders who were eligible for youthful parole hearings under section 3051. (Cook, supra, at p. 458–459.) Appellant does not dispute that as a person sentenced to LWOP who was over 18 when he committed his offense, under section 3051 he is