opening brief and requesting that we supplemental brief. We accept Respondent’s granted petition for rehearing and accepted Respondent’s supplemental Respondent’s brief. Petitioner filed a supplemental responding brief. We have considered the supplemental briefs. DISCUSSION I. In Light of Petitioner Is Entitled to a Hearing to Franklin, Make a Record of Mitigating Evidence Tied to Youth. We noted in G050907, it was undisputed that Cook, supra, Petitioner’s sentence of 125 years to life was a de facto sentence of life without the possibility of parole and that, when sentencing Petitioner, the trial court did not consider his age, youthful attributes, and capacity for reform and rehabilitation. We concluded that Miller applies retroactively to matters on collateral review. (Montgomery v. Louisiana, supra, 577 U.S. __ [136 S.Ct. 718].) As a consequence, we concluded, sentence Petitioner’s was unconstitutional under 567 U.S. at page __ [132 S.Ct. at page 2460] Miller, supra, and (2012) 55 Cal.4th 262. (Cook, G050907.) But we were People v. Caballero supra, compelled by 577 U.S. __ [136 S.Ct. 718], to conclude Montgomery v. Louisiana, supra, that Penal Code section 3051 cured the constitutional error in sentencing by giving Petitioner the right to a parole hearing after serving 25 years of his sentence. (Cook, G050907.) supra, The California Supreme order granting petition for Court’s Petitioner’s review of our opinion transferred the matter to us with directions to vacate our decision and consider, in light of 63 Cal.4th [P]etitioner is entitled Franklin, supra, 261, “whether to make a record before the superior court of evidence tied to his In ‘mitigating youth.’” the defendant was 16 years old when he shot and killed the victim. (Id. at Franklin, p. 269.) A jury convicted the defendant of first degree murder and found true a personal firearmdischarge enhancement. (Id. at p. 268.) The defendant was sentenced to two
opening brief and requesting that we accept Respondent’s supplemental brief. We granted Respondent’s petition for rehearing and accepted Respondent’s supplemental brief. Petitioner filed a supplemental responding brief. We have considered the supplemental briefs. DISCUSSION I. In Light of Franklin, Petitioner Is Entitled to a Hearing to Make a Record of Mitigating Evidence Tied to Youth. We noted in Cook, supra, G050907, it was undisputed that Petitioner’s sentence of 125 years to life was a de facto sentence of life without the possibility of parole and that, when sentencing Petitioner, the trial court did not consider his age, youthful attributes, and capacity for reform and rehabilitation. We concluded that Miller applies retroactively to matters on collateral review. (Montgomery v. Louisiana, supra, 577 U.S. __ [136 S.Ct. 718].) As a consequence, we concluded, Petitioner’s sentence was unconstitutional under Miller, supra, 567 U.S. at page __ [132 S.Ct. at page 2460] and People v. Caballero (2012) 55 Cal.4th 262. (Cook, supra, G050907.) But we were compelled by Montgomery v. Louisiana, supra, 577 U.S. __ [136 S.Ct. 718], to conclude that Penal Code section 3051 cured the constitutional error in sentencing by giving Petitioner the right to a parole hearing after serving 25 years of his sentence. (Cook, supra, G050907.) The California Supreme Court’s order granting Petitioner’s petition for review of our opinion transferred the matter to us with directions to vacate our decision and consider, in light of Franklin, supra, 63 Cal.4th 261, “whether [P]etitioner is entitled to make a record before the superior court of ‘mitigating evidence tied to his youth.’” In Franklin, the defendant was 16 years old when he shot and killed the victim. (Id. at p. 269.) A jury convicted the defendant of first degree murder and found true a personal firearmdischarge enhancement. (Id. at p. 268.) The defendant was sentenced to two
G050907.DOCX