People v. Flores CA4/2

Opinion

Filed 9/14/26 P. v. Flores CA4/2 See dissenting opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E084536 v. (Super.Ct.No. RIF093387)

JOSE GUADALUPE FLORES, JR., OPINION Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molly and David A. Gunn, Judges. Reversed with directions.

Ariana D’Agostino, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Heather B. Arambarri, Steve Oetting and Paige Boulton Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

1 I. INTRODUCTION In 2001, defendant and appellant Jose Guadalupe Flores, Jr., was convicted of two counts of premeditated murder (Pen. Code,1 §§ 187, 190.2, subd. (a)) and two counts of attempted premeditated murder (§§ 187, 664). In 2022, defendant filed a Franklin2 motion seeking to make a record of mitigating youth-related evidence as well as to assert an equal protection challenge to the denial of his eligibility for parole. The trial court appointed counsel for defendant and set the matter for a hearing to determine whether defendant was actually entitled to an evidence preservation proceeding.3 Appointed counsel subsequently submitted a request to be relieved as counsel.

The request was heard by a different judge of the superior court who granted the request to be relieved and ordered that the hearing on defendant’s Franklin motion be taken off calendar.4 Defendant was not present at this hearing, and the record does not show that defendant was ever given notice of his appointed counsel’s request.

Defendant appeals, arguing (1) his appointed counsel rendered ineffective assistance in violation of the Sixth Amendment to the United States Constitution; (2) the trial court’s decision to relieve counsel was an abuse of discretion because the manner in 1 Undesignated statutory references are to the Penal Code.

2 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).

3 Judge Molloy presided over the initial proceedings appointing counsel for defendant. 4 Judge Gunn presided over the motion to relieve counsel subject of this appeal.

2 which the trial court proceeded violated defendant’s right to due process; and (3) the trial court’s decision to “deny” his Franklin motion also violated defendant’s due process rights. We conclude the trial court abused its discretion when it relieved appointed counsel without giving defendant notice or an opportunity to be heard. We further conclude that the error was structural in nature, requiring per se reversal because the prejudicial impact of the error cannot be quantitatively assessed where the error itself prevented defendant from developing a record in the trial court. Given this conclusion, it is unnecessary to address defendant’s remaining arguments in this appeal.

II. BACKGROUND

In 2001, defendant was convicted of two counts of premeditated murder with special circumstances (§§ 187, 190.2, subd. (a); counts 1 & 2) and two counts of attempted premeditated murder (§§ 187, 664; counts 3 & 4). The record on appeal does not disclose the evidence or factual basis upon which defendant was convicted. He was sentenced to state prison for two consecutive terms of life without the possibility of parole for counts 1 and 2, as well as two consecutive terms of life with the possibility of parole for counts 3 and 4.5 In August 2022,6 defendant submitted a Franklin motion seeking to make a record 5 Defendant was also sentenced to an additional determinate term of 24 years in state prison as the result of true findings on special allegations pursuant to sections 12022.5, subdivision (a), and 12022.7, subdivision (b). 6 The Franklin motion was received by the trial court in August 2022 but was not formally filed until October 4, 2022.

3 of mitigating youth-related evidence. The motion alleged that (1) defendant was 20 years old at the time of the crimes for which he was convicted; (2) defendant sought to challenge his sentence of life without the possibility of parole on the basis that his sentence denied him equal protection under the United States Constitution; (3) defendant sought to challenge his sentence of life without the possibility of parole on the basis that it violated the prohibition against cruel or unusual punishment under the California constitution; and (4) defendant was entitled to bring the motion under the authority of Franklin, Cook,7 and section 1203.01. Finally, defendant’s motion requested appointment of counsel.

On March 15, 2024,8 the trial court appointed counsel to represent defendant and set a hearing on defendant’s Franklin motion for the purpose of determining whether defendant was entitled to a full evidence preservation hearing. In doing so, the trial court expressly explained: “I don’t have a problem. It appears, at least on its face, [defendant]

was 20 years old at the time,” which means “he would fit within the provisions of Franklin.”

7 In re Cook (2019) 7 Cal.5th 439 (Cook).

8 The record suggests that the trial court took no action on defendant’s Franklin motion for a significant period of time due to an administrative error by the superior court clerk’s office. The existence of the Franklin motion was brought to the attention of the trial court by the public defender during a hearing on a separately filed petition for resentencing. In response, the trial court reviewed the Franklin motion, appointed counsel, and set the motion for a further hearing. The record does not disclose the reasons for the trial court’s decision to appoint someone other than the public defender to represent defendant with respect to the Franklin motion.

4 On August 8, 2024, defendant’s appointed counsel filed a request (1) to be relieved as counsel and (2) for defendant’s Franklin motion to be taken off calendar. The only reason given for the request was a conclusory statement by counsel that defendant was not entitled to any relief, accompanied by a citation to People v. Hardin (2024)

15 Cal.5th 834 (Hardin). The request was not accompanied by a written consent by defendant to substitute counsel; was not accompanied by a declaration stating that counsel had discussed the request with defendant; and was not accompanied by a proof of service indicating that defendant received a copy of the request.

On August 9, 2024, the trial court held a hearing on appointed counsel’s request to be relieved. This hearing was conducted by a different judge than the judge who previously appointed counsel and set a hearing on defendant’s Franklin motion.

Defendant was not present for the hearing. The second judge stated: “[Appointed counsel] had filed a request to be relieved and to take the Franklin motion off calendar with the belief that [defendant] is just not entitled to do this hearing. So I’m not going to make an order with respect to relief at this point. I’ll grant the request to relieve [appointed counsel] and take the Franklin motion off calendar.” The subsequent minute order states the trial court relieved appointed counsel and then, on its own motion, took the hearing for defendant’s Franklin motion off calendar. Defendant appeals from the order entered August 9, 2024.

III. DISCUSSION

On appeal, defendant argues: (1) his appointed counsel rendered ineffective assistance in violation of the Sixth Amendment to the United States Constitution; (2) the 5 trial court’s decision to relieve counsel was an abuse of discretion because the manner in which the trial court proceeded violated defendant’s right to due process; and (3) the trial court’s decision to “deny” his Franklin motion also violated defendant’s due process rights. As we explain, we need not address all of these arguments because we conclude the trial court’s decision to grant appointed counsel’s request to be relieved constituted an abuse of discretion and the error was structural in nature requiring reversal and remand for further proceedings.

A. Legal Background “Section 3051 offers youth offenders committed for long prison terms an opportunity for early release on parole. It requires the Board of Parole Hearings . . . to conduct a youth offender parole eligibility hearing to determine if, based on certain criteria involving the ‘ “[c]ontrolling offense,” ’ the offender is eligible for parole. . . .

The hearing must ‘provide for a meaningful opportunity to obtain release’ [citation], and includes an assessment of the offender’s ‘growth and maturity’ that ‘take[s] into consideration the diminished culpability of youth as compared to that of adults [and] the hallmark features of youth.’ ” (People v. Williams (2024) 17 Cal.5th 99, 113.) Given these factors, the California Supreme Court held in Franklin that “when a juvenile offender receives an indeterminate life sentence, the offender must be ‘given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth.’ ”

(People v. Medrano (2019) 40 Cal.App.5th 961, 967; Franklin, supra, 63 Cal.4th at p. 269.)

In Cook, the California Supreme Court “extended the availability of a Franklin 6 hearing to a juvenile offender whose conviction and sentence have become final.

Specifically, it held that ‘an offender entitled to a [youth offender parole] hearing . . . may seek the remedy of a Franklin proceeding even though the offender’s sentence is otherwise final.’ ” (People v. Ngo (2023) 89 Cal.App.5th 116, 127; Cook, supra, 7 Cal.5th at p. 451.) To initiate such a proceeding, an offender should file a motion requesting a hearing under the authority of section 1203.01. (Ngo, at p. 127; People v. Howard (2021) 74 Cal.App.5th 141, 150.)

“The framework of a Franklin motion is set forth in Cook. ‘[T]he proper avenue [to request a Franklin proceeding] is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and [Cook]. 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.’ [Citation.] Nothing in Cook indicates the motion must describe with precision the evidence the offender seeks to introduce. . . . [T]here are no mandatory pleading requirements for a Franklin motion, and the required showing to initiate the process for a Franklin proceeding is minimal: ‘[d]ue to the limited resources generally available to inmates, the Cook court reasonably envisioned a simple pleading mechanism to get the process started.’ ” (Howard, supra, 74 Cal.App.5th at p. 150; People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896.)

However, “[a] legally sufficient Franklin motion does not automatically guarantee a defendant the right to do so. Rather, such a motion only initiates the process for a Franklin proceeding. Based solely on the motion, the trial court may immediately find a 7 Franklin proceeding is warranted. . . . [T]he trial court may also ‘ “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.” 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.’ [Citation.] After allowing a defendant an opportunity of this nature, the court may deny further proceedings if it finds they are unlikely ‘to produce fruitful evidence.’ ” (Howard, supra, 74 Cal.App.5th at p. 152;

Cook, supra, 7 Cal.5th at p. 459.)

California courts have subsequently held that a Franklin motion may also be used to raise a challenge to section 3051’s limitations on the availability of youth offender parole hearings on equal protection grounds. (People v. Sands (2021) 70 Cal.App.5th 193, 201-202; People v. Briscoe (2024) 105 Cal.App.5th 479, 486-489; Hardin, supra, 15 Cal.5th at p. 840.) While the California Supreme Court has concluded that section 3051’s “exclusion of offenders who are serving sentences of life in prison without the possibility of parole for a crime committed after the age of 18 from youth offender parole eligibility” is not facially unconstitutional, it expressly left the door open to the potential validity of challenges to other exclusions set forth in section 3051 as well as “as-applied challenges based on particular special circumstances or the factual circumstances of individual cases.” (Hardin, at p. 864.)

8 B. The Trial Court Abused Its Discretion in Relieving Appointed Counsel On appeal, defendant argues the trial court abused its discretion and violated his right to due process by relieving counsel and failing to appoint new counsel. Generally, “[a] trial court’s removal of appointed counsel for an indigent defendant is reviewed for abuse of discretion.” (People v. Mungia (2008) 44 Cal.4th 1101, 1119; People v. Cole (2004) 33 Cal.4th 1158, 1190; People v. Wright (2021) 12 Cal.5th 419, 440.) As we explain, we agree that the trial court’s order granting appointed counsel’s request to be relieved constituted an abuse of discretion.

1. Defendant Had a Due Process Right To Notice and an Opportunity To Be Heard Generally, both the United States Constitution and California Constitution guarantee a basic right of due process (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15), and “ ‘[t]he fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner” ’ ” (People v. Allen (2008) 44 Cal.4th 843, 869). “[T]he Supreme Court has held that a prisoner may derive a due process liberty interest from either the Constitution or state law. [Citation.] When the asserted interest is derived exclusively from state law, it will be recognized as within the scope of due process liberty if the state statute protects the interest by permitting its forfeiture only on the happening of specified conditions.” (People v. Ramirez (1979) 25 Cal.3d 260, 265.)

Generally, “[h]aving undertaken the defense of a criminal case an attorney must continue with his services until he is released by the client or by the court. He may apply 9 to the court for release from further services and for good cause shown may be released, but he may not abandon his representation at will . . . .” (People v. Prince (1968)

268 Cal.App.2d 398, 406.) In light of this principle, “it [is] established that the procedural requirements of sections 284 and 285 of the Code of Civil Procedure govern a change of attorney in a criminal, as well as in a civil, proceeding.” (Prince, at p. 404, fn. omitted; Smith v. Superior Court of Los Angeles County (1968) 68 Cal.2d 547, 558- 559 [“The sole statutory authority for the removal of counsel is Code of Civil Procedure section 284. That statute is applicable in criminal cases . . . .”]; In re Martinez (1959)

52 Cal.2d 808, 813; People v. Bouchard (1957) 49 Cal.2d 438, 440.)9 These statutes specify that in order to withdraw from representation, an attorney must either obtain the consent of the client or bring a formal application in the trial court with notice to the client. (Code Civ. Proc., §§ 284, 285.) The legislative purpose of these provisions is “to provide certain safeguards” to “protect [the] accused.” (People v. Kerfoot (1960)

184 Cal.App.2d 622, 636.)

Here, the trial court granted appointed counsel’s request to be relieved without complying with the statutory safeguards intended to afford defendant notice and an opportunity to be heard. The trial court conducted a hearing and granted the request the 9 Generally, “only those parts of the Code of Civil Procedure which are expressly made applicable to penal actions are incorporated in the Penal Code.” (Smith v. Superior Court (1981) 115 Cal.App.3d 285, 291; Gonzales v. Superior Court of Los Angeles (1935) 3 Cal.2d 260.) However, the Penal Code expressly provides that a defendant in a criminal action is entitled “to be allowed counsel as in civil actions . . . .” (§ 686, italics added.)

10 day after it was filed. There is nothing in the record to show that defendant received any notice of appointed counsel’s request to be relieved. Nor was defendant present at the hearing. Such a procedure clearly violated defendant’s right to due process. (Kerfoot, supra, 184 Cal.App.2d at p. 636 [“Adequacy of notice is an element of due process of law. . . . [T]here is no due process of law in the complete absence of any notice.”];

People v. Williams (2021) 65 Cal.App.5th 828, 833 [Due process requires notice and an opportunity to be heard even where statutory procedures are unclear.].) And an order made in violation of a party’s due process right to notice and an opportunity to be heard constitutes an abuse of discretion. (People v. Johnson (1984) 157 Cal.App.3d Supp. 1, 5.)

2. The Second Judge Could Not Reconsider Anew Defendant’s Right to Counsel On appeal, the People argue that the trial court did not abuse its discretion relieving appointed counsel because defendant had no underlying right to counsel until he established a prima facie case of entitlement to relief. We question whether a defendant should be required to make a prima facie showing before being afforded the right to counsel when bringing a Franklin motion,10 and the People have not cited any published 10 As we have explained, Franklin held that a juvenile offender has a right to make a record of youth-related mitigating evidence at the time of sentencing. (Franklin, supra, 63 Cal.4th at p. 269.) And sentencing is a critical stage of a criminal prosecution in which the constitutional right to counsel attaches. (People v. Doolin (2009) 45 Cal.4th 390, 453.) The motion procedure used in this case was intended to extend the right recognized in Franklin to offenders with final judgments who did not have an opportunity to exercise such right at the time of sentencing. (Cook, supra, 7 Cal.5th at 11 decision that has directly addressed the point. Nevertheless, we need not decide the issue here. Even assuming, without deciding, that a trial court has authority to summarily deny a Franklin motion without the appointment of counsel based upon the failure to make a prima facie showing, relieving counsel on this basis would have constituted an impermissible reconsideration given the procedural context of this case.

It is well established that “[a] trial judge ordinarily may reconsider his or her own ‘ “prejudgment” ’ rulings. . . . There are limits, however, on the authority of one superior court judge to set aside the order of another judge of the same court. ‘[U]nder article VI, section 4, of the California Constitution, “one [judge or] department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another [judge or]

department of the superior court.” ’ [Citation.] This rule prevents a trial court judge from acting as a ‘ “one-judge appellate court” over another judge.’ ” (People v. Waldon (2023) 14 Cal.5th 288, 306.) This is true even if the first judge committed legal error in ruling on the matter. (In re Alberto (2002) 102 Cal.App.4th 421, 426-431 [second judge could not reconsider bail set by first judge even if first judge failed to correctly apply statutes in setting bail].) The rule also bars a second judge from reconsidering another judge’s discretionary appointment of counsel. (See People v. Goodwillie (2007)

147 Cal.App.4th 695, 712-713 [trial judge erred by relieving advisory counsel previously appointed by another judge].)

p. 451.) Moreover, the Franklin hearing is designed to elicit information to be used at a future parole hearing affecting a defendant’s sentence.

12 Here, the order relieving counsel was made by a different judge than the one who previously appointed counsel and set the Franklin motion for a hearing. The record shows that the first judge reviewed defendant’s Franklin motion and, based upon that review, appointed counsel and set the matter for a hearing. Thus, the question of whether defendant had established a prima facie showing sufficient to entitle him to appointment of counsel was already considered and decided by the first judge. Even if that determination was erroneous, the second judge could not relieve counsel by purportedly reviewing the sufficiency of defendant’s prima facie showing anew and determining that it was inadequate to warrant appointment of counsel. Doing so would have constituted an impermissible reconsideration.

To be clear, a motion to be relieved may be heard by a judge other than the one who initially appointed counsel. However, the motion must be determined on its own merits based upon the showing and arguments presented in conjunction with that request.

We hold only that the People’s argument that there can be no abuse of discretion because the right to counsel never attached in the first instance is not a proper basis to affirm the order in this case.

3. The Failure To Appoint New Counsel Requires Reversal Defendant argues that the trial court’s error in relieving counsel and failing to appoint new counsel is reversible per se because it denied him the right to counsel at a critical stage in the proceedings. The People contend that, even if erroneous, the order relieving counsel and failure to appoint new counsel should be treated as state law error subject to the harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818, 13 which instructs a reviewing court to ask whether there is a reasonable probability of an outcome more favorable to defendant in the absence of error. (Ibid.) Upon consideration of the matter, we conclude that the deprivation of counsel under the specific circumstances of this case requires reversal.

Initially, we address the People’s contention that we can find the error harmless because defendant is categorically barred from relief in light of Hardin. The respondent’s brief does not develop this argument, asserting only in a conclusory manner that we are bound to follow Hardin. In Hardin, the Supreme Court rejected a facial challenge to the constitutionality of section 3051’s categorical denial of youth offender parole eligibility based upon age. (Hardin, supra, 15 Cal.5th at p. 840.) However, in doing so, our Supreme Court expressly left open the question of whether a defendant may bring a meritorious “as-applied challeng[e] based on particular special circumstances or the factual circumstances of individual cases.” (Id. at p. 864.) And at least one published decision since Hardin has found such a challenge meritorious despite the fact the defendant was statutorily ineligible for a section 3051 hearing because he was sentenced to life without parole for a murder committed when he was over the age of 18 years old.

(See Briscoe, supra, 105 Cal.App.5th at pp. 486, 490-495.) Thus, Hardin is not authority for the proposition that we can categorically deem all claims brought by persons who are statutorily ineligible for a youth offender parole eligibility hearing without merit even 14 without an examination of the basis and nature of the claim asserted.11 In our view, the error in this case is more akin to structural error requiring reversal. “ ‘Typically, a defendant who has established error under state law must demonstrate there is a reasonable probability that in the absence of the error he or she would have obtained a more favorable result. [Citations.] . . . [H]owever, “under the California constitutional harmless-error provision some errors . . . are not susceptible to the ‘ordinary’ or ‘generally applicable’ harmless-error analysis. . . .” “[T]he kinds of errors that, regardless of the evidence, may result in a ‘miscarriage of justice’ because they operate to deny a criminal defendant the constitutionally required ‘orderly legal procedure’ . . . all involve fundamental ‘structural defects’ in the judicial proceedings . . . .” ’ ” (People v. Anzalone (2013) 56 Cal.4th 545, 553.) Most errors “ ‘are amenable to harmless error review because they can be “quantitatively assessed in the context of other evidence presented. . . .” “Structural defects,” on the other hand, “defy analysis by ‘harmless-error’ standards” . . . because they are not “simply an error in the trial process,”

but rather an error “affecting the framework within which the trial proceeds” ’ . . . . ‘A 11 To hold otherwise would appear to produce an anomalous result. As we have already explained, California courts have held that a Franklin motion is an appropriate means to raise an equal protection challenge to section 3051’s categorical limitations on the availability of youth offender parole eligibility hearings. (Sands, supra, 70 Cal.App.5th at pp. 201-202; Briscoe, supra, 105 Cal.App.5th at pp. 486-489; Hardin, supra, 15 Cal.5th at p. 840.) If, as the People contend, statutory ineligibility is sufficient grounds for a trial court to summarily deny a Franklin motion without appointment of counsel or further inquiry, it is unclear how a defendant would ever be able to develop and support any of the more specific challenges envisioned in Hardin.

15 structural error requires per se reversal because it cannot be fairly determined how a trial would have been resolved if the grave error had not occurred.’ ” (People v. Lewis (2025)

111 Cal.App.5th 1078, 1111.)

Here, the error was the failure to give defendant notice and an opportunity to be heard. This affected the framework within which appointed counsel’s request to be relieved proceeded and prevents us from fairly determining how the request would have been resolved had defendant been given notice and an opportunity to respond.

The sole basis for appointed counsel’s request to be relieved was the conclusory statement that defendant was not entitled to relief under Hardin. It is true that “counsel is [not] compelled to make a motion which, in counsel’s good faith opinion, is frivolous or when to do so would compromise accepted ethical standards.” (People v. Brown (1986)

179 Cal.App.3d 207, 216.) However, when appointed counsel refuses to bring a motion sought by defendant, “the trial court should hold a hearing, attempt to determine the basis of the conflict and decide, in its discretion, whether substitute counsel should be appointed to represent the defendant.” (Brown, supra, 179 Cal.App.3d at p. 216.) As we have already explained, Hardin does not stand for the proposition that persons who are statutorily ineligible for youth offender parole hearings are categorically barred from seeking any relief by way of a Franklin motion. Thus, the conclusory assertion by appointed counsel is inadequate to show that defendant’s Franklin motion would have indeed been frivolous or that proceeding with the motion would compromise accepted ethical standards. And the record is inadequate, not because defendant failed to present his case in the trial court, but specifically because the trial court’s error in ruling on the 16 motion without giving defendant notice or an opportunity to be heard deprived defendant of the opportunity to make a record in the first instance.

We acknowledge that the issue normally arises in a different procedural context.

It is typically the defendant who initiates such a review by seeking to discharge or substitute counsel when such disagreements arise. (See People v. Marsden (1970)

2 Cal.3d 118.) In that context, our Supreme Court has explained that “[a] judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention ‘is lacking in all the attributes of a judicial determination.’ ”

(Id. at p. 124.) But the principle is equally applicable here. If a trial court cannot presume that a defendant’s contentions are unmeritorious and must give the defendant an opportunity to present argument and evidence when the defendant raises the prospect of a disagreement with appointed counsel, the trial court should not be able to make that same presumption against a defendant merely because the disagreement is first raised by appointed counsel.

The denial of notice and an opportunity to respond deprived defendant of the opportunity to make a record regarding his appointed counsel’s request to be relieved.

Had defendant been given the opportunity to respond, he may well have made an offer of proof to clarify the basis of his Franklin motion, consented to the request to be relieved but requested appointment of substitute counsel, or indicated a desire to proceed with the hearing on his Franklin motion in pro per. Any one of these possibilities would influence an analysis of prejudice with respect to the order relieving counsel. Because we cannot fairly assess what the outcome might have been in the absence of error, reversal of the 17 order relieving counsel is required.

C. It Is Unnecessary for Us To Reach the Merits of Defendant’s Remaining Contentions Given our conclusion that the order relieving appointed counsel must be reversed, it is unnecessary for us to address defendant’s remaining claims in this appeal. Upon remand, the trial court will have the opportunity to reconsider appointed counsel’s request to be relieved after giving defendant an opportunity to respond.

Thus, with respect to defendant’s claim that appointed counsel’s representation was ineffective or inadequate, defendant will have the opportunity to raise that claim with the trial court in response to counsel’s request to be relieved. (People v. Smith (1993)

6 Cal.4th 684, 695 [“[J]ustice is expedited when the issue of counsel’s effectiveness can be resolved promptly at the trial level.”].) If defendant chooses to raise those issues in the trial court upon remand, there are well-established procedures for the trial court to follow in order to evaluate and resolve that claim.12 With respect to defendant’s contention that the trial court erred by denying his Franklin motion without a hearing, we observe that the record shows the trial court did not deny defendant’s Franklin motion but appears to have taken the motion “off calendar.” There is no indication that the trial court denied the motion on the merits.13 12 See generally People v. Marsden, supra, 2 Cal.3d 118.

13 In taking the motion off calendar, the trial court expressly contemplated the possibility it may be reset for a hearing on a future date, stating: “I’ll grant the request to relieve [appointed counsel] and take the Franklin motion off calendar. I suppose if there’s another petition that had to be considered, they will put that back on calendar.”

18 Thus, once the issue of defendant’s representation is resolved upon remand, defendant (either through reinstated counsel, substitute counsel or in pro per) may request that his Franklin motion be placed back on the calendar for a hearing.

Finally, with respect to defendant’s arguments intended to “preserv[e] for federal review” his equal protection claims, defendant will now have an opportunity to make a record in the trial court proceedings such that the merits of his claims can be evaluated in the normal appellate process.

IV. DISPOSITION

The order relieving defendant’s appointed counsel is reversed. Upon remand, the trial court shall issue an order reinstating counsel and set the request for a formal, noticed hearing in which defendant is given notice and an opportunity to respond. To the extent defendant maintains upon remand that appointed counsel’s representation is inadequate or ineffective, the trial court is directed to consider any such claim under the principles set forth in People v. Marsden, supra, 2 Cal.3d 118. The trial court is further directed to set a new hearing for defendant’s Franklin motion if the defendant requests such relief upon remand.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. I concur:

CODRINGTON Acting P. J.

19 [People v. Flores, E084536]

MENETREZ, J., dissenting.

In my view, the alleged error in relieving counsel without prior notice to defendant Jose Guadalupe Flores, Jr., is not structural and is harmless under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24 [federal constitutional error is reversible unless it was harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 837 [state law error is reversible if it is reasonably probable that the defendant would have obtained a more favorable result without the error].)

The only pending proceeding as to Flores was his request for a hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin). But Flores is ineligible for such a hearing, because he is serving a sentence of life without the possibility of parole and is consequently ineligible for youth offender parole under Penal Code section 3051. (See People v. Hardin (2024) 15 Cal.5th 834, 838-840 (Hardin).)

Flores points out that although the categorical exclusion of defendants serving life without parole does not facially violate equal protection (Hardin, supra, 15 Cal.5th at pp. 838-840), as-applied equal protection challenges are still possible (id. at p. 864;

People v. Briscoe (2024) 105 Cal.App.5th 479, 484-485). But Flores has never explained how he might be able to present a colorable as-applied challenge. He was sentenced to life without parole because the multiple-murder special-circumstance allegation was found true, and the allegation was found true because he was convicted of two murders— he shot the two victims dead because he thought that a member of their group had insulted him.

1 Flores has not attempted to show that exclusion from youth offender parole of defendants serving life without parole for the multiple-murder special circumstance is unconstitutional as applied to him. In the absence of such a showing, I see no way that the alleged error in relieving counsel could have been prejudicial. Sending this case back to the trial court with directions to reappoint counsel will lead to the same conclusion that the trial court already reached: Flores’s request for a Franklin hearing will be denied, and the matter will be taken off calendar.

For the foregoing reasons, I respectfully dissent.

MENETREZ J.