In re Villalobos

Filed 8/16/17 In re Villalobos CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re JOHNNY VILLALOBOS,
on Habeas Corpus.
B279545
(Los Angeles County
Super. Ct. No. MA040107)
ORIGINAL PROCEEDINGS. Petition for writ of habeas
corpus after a judgment of the Superior Court Los Angeles
County, Kathleen Blanchard, Judge. Petition granted.
Laura S. Kelly, for Petitioner and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Shawn McGahey Webb, Supervising Deputy
Attorney General and Rene Judkiewicz, Deputy Attorney
General, for Respondent.
______________________

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In 2010, a jury convicted petitioner Johnny Villalobos of
first degree murder, and found true a special allegation asserting
that he had personally and intentionally discharged a firearm,
causing great bodily injury and death. Villalobos was sentenced
to an aggregate term of 50 years to life in prison.
In October of 2016, Villalobos filed a petition for writ of
habeas corpus requesting a hearing under People v. Franklin
(2016) 63 Cal.4th 261 (Franklin) to make a record of information
relevant to his eventual youth offender parole hearing. (See Pen.
Code, §§ 3051, 4086.) The trial court denied the petition,
concluding it lacked jurisdiction to issue a writ of habeas corpus
because Villalobos had not challenged the legality of his
incarceration.
Villalobos then filed a petition for writ of habeas corpus in
this court seeking an order requiring the trial court to hold a
hearing pursuant to Franklin. We issued an order to show cause,
and now grant the petition.
FACTUAL BACKGROUND
A. Villalobos’s Conviction and Sentencing
In 2007, petitioner Johnny Villalobos, then 18 years old,
shot and killed Juan Valdez during an altercation at a party. On
June 25, 2008, the Los Angeles District Attorney filed an
information charging Villalobos with a single count of murder
(Pen. Code, § 187, subd. (a).)1 The information also included
special allegations asserting he had personally and intentionally
discharged a firearm during the offense, causing great bodily
1 Unless otherwise noted, all further statutory citations are
to the Penal Code.

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injury and death (§ 12022.53, subd. (d)), and that the offense had
been committed for the benefit of a street gang. (§ 186.22, subd.
(b).) The jury convicted Villalobos of first degree murder, and
found both special allegations to be true.
At sentencing, Villalobos did not present any evidence
related to his age at the time of the offense. The court sentenced
Villalobos to an aggregate term of 60 years to life in prison, which
consisted of: (1) a term of 25 years to life in prison for first degree
murder; (2) a consecutive term of 25 years to life in prison for the
firearm enhancement (see § 12022.53, subd. (d)); and (3) an
additional consecutive term of ten years in prison for the gang
enhancement (see § 186.22, subd. (b)(1)(C)).
In 2013, we reversed the gang enhancement for lack of
sufficient evidence, and affirmed the judgment in all other
respects. (People v. Villalobos (Aug. 14, 2013, No. B239739)
[nonpub. opn.].) At his resentencing, which occurred in December
of 2013, the prosecution informed the trial court that it did not
intend to retry the gang allegation. No evidence was presented
at the hearing, and the court sentenced Villalobos to an
aggregate term of 50 years to life in prison, which consisted of a
term of 25 years to life in prison for first degree murder, and a
consecutive term of 25 years to life in prison for the firearm
enhancement (§ 12022.53, subd. (d).) Villalobos filed a second
appeal, and we affirmed the judgment. (People v. Villalobos (Oct.
27, 2014, No. B254393) [nonpub. opn.].)
B. Villalobos’s Petition for Writ of Habeas Corpus
On October 28, 2016, Villalobos filed a petition for writ of
habeas corpus requesting a “hearing under People v. Franklin
(2016) 63 Cal.4th 261 . . . to ‘make a record of “mitigating

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evidence tied to his youth”’” for use at his eventual youth offender
parole hearing. (See §§ 3051, 4086.) Villalobos argued that
because he was not eligible for a youth offender parole hearing at
the time he was sentenced, he “did not have sufficient incentive
or opportunity to present mitigating evidence related to his
youth.” Villalobos also requested that the court appoint counsel
to represent him in the proceedings.
The trial court denied the petition, concluding that it
lacked authority to issue a writ of habeas corpus because
Villalobos had not challenged the legality of his incarceration.
The court did, however, invite Villalobos to “submit whatever
documents he feels will be relevant at his eventual youth offender
parole hearing. . . . [¶] . . . . If petitioner feels that procedure is
insufficient, he may request a further hearing, detailing why
testimony is necessary under the circumstances.”
Villalobos then filed a petition for writ of habeas corpus in
this court requesting that we issue an order compelling the trial
court to: (1) hold “a hearing at which he will be permitted to
make a record of mitigating evidence” tied to his youth; and (2)
appoint counsel to represent him in the proceedings. We issued
an order to show cause.
DISCUSSION
A. Recent Legal Developments Regarding Life
Sentences for Juvenile and Youth Offenders
1. The Eighth Amendment’s prohibition against
mandatory life sentences for juvenile offenders
Shortly after Villalobos’s original sentencing in this matter,
the United States Supreme Court held in Graham v. Florida

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(2010) 560 U.S. 48, 74 (Graham) that the Eighth Amendment
prohibits states from sentencing a juvenile convicted of
nonhomicide offenses to life imprisonment without the possibility
of parole. The Court mandated that juvenile offenders be given
“some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” (Id. at p. 75.)
“Graham’s holding was based on the following [four factors]: (1)
scientific studies showing fundamental differences between the
brains of juveniles and adults; (2) a juvenile’s capacity for change
as he matures, which shows that his crimes are less likely the
result of an inalterably depraved character; (3) the notion that it
is morally misguided to equate a minor’s failings with those of an
adult; and (4) the fact that even though nonhomicide crimes may
have devastating effects, they cannot be compared to murder in
terms of severity and irrevocability.” (People v. Murray (2012)
203 Cal.App.4th 277, 282-283 [citing Graham, supra, 560 U.S. at
pp. 67-70 [disapproved of on other grounds by People v. Gutierrez
(2014) 58 Cal.4th 1354].)
Two years later, in Miller v. Alabama (2012) 567 U.S. 460
(Miller), the Court held that the Eighth Amendment also
precludes states from imposing mandatory sentences of life
without the possibility of parole for homicide offenses on
juveniles. “The Miller court explained that a mandatory life
sentence ‘precludes consideration of [the juvenile’s] chronological
age and its hallmark features―among them, immaturity,
impetuosity, and failure to appreciate risks and consequences.’
[Citation.] Although the Miller court did not prohibit sentencing
juvenile offenders convicted of murder to life imprisonment
without the possibility of parole, it held that sentencing courts
must ‘take into account how children are different, and how those

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differences counsel against irrevocably sentencing them to a
lifetime in prison.’ [Citation.]” (People v. Jones (2017) 7
Cal.App.5th 787, 817 (Jones).)
In People v. Caballero (2012) 55 Cal.4th 262 (Caballero),
the California Supreme Court applied Graham and Miller to a
juvenile offender who had been sentenced to 110 years to life in
prison for nonhomicide offenses. The Court concluded that
“sentencing a juvenile offender for a nonhomicide offense to a
term of years with a parole eligibility date that falls outside the
juvenile offender’s natural life expectancy constitutes cruel and
unusual punishment in violation of the Eighth Amendment.”
(Id. at p. 268.) The Court explained that “[a]lthough proper
authorities may later determine that youths should remain
incarcerated for their natural lives, the state may not deprive
them at sentencing of a meaningful opportunity to demonstrate
their rehabilitation and fitness to reenter society in the future.”
(Ibid.)
In a footnote, the Court “urge[d]” the Legislature to address
the issue by “establishing a parole eligibility mechanism that
provides a defendant serving a de facto life sentence without
possibility of parole for nonhomicide crimes that he or she
committed as a juvenile with the opportunity to obtain release on
a showing of rehabilitation and maturity.” (Caballero, supra, 55
Cal.4th at p. 269, fn. 5.)
2. The Legislature’s adoption of youth offender parole
hearing procedures
In response to Caballero, “the Legislature passed Senate
Bill No. 260, which became effective January 1, 2014, and added
sections 3051, 3046, subdivision (c), and 4801, subdivision (c) to

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the Penal Code.” (Franklin, supra, 63 Cal.4th at pp. 276-277
[“the Legislature passed Senate Bill No. 260 explicitly to bring
juvenile sentencing into conformity with Graham, Miller, and
Caballero”].) The purpose of the act was to “‘establish a parole
eligibility mechanism that provides a person serving a sentence
for crimes that he or she committed as a juvenile the opportunity
to obtain release when he or she has shown that he or she has
been rehabilitated and gained maturity.’ [Citation].” (Franklin,
supra, 63 Cal.4th at p. 277.) When adopted in 2013, the statute
and the associated Penal Code provisions applied only to persons
who were under 18 years of age at the time of their offense. In
2015, however, the Legislature amended each of the Penal Code
provisions to make them applicable to persons who were under 23
years of age at the time of their offense. (Ibid. [citing Stats. 2015,
ch. 471].)
Section 3051, which our Supreme Court has characterized
as “the heart of Senate Bill No. 260,” requires the Board of Parole
Hearings (the Board) to “conduct a ‘youth offender parole hearing’
during the 15th, 20th, or 25th year of a juvenile offender’s
incarceration. [Citation.]. . . . A juvenile offender whose
controlling offense carries a term of 25 years to life or greater is
‘eligible for release on parole by the board during his or her 25th
year of incarceration at a youth offender parole hearing, unless
previously released or entitled to an earlier parole consideration
hearing pursuant to other statutory provisions.” (Franklin,
supra, 63 Cal.4th at p. 277.)
Section 3051, subdivision (f) describes various types of
evidence the Board may consider at a youth offender parole
hearing. Subdivision (f)(1) provides, in relevant part:

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“In assessing growth and maturity, psychological evaluations and
risk assessment instruments, if used by the board, . . . shall take
into consideration the diminished culpability of juveniles as
compared to that of adults, the hallmark features of youth, and
any subsequent growth and increased maturity of the individual.”
Subdivision (f)(2) further provides that “Family members,
friends, school personnel, faith leaders, and representatives from
community-based organizations with knowledge about the
individual before the crime or his or her growth and maturity
since the time of the crime may submit statements for review by
the board.”
Section 4081 further provides that when reviewing the
parole suitability of a prisoner who was under 23 years of age at
the time of the offense, the Board must “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 of the prisoner in accordance with relevant
case law.” (§ 4801, subd. (c).)
3. People v. Franklin
In Franklin, supra, 63 Cal.4th 26, a juvenile offender who
had been convicted of shooting and killing another teenager
argued that his sentence of 50 years to life in prison (comprised of
two mandatory terms of 25 years to life) qualified as a de facto
life sentence in violation of the Eighth Amendment. The Court
held that the defendant’s constitutional challenge to his sentence
had been mooted by the Legislature’s enactment of sections 3051
and 4086, explaining: “[S]ection 3051 has superseded
[defendant’s] sentence so that notwithstanding his original term
of 50 years to life, he is eligible for a ‘youth offender parole

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hearing’ during the 25th year of his sentence. Crucially, the
Legislature’s recent enactment also requires the Board not just to
consider but 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 of the
prisoner in accordance with relevant case law.’ [Citation.] For
those juvenile offenders eligible for youth offender parole
hearings, the provisions of Senate Bill No. 260 are designed to
ensure they will have a meaningful opportunity for release no
more than 25 years into their incarceration.” (Id. at p. 277.)
The Court further held, however, that although the
defendant “need not be resentenced,” it was unclear “whether
[he] had sufficient opportunity to put on the record the kinds of
information that sections 3051 and 4801 deem relevant at a
youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at
p. 284.) The Court explained that “the statutes . . . contemplate
that information regarding the juvenile offender’s characteristics
and circumstances at the time of the offense will be available at a
youth offender parole hearing to facilitate the Board’s
consideration. . . . Assembling such [information] . . . is typically
a task more easily done at or near the time of the juvenile’s
offense rather than decades later when memories have faded,
records may have been lost or destroyed, or family or community
members may have relocated or passed away.” (Id. at pp. 283-
284.)
The Court further explained that because the defendant
had been sentenced before Senate Bill 260 was enacted, “the trial
court understandably saw no relevance to . . . evidence [of youth-
related factors] at sentencing.” (Franklin, supra, 63 Cal.4th at
p. 269.) In light of the “changed legal landscape,” the Court

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concluded the case should be remanded “so that the trial court
may determine whether [the defendant] was afforded sufficient
opportunity to make such a record at sentencing.” (Ibid.) The
Court further directed that if the “the trial court determines that
[the defendant] did not have sufficient opportunity, then the
court may receive submissions and, if appropriate, testimony
. . . . [The defendant] may place on the record any documents,
evaluations, or testimony (subject to cross-examination) that may
be relevant at his eventual youth offender parole hearing, and
the prosecution likewise may put on the record any evidence that
demonstrates the juvenile offender’s culpability or cognitive
maturity, or otherwise bears on the influence of youth-related
factors. The goal of any such proceeding is to provide an
opportunity for the parties to make an accurate record of the
juvenile offender’s characteristics and circumstances at the time
of the offense so that the Board, years later, may properly
discharge its obligation to ‘give great weight to’ youth-related
factors (§ 4801, subd. (c)) in determining whether the offender is
‘fit to rejoin society’ despite having committed a serious crime
‘while he was a child in the eyes of the law’ [Citation.]” (Id. at
p. 284.)
Following Franklin, the Supreme Court transferred several
pending habeas cases raising sentencing claims under Miller and
Caballero to the Courts of Appeal with directions to issue orders
to show cause “why petitioner is not entitled to make a record of
‘mitigating evidence tied to his youth.’ [Citation.]” (In re Bonilla
(Aug. 17, 2016, S214960) 2016 Cal. Lexis 6823; see also in In re
Wilson (Aug. 18, 2016, S235541) [nonpub. order]; In re Alatriste
(Aug. 17, 2016, S214652) [nonpub. order]; In re Heard (Aug. 17,
2016, S216772) [nonpub. order]; In re Gonzalez (Aug. 17, 2016,

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S226480) [nonpub. order]; In re Aguilar, (Aug. 17, 2016, S226995)
[nonpub. order]).
B. Villalobos Is Entitled to a Franklin Hearing
Petitioner Villalobos argues that under the Supreme
Court’s holding in Franklin, he is entitled to a hearing to make a
record of his juvenile characteristics and circumstances at the
time of his offense. He also argues he has the right to have
counsel represent him at those proceedings. The Attorney
General argues we should deny the petition because: (1) a writ of
habeas corpus petition is not a proper legal mechanism to obtain
a Franklin hearing; and (2) the trial court provided Villalobos an
adequate opportunity to make a record of his youth-related
characteristics.
1. A writ of habeas corpus is an appropriate mechanism
to obtain a Franklin hearing
The Attorney General argues that the form of relief
Villalobos seeks in this case, an opportunity to make a record of
information relevant at his eventual youth offender parole
hearing, is not available through a petition for writ of habeas
corpus. The Attorney General contends “habeas corpus is
limited” to cases in which the petitioner is challenging either the
“custodian’s legal authority to hold [him],” or the conditions of his
confinement. According to the Attorney General, because the
remedy Villalobos is seeking here does not fall into either
category, he cannot proceed by way of habeas corpus.
The Attorney General raised this same argument in In re
Cook (2017) 7 Cal.App.5th 393 (Cook), which is now under review
in the Supreme Court (review granted April 12, 2017, No.

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S240153.) The petitioner in Cook initially argued that under
Miller, his sentence of 125 years to life in prison violated the
Eighth Amendment. After the appellate court denied the
petition, the Supreme Court granted review, and held the case
pending its decision in Franklin. Following Franklin, the Court
transferred the case back to the appellate court “with directions
to vacate [the] decision and consider . . . ‘whether petitioner is
entitled to make a record before the superior court of “mitigating
evidence tied to his youth.”’” (Cook, supra, 7 Cal.App.5th at
p. 397.) On remand, the petitioner filed supplemental briefing
requesting a Franklin hearing. The Attorney General opposed,
arguing that “relief by writ of habeas corpus [wa]s unavailable to
[p]etitioner because he [wa]s not challenging the legality of his
restraint.” (Id. at p. 399.)
The appellate court rejected the argument, explaining that
the fact the Supreme Court had transferred the matter with
directions to reconsider the case “in light of Franklin strongly
suggest[ed that] the . . . Court recognize[d] that the relief
afforded by that opinion is available by habeas corpus.” (Cook,
supra, 7 Cal.App.5th at p. 399.) The court further explained that,
“[i]n any event,” the Attorney General’s “view of the scope of the
writ of habeas corpus” was “overly narrow. . . . A previously
convicted defendant may obtain relief by habeas corpus when
changes in case law expand[] a defendant’s rights . . . .
[Citations.] [¶] In Franklin, . . . 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 Penal Code sections 3051 and 4801.

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Franklin thus holds that a defendant has the right at the time of
sentencing to present evidence and make a record of information
that may be relevant at his or her eventual youth offender parole
hearing. [¶] . . . [¶] . . . [T]he deprivation of the rights granted by
Franklin is cognizable on habeas corpus.” (Id. at pp. 399-400)
Although the Supreme Court has now granted review in
Cook, we agree with its conclusion that habeas corpus is a proper
mechanism to obtain the rights afforded in Franklin.2 Contrary
to the Attorney General’s assertions, prior holdings of the
Supreme Court demonstrate that habeas review is not limited to
cases in which the petitioner is directly seeking his release from
confinement, or challenging the conditions of his confinement.
For example, in People v. Tenorio (1970) 3 Cal.3d 89 (Tenorio)
and In re Cortez (1971) 6 Cal.3d 78 (Cortez), the Supreme Court
concluded that habeas relief was available to obtain a hearing on
whether the trial court should exercise its discretion to strike a
prior conviction allegation. In Tenorio, the defendant challenged
a statute that prohibited the trial court “from dismissing prior
convictions without the previous approval of the prosecutor” in
certain categories of narcotics cases. (Cortez, supra, 6 Cal.3d at
p. 82.) The Court concluded the statute violated the California
Constitution’s separation of powers provisions, and further held
that “any prisoner” whose sentence had been augmented by
2 The California Supreme Court’s unofficial statement of
pending issues describes the question presented in Cook as
follows: “Does habeas corpus jurisdiction exist for a petitioner
seeking a post-sentencing hearing to make a record of ‘mitigating
evidence tied to his youth’ [citation] after the conviction is final?”
(Available at
http://www.courts.ca.gov/documents/JUN0217crimpend.pdf> (as
of June 9, 2017).)

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virtue of a prior conviction while the statute was in effect could
“file a habeas corpus petition with the superior court inviting the
exercise of discretion to dismiss the prior conviction. . . . Upon
receipt of such a petition, the sentencing court should follow
normal sentencing procedures and grant appropriate relief
whenever deemed warranted in its discretion.” (Ibid.)
In Cortez, the petitioner filed a petition for writ of habeas
corpus seeking a hearing under Tenorio. Without holding a
hearing or appointing counsel, the trial court issued an order
denying the petition. Although the court acknowledged it had
discretion to strike the prior conviction, it concluded that the
record showed the prior “convictions should not be stricken.”
(Cortez, supra, 6 Cal.3d at p. 89.) Petitioner thereafter filed a
habeas petition in the Supreme Court “claiming that the
sentencing court had denied him his constitutional rights in not
granting him a hearing at which he could be present and be
represented by counsel.” (Id. at p. 83.) The Court agreed,
explaining that “[t]he trial judge’s decision as to whether or not
he should strike a prior narcotics conviction . . . substantially
affects the rights of the defendant, since the proven or admitted
prior . . . increases the period in prison during which release on
parole is forbidden, and greatly lengthens the overall sentence.
Thus, an opportunity to persuade a sentencing judge to exercise
his discretion to strike a prior conviction in the interests of justice
is extremely important to such defendants.” (Id. at pp. 83-84.)
The Court further explained that to effectuate the rights set forth
in Tenorio, any prisoner “who desires an opportunity to invoke
the discretion of the court to dismiss the prior convictions, may
file a petition for writ of habeas corpus with the superior
court. . . .” (Cortez, supra, 6 Cal.3d at p. 88.)

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The form of habeas relief at issue in Cortez (and Tenorio)
did not involve a challenge to the legality of the petitioner’s
confinement or the conditions of that confinement. Rather, the
Court found habeas relief was available to secure a hearing to
present evidence and argument as to why the trial court should
exercise its discretionary authority to strike a prior conviction,
thereby shortening the petitioner’s period of incarceration.
Villalobos seeks similar relief here, requesting a hearing to
present evidence and argument the Board will later consider
when determining whether to exercise its authority to release
him at his eventual youth offender parole hearing, thereby
shortening his period of incarceration. (See Franklin, supra, 63
Cal.4th at p. 284 [“goal” of a Franklin hearing is to allow parties
to make record of youth-related factors that will allow the Board
to properly perform its duties under §§ 3051 and 4801].) We
agree with Cook’s conclusion that a writ of habeas corpus is a
proper mechanism to effectuate the hearing rights established in
Franklin.3
3 The Attorney General also argues that a Franklin hearing
should not be available “by way of a writ of habeas corpus”
because “[s]uch cases are likely to be substantially removed in
time both from the underlying offense and from the trial stage at
which the resources of the parties and courts were fully
marshaled for the purpose of building and testing a factual
record.” The Attorney General posits that holding a hearing
several years after the defendant’s sentencing would not be an
“efficient or effective way of . . . augment[ing] the existing record
with any further evidence of [the] petitioner’s particular
characteristics as a youthful offender. . . .” The same argument
was raised and rejected in Cook, where the petitioner filed his
habeas petition nine years after his original sentencing. The
court explained that such “issues . . . [were] inherent in the

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2. Villalobos is entitled to a Franklin hearing
Having concluded that a Franklin hearing may be obtained
through a habeas petition, we must next determine whether
Villalobos has established that he is entitled to such relief.
The record shows Villalobos did not have a sufficient
opportunity to place on the record the kinds of information
sections 3051 and 4801 deem relevant at a youth offender parole
hearing. At the time of Villalobos’s final sentencing hearing,
those statutes did not apply to him, and the Supreme Court had
not decided Franklin. (See Jones, supra, 7 Cal.App.5th at p. 819.
[“Prior to Franklin, . . . there was no clear indication that a
juvenile’s sentencing hearing would be the primary mechanism
for creating the record of information required for a youth
offender parole hearing 25 years in the future”].) The transcripts
of Villalobos’s sentencing hearings also show his counsel did not
present any evidence or argument regarding the defendant’s age,
cognitive ability or any other youth-related factors during either
remedy afforded by Franklin, whether granted by direct appeal
or collateral challenge,” and that “it would be most effective to
make a record of those youth-related factors as near in time as
possible to the date of original sentencing.” (Cook, supra, 7
Cal.App.5th at p. 401.) We agree with Cook’s analysis. While
holding a Franklin hearing more than six years after Villalobos
was initially sentenced is certainly not ideal, it is better than
waiting until Villalobos’s 25th year of incarceration. (See Jones,
supra, 7 Cal.App.5th at p. 819 [“such a record is better made
close in time to the offense ‘rather than decades later when
memories have faded, records may have been lost or destroyed, or
family or community members may have relocated or passed
away’”] [citing and quoting Franklin, supra, 63 Cal.4th at
p. 284].)

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of his sentencing hearings. Villalobos’s probation report likewise
contains no discussion of any youth-related factors, and states
that the probation officer had identified no “circumstances in
mitigation.”
The Attorney General nonetheless contends there are two
reasons a Franklin hearing is not warranted. First, the Attorney
General argues such a hearing is unnecessary because “the
record contains some evidence of youth-related mitigating
factors.” In support, the Attorney General cites trial testimony in
which Villalobos stated, among other things, that: (1) he had a
“rough childhood”; (2) he had joined a gang because he had no one
in his life to care for him; (3) “gang life” involved a substantial
amount of “party[ing],” including “drinking, doing drugs [and]
smoking”; and (4) he had been drunk at the time he committed
his offense.
This argument is without merit. The criteria relevant to a
parole determination under sections 5031 and 4086 include a
wide array of “youth-related factors, such as his cognitive ability,
character, and social and family background at the time of the
offense.” (Franklin, supra, 63 Cal.4th at p. 269.) In Franklin, the
Court explained that a defendant may “place on the record any
documents, evaluations, or testimony (subject to cross-
examination) that may be relevant at his eventual youth offender
parole hearing,” and that the “goal of any such proceeding is to
provide an opportunity for the parties to make an accurate record
of the juvenile offender’s characteristics and circumstances at the
time of the offense.” (Id. at p. 284.) Villalobos, who was not
eligible for a youth offender parole hearing at the time of his trial
and sentencing, could not have reasonably anticipated the
importance such evidence would play at a future parole hearing.

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The fact that Villalobos made brief references to his childhood
during his trial testimony does not preclude him from
“develop[ing] the type of record contemplated by Franklin.”
(Jones, supra, 7 Cal.App.5th at p. 819.)
The Attorney General also argues “a Franklin hearing is
not warranted” because the superior court “invited [Villalobos] ‘to
submit whatever documents he feels will be relevant at his
eventual youth offender parole hearing.’ [Citation.]” Merely
allowing an incarcerated defendant to submit documentation he
or she believes might be relevant at a future youth offender
parole hearing is far short of the remedy contemplated under
Franklin. Perhaps most notably, the trial court’s proposed
“remedy” does not afford Villalobos the assistance of counsel in
gathering and presenting evidence of his youth-related mitigating
factors.4 The right to counsel “‘applies at all critical stages of a
criminal proceeding in which the substantial rights of a
defendant are at stake’ [citations],” and it is well-settled that “a
sentencing hearing is one such stage.” (People v. Bauer (2012)
212 Cal.App.4th 150, 155; People v. Hall (1990) 218 Cal.App.3d
1102, 1105 [“It is fundamental that the right to counsel applies at
all stages in a criminal proceeding where substantial rights of an
accused may be affected”] [citing Mempa v. Rhay (1967) 389 U.S.
128, 134].) As discussed above, the purpose of the Franklin
hearing is to allow youth offenders to make an “accurate record”
of youth-related mitigating factors so that “the Board, years later,
may properly discharge its obligation to ‘give great weight to’
[such] factors [citation] in determining whether the offender is
fit” for parole. (See Franklin, supra, 63 Cal.4th at p. 284.) Given
4 In his habeas petition, Villalobos specifically requested the
appointment of counsel. The trial court denied the request.

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the critical role a Franklin hearing plays in determining parole
eligibility at a subsequent youth offender parole hearing, we
think it clear that the hearing qualifies as a “critical stage” to
which the right to counsel attaches.5 (Cf. Cortez, supra, 6 Cal.3d.
at p. 87 [“an effective presentation of the merits of the petition [to
strike a prior conviction] depends . . . upon his having the
assistance of counsel to fashion facts and arguments into a
persuasive appeal to the court . . .”].)
In sum, the record shows Villalobos was not provided a
sufficient opportunity to put on the record the kinds of
information that sections 3051 and 4801 deem relevant at a
youth offender parole hearing. We therefore direct the trial court
to conduct a hearing to allow Villalobos to make such a record.6
5 The Attorney General appears to agree with this
conclusion, conceding in its return a Franklin hearing “will . . .
likely require the appointment of counsel.”
6 In Franklin, the Court held that when “it is not clear”
(Franklin, supra, 63 Cal.4th at p. 284) whether the petitioner had
a sufficient opportunity to put on the record the kinds of
information contemplated under sections 3501 and 4806, the
proper remedy is to remand to the trial court with directions to:
(1) make a determination whether the petitioner had such an
opportunity, and (2) if the trial court determines the petitioner
had no such opportunity, it shall then hold an evidentiary
hearing. In this case, however, it is clear that Villalobos did not
have any such opportunity. “Thus, rather than direct the trial
court to make the determination whether Petitioner had
sufficient opportunity at sentencing to make a record of
‘information that will be relevant to the Board as it fulfills its
statutory obligations under [Penal Code] sections 3051 and 4801’
[citation], we will direct the trial court to conduct a hearing at

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20
DISPOSITION
The petition for writ of habeas corpus is granted. The trial
court is directed to conduct a hearing at which petitioner will be
given the opportunity to make a record of mitigating evidence
tied to his youth at the time the offense was committed.
Petitioner shall be appointed counsel to represent him in such
proceedings.
ZELON, J.
We concur:
PERLUSS, P. J.
MENETREZ, J.
which Petitioner will have the opportunity to make such a
record.” (Cook, supra, 7 Cal.App.5th at pp. 398-399.)
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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