Petitioner, who committed homicide offenses when he was a minor, is entitled to a Franklin hearing to make a record of mitigating evidence tied to his youth. Cook’s convictions for first degree murder, attempted premeditated murder, and personal use of a gun, were affirmed in 2009. By petition for writ of habeas corpus, Cook, who was 17 years old when he committed the offenses, claimed his sentence of 125 years to life was cruel and unusual punishment. The superior court denied the petition. The Court of Appeal found Cook’s de facto LWOP term unconstitutional under Miller v. Alabama (2012) 132 S.Ct. 2455, but felt compelled by Montgomery v. Alabama (2016) 136 S.Ct. 718, to find that recently enacted statutes (Pen. Code, §§ 3051, 4801), cured the constitutional error in sentencing by giving Cook the right to a parole hearing after serving 25 years of his sentence. The California Supreme Court granted review and transferred the matter to the Court of Appeal to vacate its decision and consider whether Cook is entitled to make a record in the superior court of mitigating evidence tied to his youth (citing People v. Franklin (2016) 63 Cal.4th 261). Held: Petition granted in part. In Franklin, the defendant was 16 years old when he killed the victim. The California Supreme Court held that Penal Code sections 3051 and 4801 mooted the defendant’s claim his sentence was unconstitutional because they afforded the possibility of release after 25 years of imprisonment. However, the Franklin court remanded the case for a determination of whether the defendant had been given an adequate opportunity to make a record of mitigating evidence tied to his youth. In Cook’s case, it is clear that he was not given a sufficient opportunity to introduce youth-related mitigating evidence in the trial court. The trial court is therefore directed “to conduct a hearing at which Petitioner will have the opportunity to make such a record.”

Relief under Franklin is available on habeas corpus. The Attorney General argued that relief by writ of habeas corpus is unavailable to Cook because he is not challenging the legality of his restraint. Respondent argued the relief afforded by Franklin is available only on direct review. In its order the California Supreme Court directed the Court of Appeal to reconsider the case in light of Franklin, strongly suggesting that the relief afforded by that opinion is available by habeas corpus. Further, “a previously convicted defendant may obtain relief by habeas corpus when changes in case law expanding a defendant’s rights are given retroactive effect.” Changes in case law are customarily retroactive except “when a judicial opinion changes a settled rule on which the parties had relied.” Franklin did not change any settled rule on which the parties here relied and nothing in that case suggests the California Supreme Court intended it to be excepted from the rule of retroactivity. Thus the deprivation of the rights granted by Franklin is cognizable on habeas corpus.

A Franklin hearing is required despite the passing of 13 years since petitioner committed his offenses. Respondent argued that Cook should not be granted habeas relief because a hearing conducted more than nine years after Cook’s initial sentencing would not be an efficient way of augmenting the present sentencing record with any further evidence regarding Cook’s characteristics as a youthful offender in 2003. However, the Supreme Court granted relief in Franklin despite the fact that four years had elapsed since the notice of appeal was filed. While it would be preferable to make a record of youth-related mitigating factors such as a defendant’s cognitive ability, character, and social and family background at or near the time of original sentencing, nine years after original sentencing is better than the 15th, 20th or 25th year of incarceration, which are the possible times for a youth offender parole hearing (Pen. Code, § 3051, subds. (b)(1), (2) & (3)).

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G050907.PDF