ANTHONY DEANDRE MOORE IN PRO SE
(Insert Address)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
| ANTHONY DEANDRE MOORE
Petitioner, vs. THE PEOPLE OF THE STATE OF CALIFORNIIA Respondent, |
Case No.: TA057551
NOTICE OF MOTION AND MOTION TO CONDUCT FRANKLIN HEARING AND RESENTENCING PURSUANT TO SB 620 Date: Time: Dept.: |
TO THE ABOVE-ENTITLED COURT AND TO THE DISTRICT ATTORNEY OF LOS ANGELES, STATE OF CALIFORNIA AND ALL PARTIES PLEASE TAKE NOTICE that on ________, in Department ______ at ______, or as soon thereafter as the matter may be heard, the Petitioner will move the court to conduct a franklin hearing and resentencing pursuant to SB 620.
This motion will be based on the attached memorandum of points and authorities, the preliminary hearing transcript, and on argument at the hearing on this motion.
Dated: Respectfully submitted,
___________________________
ANTHONY DEANDRE MOORE IN PRO SE
MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF FACTS
This case involves a shooting spree that was placed on Avalon near 87th place involving the Petitioner, a minor at the time and the complainants through the Respondent herein.
The facts according to the prosecution are that on June 17th September, 2000, at around 11 a.m., Manuel Martinez was driving Alvaro Lopez and his sons Jose and Wilfredo Lopez who were heading to their family bakery located at Avalon and Vernon. As they were driving on Avalon near 87th Place, Martinez, Jose and Wilfredo noticed two black men walking on the sidewalk approximately 25 feet away. They were the only two people walking on the sidewalk at the time.
One of the young men, the appellant’s companion, threw a piece of cake of cake at the car which Martinez was driving, and hit the hood and windshield of the car, causing him to veer to the left in a bid to try and avoid what had been thrown at him and almost hit a van. The petitioner and his companion then ran inside the gate of some nearby apartments.
Angered by the actions of the two young men, Martinez put his car in reverse and went back to ask the two young men why they had thrown cake at his car, which could have easily caused an accident. Martinez and the Lopezes got out of the car but remained outside the gate. Martinez inquired from the two young men why they had thrown cake at his car to which they insulted them and informed them that they were on their turf.
In anger, Jose picked a piece of metal that was lying on the ground and threw it over the fence at the two men. One of the young men threw it back to Jose and his companions. The petitioner then said he will be right back and ran to the apartments. After 30 seconds or so after the petitioner left, Martinez and the Lopezes were getting back in the car ready to leave when the Petitioner returned from the apartments with a gun pointed at Martinez and the Lopezes and began shooting. When the Petitioner first began shooting, he was on the other side of the fence.
At this time, Martinez was sitting in the driver’s seat of his car with one leg outside waiting for Jose to get in while Jose was almost at the front of the car. Wilfredo was in the backseat of the car behind the front passenger seat. Alvaro was getting in the front passenger seat. He had one foot inside the car and was trying to close the door.
When the shooting began, Martinez got out of the car and took cover by the driver’s side front tire. Jose dove on the ground in front of the car and Wilfredo lay down on the back seat. Martinez could feel some bullets go by him. They were unarmed and therefore unable to do anything about the situation. They heard approximately 8 to 10 shots. After the shooting, the petitioner ran away.
Alvaro was bleeding from his face and was still sitting in the passenger seat. He had sustained gunshots to the temple, cheat and leg; and died at the scene. Following leads from residents, police sought Moore, the Petitioner who was wanted on a warrant. Upon seeing the police, the Petitioner attempted to run but the police chased and apprehended him.
DISCUSSION
- PETITIONER REQUESTS A FRANKLIN HEARING PER AB1308 YOUTH OFFENDER
The United States Supreme Court held that the Eighth Amendment to the Federal Constitution prohibits a mandatory life without parole (LWOP) sentence for a juvenile offender who commits homicide. (Miller v. Alabama (2012) 567 U.S. 460, 481 (Miller).) Shortly thereafter, it was held in People v. Caballero (2012) 55 Cal.4th 262 (Caballero) that the prohibition on life without parole sentences for all juvenile non homicide offenders established in Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825, 130 S.Ct. 2011] (Graham) applied to sentences that were the “functional equivalent of a life without parole sentence,” including Caballero’s term of 110 years to life. (Caballero, at p. 268.)
In People v Tyris Lamar Franklin (2016) 63 Cal. 4th 261, Franklin challenged the constitutionality of his 50-year-to-life sentence under these authorities. Franklin’s constitutional claim has been mooted by the passage of Senate Bill No. 260 (2013–2014 Reg. Sess.) (Senate Bill No. 260), he raised colorable concerns as to whether he was given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth.
The criteria for parole suitability set forth in Penal Code sections 3051 and 4801 contemplate that the Board’s decision making at Franklin’s eventual parole hearing would be informed by youth-related factors, such as his cognitive ability, character, and social and family background at the time of the offense. Because Franklin was sentenced before the high court decided Miller and before Legislature enacted Senate Bill No. 260, the trial court understandably saw no relevance to mitigation evidence at sentencing. In light of the changed legal landscape, the court remanded this case and allowed the trial court to determine whether Franklin was afforded sufficient opportunity to make such a record at sentencing.
The Eighth Amendment prohibition on cruel and unusual punishment “guarantees individuals the right not to be subjected to excessive sanctions.” (Roper v. Simmons (2005) 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (Roper ); see Robinson v. California (1962) 370 U.S. 660- 667).
This prohibition encompasses the “foundational principle” that the “imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” (Miller, supra, 567 U.S. at p. 470, 132 S.Ct. at p. 2466.) From this principle, the High Court has derived a number of limitations on juvenile sentencing:
(1) no individual may be executed for an offense committed when he or she was a juvenile (Roper, at p. 578, 125 S.Ct. 1183)
(2) no juvenile who commits a nonhomicide offense may be sentenced to LWOP (Graham, supra, 560 U.S. at p. 74, 130 S.Ct. 2011); and
(3) no juvenile who commits a homicide offense may be automatically sentenced to LWOP (Miller, at p 472, 132 S.Ct. at p. 2460).
Miller addressed two cases, each of which involved a 14–year–old offender tried as an adult, convicted of murder, and sentenced to LWOP under a state law that did not allow the sentencing authority to impose a less severe punishment. In prohibiting such mandatory LWOP sentences, the high court in Miller affirmed and amplified its observations in Graham and Roper that children are “constitutionally different … for purposes of sentencing” for several reasons based “not only on common sense—on what ‘any parent knows’—but on science and social science as well.”
The Court further held that “The science and social science supporting Roper’s and Graham’s conclusions have become even stronger. “First, children have a lack of maturity and an underdeveloped sense of responsibility leading to recklessness, impulsivity, and heedless risk-taking…. Second, children are more vulnerable to negative influences and outside pressures,’ including from their family and peers; they have limited control over their own environment’ and lack the ability to extricate themselves from horrific, crime-producing settings…. And third, a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievable depravity. The court’s sentiments fit the facts of the instant case
In Franklin, it was held that a juvenile offender’s Eighth Amendment challenge to his 50-years-to-life sentence was rendered moot by the enactment of Senate Bill No. 260 (2013–2014 Reg. Sess.) (Senate Bill No. 260), which created youth offender parole hearings and made Franklin eligible for such a hearing during his 25th year of incarceration. (Franklin, supra, 63Cal.4th at p. 280, 202 Cal.Rptr.3d 496, 370 P.3d 1053; see §§ 3051, subd. (b)(3), 4801, subd. (c).) Because the Board of Parole Hearings had not yet crafted regulations applicable to youth offender parole hearings when Franklin, was decided, it did not opine on “whether and, if so, how existing suitability criteria, parole hearing procedures, or other practices must be revised to conform to the dictates of applicable statutory and constitutional law.” (Franklin, at p. 286.)
In the instant case, the Petitioner was only 14 years of age when he committed the offence. He was sentenced to 50 years to life, plus life, plus life, plus life. He was not given a chance to present youthful mitigating factors for a future parole and was in fact tried in an adult court notwithstanding his minority, which is in itself prejudicial. Thus, he petitions this Honorable Court to allow the recalling of the case to put forth mitigating factors.
Legislation supports this Petition under AB 1308 which amends Section 3051 of the Penal Code which allows the eligibility for release on parole if the person convicted committed the offence when the person was 25 years of age or younger at the time of the offence.
AB-1308 also amended penal code Section 4801, section 4801 (c) under 3051(a), such that the board reviewing prisoners suitability for parole pursuant to 3041.5, shall 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 prisoner in accord with case law.
Petitioner has been incarcerated since 2005. Based on the provisions of AB 1308 and the amendments to the Penal Code thereon, he is entitled to a Franklin Hearing to present mitigating factors to be considered by the board in the event of a future parole hearing.
It is evident, Petitioner had no opportunity to make a record of information. Without prejudice, if the Petitioner is not allowed a franklin hearing, we urge the court to accord the petitioner an opportunity to present documents that would aid his case in a parole hearing.
The statutory right of a juvenile under penal code section 3051 and 4801 creates a defense by youth factors and mitigating factors that can only be accomplished by a hearing to record such facts, to support a decision of suitability, in such nature as created liberty interest, 14th amendment.
The Petitioner satisfies the requirements of seeking a Franklin hearing, He committed the offence when he was 14 years of age and therefore is within the ambit of 26 years as statutorily set out. He did not get a chance to make a record of his youthful factors and he was sentenced to a long determinate sentence.
The Petitioner now requests a Franklin Hearing.
- PETITIONER SEEKS SENTENCE MODIFICATION UNDER SB-620.
SB 620 was signed into law and took effect on January 1, 2018. (People v. Mathews (2018) 21 Cal.App.5th 130, 132, 229 Cal.Rptr.3d 879.) That Bill amended Penal Code sections 12022.5 and 12022.53, which set forth firearm enhancements, so that the court may now, in its discretion, strike the enhancements in the interests of justice. (Pen. Code, §§ 12022.5, subd. (c), 12022.53, subd. (h).) The Estrada rule of retroactivity applies to SB 620 and therefore, the case should be remanded to the trial court to exercise its discretion in deciding whether to strike the firearm enhancements.
The court may then resentence the Petitioner in accordance with its discretion under SB 620. If, at the transfer hearing, the juvenile court determines that it would not have transferred defendant to a court of criminal jurisdiction, the defendant’s criminal convictions and enhancements will be deemed juvenile adjudications as of the date of the verdict. The juvenile court shall exercise its discretion pursuant to SB 620 in deciding whether to strike the firearm enhancements and thereafter conduct a dispositional hearing within its usual timeframe.
CONCLUSION
It is respectfully requested that the courts request and order for Franklin Hearing and modify sentencing and strike enhancements of petitioner.
Dated: Respectfully submitted,
___________________________
ANTHONY DEANDRE MOORE IN PRO SE
PROOF OF SERVICE
I, ANTHONY DEANDRE MOORE, IN PRO SE
On served the foregoing document(s) described as:
NOTICE OF MOTION AND MOTION TO CONDUCT FRANKLIN HEARING AND RESENTENCING PURSUANT TO SB 620
[ ] BY FACIMILE: by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m.
[XX] BY MAIL: I am readily familiar with the firm’s practice of collection and processing of correspondence for mailing with the United States Postal Service and said correspondence is deposited with the United States Postal Service the same day.
Attorney
District Attorneys Office
211 West Temple Street Suite 1200
Los Angeles, CA 90012
[ ] BY OVERNIGHT MAIL: by causing the document(s) listed above to be picked up by an overnight delivery service company for delivery to the addressee(s) set forth below on the next business day.
[ ] BY ELECTRONIC SERVICE: by electronically serving via email the document(s) listed above to the email address(es) set forth below on this date before 5:00 p.m.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on April ……, 2020 , at ………………, California.
____________________________________
ANTHONY DEANDRE MOORE , IN PRO SE
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