People v. Romero CA2/5 ( 2021 )

Filed 1/11/21 P. v. Romero CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305900
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. VA115049-03)
v.
DANIEL ROMERO,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael A. Cowell, Judge. Dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________________
Defendant and appellant Daniel Romero appeals the
trial court’s order denying his petition for habeas corpus in
the Superior Court.
In an amended information filed on July 15, 2011
against Romero and two co-defendants, Romero was charged
with second degree robbery (Pen. Code, § 211 [count 2]),1
attempted murder (§§ 187, subd. (a), 664 [count 3]), and
kidnapping to commit another crime (§ 209, subd. (b)(1)
[count 4]). It was alleged as to all three counts that Romero
committed the offenses for the benefit of, at the direction of,
or in association with a criminal street gang. (§ 186.22,
subd. (b)(1)(C).) With respect to count 4, it was further
alleged that the offense was punishable by a life sentence in
state prison. (§ 186.22, subd. (b)(5).)
On November 3, 2011, Romero pleaded no contest to
second degree robbery (§ 211) and the gang allegation
(§ 186.22, subd. (b)(1)(C)). He was sentenced to the high
term of 5 years in state prison, plus 10 years for the
enhancement, for a total determinate sentence of 15 years.
On April 19, 2019, Romero petitioned for habeas corpus
in the Superior Court. In his petition, Romero requested a
hearing pursuant to People v. Franklin (2016) 63 Cal.4th
261, at which he could present evidence of youth-related
factors relevant to his parole determination. In a minute
order dated January 16, 2020, the trial court summarily
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
denied the petition on the basis that Romero was ineligible.
Romero timely appealed.
We appointed counsel. After reviewing the record,
counsel filed an opening brief pursuant to People v. Serrano
(2012) 211 Cal.App.4th 496, stating that he found no
arguable issues to raise on appeal, and had informed Romero
of his right to file a supplemental brief on his own behalf.
On September 16, 2020, we advised Romero that he had 30
days to submit any contentions or issues he wished us to
consider. Romero filed a supplemental brief on October 5,
2020. The supplemental brief did not raise any arguments
relevant to the issues raised in the habeas petition.
A defendant may not appeal denial of a petition for
writ of habeas corpus. (People v. Gallardo (2000) 77
Cal.App.4th 971, 986.) Accordingly, we will dismiss the
appeal. We note that, although the appropriate vehicle by
which to request a Franklin proceeding was unclear at the
time Romero filed his habeas petition, our Supreme Court
has subsequently held that a defendant whose conviction is
final may request an evidence preservation proceeding
pursuant to Franklin by filing a motion in the Superior
Court under section 1203.01.2 (In re Cook (2019) 7 Cal.5th
2 In Cook, the Supreme Court did not address whether
“the writ of habeas corpus is expansive enough to afford
Cook the relief he seeks. Cook has a plain, speedy, and
adequate remedy at law that makes resort to habeas corpus
unnecessary, at least in the first instance. [Citations.]”
(Cook, supra, 7 Cal.5th at p. 452.)
3
439, 458 (Cook). The Supreme Court has advised that “the
proper avenue is to file a motion in superior court under the
original caption and case number, citing the authority of
section 1203.01 and [the Cook] decision. The motion should
establish the inmate’s entitlement to a youth offender parole
hearing and indicate when such hearing is anticipated to
take place, or if one or more hearings have already
occurred.” (Ibid.)
The appeal is dismissed.
MOOR, J.
We concur:
RUBIN, P. J.
BAKER, J.
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