Filed 12/30/19 P. v. Valdivia CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREW VALDIVIA,

Defendant and Appellant.

D075792

(Super. Ct. No. FVA801582-2)

APPEAL from a postjudgment order of the Superior Court of San Bernardino County, Ingrid A. Uhler, Judge. Affirmed.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

Andrew Valdivia appeals from a postjudgment proceeding where he sought to make a record of youth-related mitigating factors, pursuant to People v. Franklin (2016) 63 Cal.4th 261, 284 (Franklin), for use in a future youth offender parole hearing. Valdivia contends the trial court abused its discretion in denying his request for a continuance so that he could call witnesses to testify at the Franklin hearing. We conclude the court did not abuse its discretion and accordingly affirm the court’s order.

BACKGROUND

Valdivia was convicted by jury of two counts of premeditated attempted murder and two counts of assault with a firearm. The jury also found true allegations that he personally discharged a firearm causing great bodily injury and that the crimes were committed for the benefit of a criminal street gang. In 2011, this court affirmed the judgment but ordered the correction of certain sentencing errors, which reduced Valdivia’s total prison sentence from 85 years to life to 75 years to life. (People v. Valdivia (Aug. 12, 2011, D057386) [nonpub. opn.].)

In 2016, Franklin was decided. Franklin authorizes a postjudgment proceeding to give the parties ” ‘an opportunity . . . to make an accurate record of the juvenile offender’s characteristics and circumstances at the time of the offense so that the Board [of Parole Hearings], years later, may properly discharge its obligation to “give great weight to” youth-related factors ([Pen. Code, ]§ 4801, subd. (c)) in determining whether the offender is “fit to rejoin society”. . . .’ ” (In re Cook (2019) 7 Cal.5th 439, 449 (Cook), quoting Franklin, supra, 63 Cal.4th at p. 284.)

In July 2018, Valdivia filed a “petition to modify sentence and to dismiss illegal enhancements” (capitalization and punctuation omitted). Of relevance here, within his petition Valdivia noted that he was 19 years old when he committed the offenses and requested that the California Department of Corrections and Rehabilitation (CDCR) conduct a youth offender parole hearing.

The court, apparently construing Valdivia’s petition as a request for a Franklin proceeding, scheduled a hearing in early January 2019. On January 10, 2019, Valdivia’s counsel filed a “Franklin Statement in Mitigation” (Franklin statement). The Franklin statement contained arguments relating to the immaturity and diminished culpability of youth in general. Additionally, the statement recounted Valdivia’s troubled juvenile history, both at home and at school; his psychological background; his drug use; and other events that led him to join a gang and engage in criminal activities. Finally, Valdivia’s Franklin statement set forth his current activities in prison.

In response, the People filed a brief arguing that Valdivia had failed to establish his “eligibility for a Franklin hearing.” The People further argued that even if Valdivia was entitled to make a record of youth-related factors, irrelevant information should be stricken from his statement, i.e., information unrelated to his characteristics and circumstances at the time of the offenses.

The Franklin hearing was continued several times and ultimately occurred on March 29, 2019, with Valdivia present and represented by counsel. At the hearing, the court granted Valdivia’s request to have the Franklin statement transmitted to the CDCR, except for the last paragraph of the statement that related to Valdivia’s current prison activities. Valdivia’s counsel then orally requested a “brief continuance” because Valdivia had indicated that he “wishes that [counsel] would call some witnesses on the Franklin issue[.]” The court denied the request, noting that “there seems to be sufficient information for the [CDCR] to be considered [sic]. No additional testimony would be necessary based on what you outlined in the Franklin statement in mitigation. I assume it would be the same witnesses testifying to the same thing.” Valdivia’s counsel confirmed that the witnesses would be the same, and the court reiterated its decision to deny the request for continuance.

This appeal followed.

DISCUSSION

Valdivia contends the trial court abused its discretion in denying his request to continue the Franklin hearing so that he could call witnesses. He argues that the denial of his request constituted a violation of due process. We disagree.

At a Franklin proceeding, ” ‘the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [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.’ ” (Cook, supra, 7 Cal.5th at pp. 449-450, quoting Franklin, supra, 63 Cal.4th at p. 284.)

“Although Franklin mandates an opportunity for evidence preservation, the trial court may ‘exercise its discretion to conduct this process efficiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rules, statutes, and regulations.’ [Citation.] The court may, for example, require an offer of proof regarding the evidence the offender seeks to present, so that it can determine whether such evidence is relevant to youth-related factors and meaningfully adds to the already available record. It may also determine whether testimony is ‘appropriate’ [citation], or if other types of evidentiary submissions will suffice.” (Cook, supra, 7 Cal.5th at p. 459.)

A party must establish good cause for a continuance in a criminal case. (§ 1050, subd. (e); People v. Riggs (2008) 44 Cal.4th 248, 296.) The moving party is required to file and serve written notice of a motion for continuance at least two court days before the scheduled hearing, “together with affidavits or declarations detailing specific facts showing that a continuance is necessary[,]” unless the party demonstrates good cause for failing to comply with the notice requirement. (§ 1050, subds. (b) & (c); People v. Henderson (2004) 115 Cal.App.4th 922, 933.) Trial courts have broad discretion to grant or deny continuances. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 508 (Mora and Rangel).) We review the trial court’s denial of a continuance request under the abuse of discretion standard of review. (Ibid.) “[D]iscretion is abused only when the court exceeds the bounds of reason, all circumstances being considered.” (People v. Beames (2007) 40 Cal.4th 907, 920.)

Applying the foregoing principles, we conclude the court did not abuse its discretion in denying Valdivia’s oral request for a continuance. Valdivia failed to establish good cause to continue the hearing or to dispense with the written notice requirement. The stated basis for Valdivia’s continuance request was to present live witnesses, but he made no attempt to establish that “he exercised due diligence in securing [a] witness’s presence, that the expected testimony was material, noncumulative, and could be secured within a reasonable period of time, and that the facts to which the witness was expected to testify could not otherwise be proven.” (Mora and Rangel, supra, 5 Cal.5th at p. 509.) He had ample time—approximately eight months—after filing his petition and before the March 2019 hearing, to secure witnesses or to explain his efforts thus far and why he needed more time.

Valdivia argues on appeal that his trial counsel only learned on the day of the hearing that Valdivia wished to have witnesses present, which “explains the omission of a written continuance request.” While this circumstance may explain the lack of written notice, it also speaks to an inexcusable lack of diligence considering the length of time since the petition was filed and the numerous prior continuances of the hearing. Neither Valdivia nor his counsel provided any explanation why Valdivia could not have earlier communicated his desire for live witnesses.

Furthermore, based on the trial court’s comments and counsel’s agreement, the court did consider the need for live testimony and reasonably decided that any contemplated witnesses would present cumulative information, i.e., they would testify to the “same thing[s]” already contained in Valdivia’s Franklin statement. The trial court did not abuse its discretion in making an implied finding that the Franklin statement allowed Valdivia to make an adequate record in accordance with our Supreme Court’s directions for conducting Franklin proceedings. (Cook, supra, 7 Cal.5th at p. 459 [trial court has discretion to conduct the Franklin process efficiently].) In short, Valdivia had a reasonable opportunity to assemble and present relevant information for his hearing. If Valdivia had noncumulative information to present that was not already in the record, and that would be relevant to his eventual youth offender parole hearing, it was incumbent on him to say so. The court acted well within its discretion in denying Valdivia’s continuance request.

DISPOSITION

The order is affirmed.

GUERRERO, J.

WE CONCUR:

HALLER, Acting P. J.

O’ROURKE, J.