If a Williams man hopes to get out of prison before most of his life has passed, he will have to convince the court and a parole board that his age at the time of his offense affected his actions.
A Franklin hearing has been set for Aug. 28 for Jose Kelly Munoz, now 38, who has served 12 years in California State Prison, Sacramento, for seriously injuring his cousin, Luis Lopez-Magana, then 20, in a drive-by shooting on Gail Avenue, in Arbuckle, in August of 2007.
Investigators believed Munoz had intended to shoot the man next to Lopez-Magana, James Scott Dowden, of Arbuckle, who was 22 at the time, in what was thought to be possible retaliation.
A Colusa County jury convicted Jose Kelly Munoz of attempted murder, assault with a deadly weapon, and shooting at a person from a vehicle. He received a 25 year-to-life sentence just on the special allegation, to be served consecutive to the seven-year sentence for attempted murder, which under 2016 California justice reform could be reevaluated by the court if Munoz’s defense did not present mitigating factors such as age, upbringing, and other considerations at his sentencing hearing.
Munoz testified at trial that the shooting was an accident, and that the rifle – which was never recovered – got tangled in the car door and fired unintentionally when he was preparing to show the gun to the two young men.
Lopez-Magana underwent extensive surgery at University of California Medical Center, in Davis, and survived the incident. Dowden was not injured.
Munoz’s original attorney, Roberto Marquez, said after the trial that the jury did not give Munoz a fair shake, and that as a young Hispanic male, Munoz was automatically labeled a gang member.
Retired Colusa County Superior Court Judge William S. Abel, who presided over the original trial, has agreed to preside over the Franklin hearing.
Judge Jeffrey A. Thompson has set Aug. 12 for hearing confirmation.
Public Defender Albert Smith has been appointed to defend Munoz’s request to have his case reviewed. Under new California laws, Munoz is eligible for a parole suitability hearing as a youthful offender because he committed his offense while under the age of 26.
If granted, Munoz could go before the parole board in the 15th year of incarceration.
He is currently eligible for parole in 2031.
Smith said in court on July 8 that it is possible he might not be ready by Aug. 28 due to COVID-19 restrictions making it difficult for anyone to see his client in person.
Franklin hearings, when granted, typically require expert testimony from forensic psychologists, social workers, and investigators who can present evidence that impulse control and good judgment, especially in males, are not fully developed in the brain until the age of 26, and that age at the time of offense should be given consideration at future parole hearings of defendants who received life or very long determinant sentences.■