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
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MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF FACTS
This case involves a shooting spree that was placed on Avalon near 87 th 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 17 th 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 87 th 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
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NOTICE OF MOTION AND MOTION TO CONDUCT FRANKLIHEARING AND RESENTENCING PURSUANT
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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.
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NOTICE OF MOTION AND MOTION TO CONDUCT FRANKLIHEARING AND RESENTENCING PURSUANT
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DISCUSSION
I. 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 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. 4 th 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.
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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
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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
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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.
II. 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
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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
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NOTICE OF MOTION AND MOTION TO CONDUCT FRANKLIHEARING AND RESENTENCING PURSUANT
TO SB 620
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