Opinion
A165985
08-21-2023
THE PEOPLE, Plaintiff and Respondent, v. JAMES ALLEN CLARK, Defendant and Appellant.
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. No. SCR145821)
Petrou, J.
Defendant James Allen Clark was 22 years old at the time he murdered two women during a burglary and robbery of a residence. A jury found him guilty of several felonies, including two counts of first-degree murder with special circumstances (multiple murders during commission of robbery and burglary), and he was sentenced to two consecutive terms of life without the possibility of parole (LWOP), together with a consecutive term of one year on a related deadly weapon enhancement. The court's sentencing order noted that consecutive LWOP terms were warranted "because of the particular viciousness of the crimes and the vulnerability of one of the victims."
Thirty-three years later, on May 27, 2022, Clark filed a Penal Codesection 1203.01 postjudgment motion seeking a Franklin/Cook proceeding to preserve evidence for a future youth offender parole hearing. (People v. Franklin (2016) 63 Cal.4th 261, 269 (Franklin); In re Cook (2019) 7 Cal.5th 439, 452 (Cook) [cases holding that youth offender parole hearings require a record of mitigating evidence tied to the defendant's youth, and a sentenced prisoner may seek an evidence preservation proceeding via a motion under the authority of section 1203.01, known as a Franklin/Cook proceeding].)
All further statutory references are to the Penal Code.
Clark conceded section 3051, subdivision (h) (§3051(h)) made him ineligible for a youth offender parole hearing but contended the statute's exclusion of young adult LWOP offenders violated equal protection principles and prohibitions against cruel and/or unusual punishment under the federal and state Constitutions. The superior court denied the motion on the basis that Clark was statutorily ineligible for a youth offender parole hearing under section 3051(h), as he was 22 years old at the time of his controlling offenses for which he was sentenced to LWOP. The court also rejected Clark's arguments that section 3051(h)'s exclusion of young adult LWOP offenders violated constitutional equal protection principles and prohibitions against cruel and/or unusual punishment. Clark's appeal ensued.
On appeal, Clark renews his constitutional claims, arguing that section 3051(h)'s exclusion of young adult LWOP offenders violates constitutional equal protection principles and prohibitions against cruel and/or unusual punishment. Clark also contends that even if his ineligibility for a youth offender parole hearing is currently constitutionally permissible, he is still entitled to a Franklin/Cook proceeding owing to the reasonable possibility that the law will change in the future.
We shall affirm.
Youth Offender Parole Hearings
Section 3051 - Youth Offender Parole Hearings
The Legislature enacted section 3051, which provides for youth offender parole hearings (hereafter also referred to as YOPHs), in response to a series of decisions from the United States and California Supreme Courts concerning Eighth Amendment limitations on juvenile sentencing, which rested in part on scientific developments showing fundamental differences between juvenile and adult cognition and decision making. (People v. Acosta (2021) 60 Cal.App.5th 769, 775-776 (Acosta); see Graham v. Florida (2010) 560 U.S. 48, 69-70 [juveniles who commit nonhomicide offenses cannot be sentenced to LWOP]; Miller v. Alabama (2012) 567 U.S. 460, 465 (Miller) [juveniles who commit homicide offenses cannot be sentenced automatically to LWOP]; People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero) [juveniles cannot be sentenced to the functional equivalent of LWOP for a nonhomicide offense].)
As originally enacted in 2013, section 3051 allowed an offender to seek a YOPH when "the controlling offense" for which the offender was sentenced was committed before the offender was 18 years old but excluded juvenile offenders sentenced to LWOP. (Acosta, supra, 60 Cal.App.5th at p. 776.) The Legislature later extended eligibility for YOPHs to juveniles and to certain defendants between 18 and 25 years old at the time they committed their controlling offense. (Stats. 2017, ch. 684 (Sen. Bill No. 394, Reg. Sess. 20172018), § 1.5, eff. Jan. 1, 2018.)
" 'Controlling offense' means the offense or enhancement for which any sentencing court imposed the longest term of imprisonment." (§ 3051, subd. (a)(2)(B).)
As currently written, section 3051 provides an opportunity for release (via YOPHs) to most offenders convicted of crimes committed before 26 years of age in their 15th, 20th, or 25th year of incarceration based on the length of the original sentence imposed for their controlling offense. (§ 3051, subd. (a)(2)(B); see id., subd. (b)(1)-(4).) (People v. Sands (2021) 70 Cal.App.5th 193, 197-198 (Sands).) Juvenile LWOP offenders are entitled to a YOPH during their 25th year of incarceration. (§ 3051, subd. (b)(4).)
However, offenders (like Clark) convicted of a controlling offense committed after the age of 18 for which they were sentenced to LWOP, are not entitled to a YOPH. (See § 3051(h).) Section 3051, in its current form," 'permits[s] the reevaluation of the fitness to return to society of persons who committed serious offenses prior to reaching full cognitive and emotional maturity,' unless the person was 'between 18 and 25 years of age when they committed their offense [and] sentenced to life without the possibility of parole.' [Citation.] It therefore 'distinguishes both between those who committed their offenses under 18 years of age and those between 18 and 25 years of age, and between offenders 18 and 25 years of age sentenced to prison terms with the possibility of parole and those in the same age group who have been sentenced to life without the possibility of parole.'" (Acosta, supra, 60 Cal.App.5th at p. 777.)
Franklin/Cook Evidence Preservation Proceeding
In Franklin, supra, 63 Cal.4th 261, our Supreme Court held that offenders eligible for youth offender parole were entitled to "make a record of information relevant" to a future YOPH. (Id. at p. 284.) The goal of such a proceeding is "to provide an opportunity for the parties to make an accurate record" of the "offender's characteristics and circumstances at the time of the controlling offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors (§ 4801, subd. (c)) in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime ...." (Franklin, at p. 284.)
While the evidence preservation process authorized in Franklin has at times been referred to as a Franklin hearing, our Supreme Court has specifically noted the "Franklin processes are more properly called 'proceedings' rather than 'hearings.' A hearing generally involves definitive issues of law or fact to be determined with a decision rendered based on that determination. [Citation.] A proceeding is a broader term describing the form or manner of conducting judicial business before a court. [Citations.] While a judicial officer presides over a Franklin proceeding and regulates its conduct, the officer is not called upon to make findings of fact or render any final determination at the proceeding's conclusion. Parole determination[s] are left to the Board." (Cook, supra, 7 Cal.5th at pp. 439, 449, fn. 3.)
In Cook, supra, 7 Cal.5th 439, our Supreme Court extended the right to a Franklin proceeding to sentenced offenders who were eligible for youth offender parole, even though their judgments were otherwise final. (Cook, at p. 451.) In determining the proper mechanism for seeking a Franklin proceeding postjudgment, the court held that a petition for writ of habeas corpus was not necessary (at least in the first instance) to address the Franklin evidence preservation issue, as there was "a plain, speedy, and adequate remedy at law" available via a section 1203.01 motion, which would allow for the creation of a postjudgment record for use at a future YOPH.(Cook, at p. 452.) "[T]he proper avenue is to file a motion in [the] superior court under the original caption and case number, citing the authority of section 1203.01 and [the In re Cook] decision. The motion should establish the inmate's entitlement to a youth offender parole hearing and indicate when such a hearing is anticipated to take place, or if one or more hearings have already occurred....' (Franklin, at p. 284.)" (Cook, at p. 458.)
In so concluding, the Supreme Court made clear that nothing in its Cook opinion "foreclos[ed] an offender, after exhausting the procedures outlined in the opinion, from filing a petition for writ of mandate or habeas corpus to compel the trial court to perform its duties under Franklin," albeit the court expressed "no opinion on the propriety of a writ in that context." (Cook, supra, 7 Cal.5th at pp. 457-458, fn. 6.).
In deciding that a Franklin/Cook proceeding was properly sought via a section 1203.01 motion, our Supreme Court explained that, unlike the typical reasons for seeking habeas corpus relief, an offender seeking a Franklin/Cook proceeding was not challenging "the jurisdiction of the court or the validity of the proceedings that led to [the] now final judgment and sentence." (Cook, supra, 7 Cal. 5th at p. 457.) Nor was the offender seeking to be resentenced or released from confinement. (Id. at pp. 456, 457.) The relief sought "is entirely consistent with section 1203.01, which has nothing to do with the validity of a trial court's judgment. The section does not define procedures that will culminate in a new judgment and does not contemplate modification of the original judgment. By its terms, the statute addresses the filing of statements with the court 'after the judgment has been pronounced.' (§ 1203.01, subd. (a).) . . . [It does not] require the court to act as a factfinder. Rather, it simply entails the receipt of evidence for the benefit of the Board." (Cook, at p. 457.)
Discussion
I. Appealability Issues
a. Order Denying Section 1203.01 Motion for Franklin/Cook Proceeding is Appealable under Section 1237, Subdivision (b)
Clark contends the order denying him relief under section 1203.01 and Franklin/Cook is appealable as a postjudgment order affecting his substantial rights. We agree.
Section 1237, subdivision (b), provides that criminal defendants may appeal from a postjudgment order, "affecting [their] substantial rights." Franklin/Cook and section 1203.01 create "a substantial right" for offenders to obtain a proceeding to preserve evidence for a future YOPH. (Sands, supra, 70 Cal.App.5th at p. 201.) Because the superior court determined Clark was not eligible for such a proceeding, the court's "order affected his substantial rights and is, therefore, appealable." (Id. at p. 200; see Teal v. Superior Court (2014) 60 Cal.4th 595, 598-601 [order denying § 1170.126 motion for recall of sentence is an appealable order under § 1237, subd. (b), even though trial court and court of appeal concluded the defendant was ineligible for relief because he did not meet the threshold eligibility requirements to file a petition for recall in the first place]; cf. People v. Jackson (2021) 61 Cal.App.5th 189, 192, 193-194 (Jackson) [appellate court implicitly concluded an order denying a motion seeking a YOPH is an appealable order by addressing constitutional equal protection challenge to section 3051 even though defendant was ineligible for a youth offender parole hearing].)
b. Clark's Constitutional Challenges to Section 3051(h) are Cognizable on Direct Appeal from Order Denying Motion for Franklin/Cook Proceeding
The Attorney General contends Clark must litigate his constitutional challenges to section 3051's exclusion of young adult LWOP offenders by filing a petition for writ of habeas corpus. We reject this contention for reasons stated by our Division Five colleagues in Sands, supra, 70 Cal.App.5th 193 and decline the Attorney General's invitation to not follow Sands.
Sands was sentenced to LWOP for a special circumstance murder he committed when he was 24 years old. (Sands, supra, 70 Cal.App.5th at p. 197.) He filed a postjudgment motion seeking a Franklin/Cook proceeding to develop a record of mitigating circumstances to be used at a future YOPH. (Sands, at p. 197.) Like Clark, Sands was statutorily ineligible for a youth offender parole hearing but asserted that section 3051(h)'s exclusion of young adult LWOP offenders violated constitutional equal protection principles. (Sands, at p. 197.) Relying on Cook, supra, 7 Cal.5th 439, the Sands court found that a habeas corpus proceeding was unnecessary to raise the constitutional claim because "[l]ike Cook, Sands is not seeking release or challenging the validity of the underlying judgment; he seeks a record preservation hearing. The trial court is not required to make factual findings - Sands brings only a facial equal protection challenge. [Citation.] Any offender that brings a Cook motion must establish . . . entitlement to a youth offender parole hearing in [the] moving papers [citation], which is how Sands raised the equal protection issue." (Sands, at p. 202.)
The Attorney General urges us not to follow Sands, asserting that the decision "ignores the legal distinction between a legislatively authorized, limited postjudgment proceeding for the purpose of record preservation -which does not disturb the underlying judgment [of conviction] - and a constitutional challenge to section 3051 that directly attacks the underlying final LWOP judgment." This argument misconstrues the nature of the constitutional claims at issue and the context in which they are presented.
Like Sands and Cook, Clark is not challenging the validity of his underlying judgment and is not seeking to be resentenced or released. He simply seeks a Franklin/Cook evidence preservation proceeding as an adjunct to a future YOPH. Like Sands, Clark makes only facial constitutional challenges to section 3051(h)'s exclusion of young adult LWOP offenders for a youth offender parole hearing, which is a necessary requisite for an offender's entitlement to a Franklin/Cook evidence preservation proceeding. (Sands, supra, 70 Cal.App.5th at p. 202.) Clark's contention that section 3051 is unconstitutional is not the same as a contention that the underlying judgment - LWOP for special circumstances murders committed at 22 - is unconstitutional. Hence, his appeal from the denial of his section 1203.01 motion for a Franklin/Cook proceeding (including his constitutional challenges to section 3051(h)) does not constitute a collateral attack on his LWOP sentences, and resort to habeas corpus relief in the first instance is unnecessary as our Supreme Court found in Cook.
Our conclusion that Clark need not resort to a petition for a writ of habeas corpus in the first instance is consistent with the Supreme Court's Franklin decision. In Franklin, the court explained that in enacting section 3051, "[t]he Legislature did not envision that the original sentences of eligible youth offenders would be vacated and that new sentences would be imposed to reflect parole eligibility during the 15th, 20th or 25th year of incarceration." (Franklin, supra, 63 Cal.4th at p. 278.) Section 3051 only changes "the manner" in which the "original sentence operates by capping the number of years" that an offender may be imprisoned before becoming eligible for release on parole. (Franklin, at p. 278.) Given the Franklin court's reasoning as to how section 3051 is to function in juxtaposition with an offender's original sentence, we reject the Attorney General's argument that Clark's facial constitutional arguments, presented in the context of his section 1203.01 motion, raised "a substantive attack" on his LWOP sentences in both the trial court and on appeal. Even if there were a successful challenge, Clark's LWOP sentences will remain valid and unchanged; he would only receive a Franklin/Cook proceeding to preserve evidence for a future YOPH.
Accordingly, we conclude Clark was not required in the first instance to file a petition for a writ of habeas corpus to preserve his constitutional challenges to section 3051(h). He appropriately presented his constitutional challenges in the context of his section 1203.01 motion for a Franklin/Cook evidence preservation proceeding. (Sands, supra, 70 Cal.App.5th at pp. 201202; cf. People v. Hardin (2022) 84 Cal.App.5th 273, 277-279 (Hardin) review granted January 11, 2023, S277487 [appellate court implicitly concluded an equal protection challenge to section 3015(h)'s exclusion of young adult LWOP offenders may be raised on an appeal from an order denying a section 1203.01 motion for a Franklin/Cook evidence preservation proceeding]; People v. Ngo (2023) 89 Cal.App.5th 116, 122 (Ngo), review granted May 17, 2023, S279458, holding for Hardin [appellate court implicitly concluded an equal protection challenge to section 3015(h)'s exclusion of young adult LWOP offenders may be raised on an appeal from an order denying a section 1203.01 motion for a Franklin/Cook evidence preservation proceeding].)
II. Section 3051(h)'s Exclusion of Young Adult LWOP Offenders Does Not Violate Constitutional Equal Protection Principles
We independently review Clark's equal protection argument (Jackson, supra, 61 Cal.App.5th at p. 195, citing People v. Ramos (1997) 15 Cal.4th 1133, 1154), and conclude, as have other appellate courts, that section 3051(h)'s exclusion of young adult LWOP offenders does not violate equal protection principles under the federal and state Constitutions.
Both the federal and state Constitutions (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7) "guarantee to all persons the equal protection of the laws. The right to equal protection of the laws is violated when 'the government . . . treat[s] a [similarly situated] group of people unequally without some justification.' [Citations.] 'The California equal protection clause offers substantially similar protection to the federal equal protection clause.'" (Jackson, supra, 61 Cal.App.5th at p. 195.)
Equal protection analysis is well settled and two-fold: "First, we consider whether' "the state has adopted a classification that affects two or more similarly situated groups in an unequal manner."' [Citation.] The groups need not be similar in all respects but must be similarly situated for the purposes of the challenged law." (Sands, supra, 70 Cal.App.5th at p. 202.) "Second, if two similarly situated groups have been identified and no suspect class or fundamental rights are at issue, we must decide whether there is any rational basis to support treating the groups differently." (Ibid.)
Because section 3051 "involves neither a suspect class nor a fundamental right, it need only meet minimum equal protection standards, and survive 'rational basis review.' [Citation.] A criminal defendant has no vested interest' "in a specific term of imprisonment or in the designation a particular crime receives."' [Citation.] It is both the prerogative and the duty of the Legislature to define degrees of culpability and punishment, and to distinguish between crimes in this regard. [Citation.] Courts routinely decline to intrude upon the 'broad discretion' such policy judgments entail." (People v. Turnage (2012) 55 Cal.4th 62, 74 (Turnage).)
"Under these principles, equal protection of the law is denied only where there is no 'rational relationship between the disparity of treatment and some legitimate governmental purpose.'" (Turnage, supra, 55 Cal.4th at p. 74, quoting Heller v. Doe (1993) 509 U.S. 312, 320 (Heller).) "[T]he legislation survives constitutional scrutiny as long as there is' "any reasonably conceivable state of facts that could provide a rational basis for the classification."' [Citation.] This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in' "rational speculation"' as to the justifications for the legislative choice [citation]. It is immaterial for rational basis review 'whether or not' any such speculation has 'a foundation in the record.'" (Turnage, at pp. 74-75.)
a. We Assume, Without Deciding, That Young Adult LWOP Offenders are Similarly Situated to Both Juvenile LWOP Offenders and Young Adult Non-LWOP Offenders for Purposes of Section 3051
Clark argues the following three groups are similarly situated for purposes of section 3051 eligibility: (1) young adult LWOP offenders, like Clark; (2) juvenile LWOP offenders; and (3) young adult non-LWOP offenders (i.e. young adult offenders sentenced to so-called" 'de facto life without parole'" for crimes they committed between the ages of 18 and 25 who "are technically eligible for parole but not within their natural lifetimes"). (Sands, supra, 70 Cal.App.5th at p. 203.)
The Courts of Appeal are not in agreement as to whether the three groups described above are similarly situated for purposes of section 3051. (Compare, e.g., Acosta, supra, 60 Cal.App.5th at p. 779 [three groups are similarly situated for purposes of § 3051 as youth offender parole hearings evaluate whether offenders have outgrown their youthful impulses that resulted in the commission of their controlling offense] with Jackson, supra, 61 Cal.App.5th at p. 199 [young adult LWOP offenders and young adult non-LWOP offenders are not similarly situated because "youthful offenders who have been sentenced to LWOP have committed an aggravated form of first degree murder that distinguishes them from youth offenders who have committed first degree murder but done so in the absence of any such aggravating factors"]; In re Williams (2020) 57 Cal.App.5th 427, 435, fn. 5 (Williams) [young adult LWOP offenders and juvenile LWOP offenders are not similarly situated because" '[c]hildren are constitutionally different from adults for the purposes of sentencing' "].)
Here, we need not resolve the similarly situated question as Clark's equal protection challenge fails the rational basis inquiry. Hence, for purposes of our equal protection analysis, we will assume, without deciding, that young adult LWOP offenders, like Clark, are similarly situated to both juvenile LWOP offenders and young adult non-LWOP offenders.
b. Rational Basis Exists for Differential Treatment Between Young Adult LWOP and Juvenile LWOP Offenders
Clark concedes numerous courts of appeal have held that a rational basis exists for section 3051(h)'s differential treatment between young adult LWOP and juvenile LWOP offenders based on the age of the offender, but he disagrees with those cases and asks us to find otherwise. We decline to do so and concur with those courts of appeal that have held the age of the offender is a rational basis for differential treatment between young adult LWOP and juvenile LWOP offenders. (Hardin, supra, 84 Cal.App.5th at p. 278 ["the Legislature acted rationally in deciding that individuals sentenced to life without parole for a special-circumstance murder committed while still a minor (16 or 17 years old) were entitled to a youth offender parole hearing but young adults who committed the same offense after turning 18 were not"]; see Sands, supra, 70 Cal.App.5th at pp. 203-206; In re Murray (2021) 68 Cal.App.5th 456, 463-464 (Murray); People v. Morales (2021) 67 Cal.App.5th 326, 347 (Morales); Jackson, supra, 61 Cal.App.5th at pp. 194200; Acosta, supra, 60 Cal.App.5th at p. 779.)
In rejecting a challenge to differential treatment between juvenile LWOP and young adult LWOP offenders, the courts have reasoned that such a challenge "lacks merit because both the United States Supreme Court and our high court have repeatedly found the bright-line drawn between juveniles and nonjuveniles to be a rational one when it comes to sentencing." (Jackson, supra, 61 Cal.App.5th at pp. 196-197, citing Miller, supra, 567 U.S. at p. 471 ["children are constitutionally different from adults for purposes of sentencing"]; Roper v. Simmons (2005) 543 U.S. 551, 574 (Roper) ["[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood"]; People v. Gutierrez (2014) 58 Cal.4th 1354, 1380 [the age of 18 "is the line the [United States Supreme Court] has drawn in its Eighth Amendment jurisprudence"]; People v. Gamache (2010) 48 Cal.4th 347, 405 ["[w]e previously have rejected the argument that a death penalty scheme that treats differently those who are 18 years of age and older, and those younger than 18, violates equal protection"].) In granting youth offender parole consideration to juvenile LWOP offenders, the Legislature could rationally decide "to remedy unconstitutional sentences" imposed on those offenders but decide not to go further and grant the same relief to young adult LWOP offenders. (Sands, supra, 70 Cal.App.5th at p. 204; see Hardin, supra, 84 Cal.App.5th at pp. 285-286; Murray, supra, 68 Cal.App.5th at pp. 463-464; Morales, supra, 67 Cal.App.5th at p. 347; Acosta, supra, 60 Cal.App.5th at pp. 779-780.)
We see no merit to Clark's argument that there is no rational basis for differential treatment between young adult LWOP offenders and juvenile LWOP offenders because the purpose of section 3051 is not to measure the extent of punishment warranted, but to permit evaluation of whether, after years in prison," 'the individual has attained the maturity to lead a lawabiding life outside of prison.'" "Although section 3051 may not be 'a sentencing statute per se, it nevertheless impacts the length of sentence served.'" (Sands, supra, 70 Cal.App.5th at p. 205, quoting Murray, supra, 60 Cal.App.5th at p. 464.) And, "[a]ctually, section 3051 is, in part, a sentencing statute. It does not make all youthful offenders eligible for parole at the same point in their incarceration. Rather, a youthful offender sentenced to a determinate term becomes eligible for parole in [the] . . . 15th year of imprisonment (§ 3051, subd. (b)(1)); a youthful offender sentenced to an indeterminate term of less than 25 years to life becomes eligible for parole in [the] . . . 20th year of imprisonment (§ 3051, subd. (b)(2)); and a youthful offender sentenced to an indeterminate term of 25 years to life becomes eligible for parole in [the] . . . 25th year of imprisonment (§ 3051, subd. (b)(3).) This is true even though all three sets of youthful offenders have been simultaneously maturing and outgrowing their youthful impulses. Thus, cutting off the most culpable youthful offenders from parole entirely is not inconsistent with the goals of section 3051." (Ngo, supra, 89 Cal.App.5th at p. 125.)
Accordingly, we reject Clark's equal protection challenge to section 3051(h)'s differential treatment between young adult LWOP offenders and juvenile LWOP offenders.
c. Rational Basis Exists for Differential Treatment Between Young Adult LWOP and Young Adult Non-LWOP Offenders
Clark also argues that given the purpose of section 3051 there is no rational basis for differential treatment between young adult LWOP and young adult non-LWOP offenders. Again, we disagree and concur with those courts of appeal that have held there is a rational basis for differential treatment between young adult LWOP and young adult non-LWOP offenders based on "the severity of the crime committed." (Acosta, supra, 60 Cal.App.5th at p. 780; see Ngo, supra, 89 Cal.App.5th at pp. 122-127; Sands, supra, 70 Cal.App.5th at pp. 204-205; Murray, supra, 68 Cal.App.5th at pp. 463-464; Morales, supra, 67 Cal.App.5th at pp. 347-349; Jackson, supra, 61 Cal.App.5th at pp. 199-200; Williams, supra, 57 Cal.App.5th at pp. 433436.)
We see no merit to Clark's argument that there is no rational basis for differential treatment of young adult LWOP offenders and young adult non-LWOP offenders because the potential for growth and rehabilitation of both groups is the same regardless of the nature of the offense they committed; and both groups have received essentially the same sentence and therefore are equally culpable if it is assumed their sentences rationally reflect their culpability. As we have noted, the Legislature "has broad latitude to define crimes, separate them into degrees, and assign them different punishments based on its view of the crimes' comparative gravity and on policy objective like deterrence, retribution, and incapacitation." (Sands, supra, 70 Cal.App.5th at p. 205.) "Most people sentenced to life without parole, like [Clark], have committed both first degree murder and been found to have committed that murder under one of the aggravating circumstances specified in the special circumstance murder statute. [Citations.] Simply put,' "[t]hese are the crimes the Legislature deems so morally depraved and so injurious as to warrant a sentence that carries no hope of release for the criminal and no threat of recidivism for society." '" (Id. at p. 204, quoting Williams, supra, 57 Cal.App.5th at p. 436.)
The Legislature reasonably could have decided that young adult offenders who committed first-degree special circumstance murder "- even with diminished capability and increased potential for rehabilitation - are nonetheless still sufficiently culpable and sufficiently dangerous to justify lifetime incarceration." (Williams, supra, 57 Cal.App.5th at p. 436; see Acosta, supra, 60 Cal.App.5th at p. 780 [accord].) In contrast, the Legislature could rationally allow youth offender parole hearings for young adult offenders sentenced to the functional equivalent of life without the possibility of parole because their controlling offense, such as first-degree murder, was less grave than first-degree special circumstance. (Sands, supra, 70 Cal.App.5th at p.204.)
The distinction between the groups based on the severity of the committing offense "is not irrational simply because some offenders sentenced to life without the possibility of parole are arguably less culpable than some offenders receiving lesser sentences." (Sands, supra, 70 Cal.App.5th at pp. 204-205; see Turnage, supra, 55 Cal.4th at p. 77 ["[a] classification is not arbitrary or irrational simply because there is an 'imperfect fit between means and ends,'" quoting Heller, supra, 509 U.S. [at p.] 321].) "By denying any possibility of parole to special circumstance murderers, the Legislature presumably hopes to deter others from committing similar offenses in the future. It is in no way irrational, or even contradictory, that the Legislature allows parole for other youthful offenders who, in its view, committed less heinous homicides." (Sands, supra, 70 Cal.App.5th at p. 205.)
Clark urges us to adopt the reasoning of Hardin, supra, 84 Cal.App.5th 273, in which our colleagues in the Second District, Division Seven, concluded there was no rational basis for differential treatment between young adult LWOP and young adult non-LWOP offenders for the purposes of section 3051.
We decline to do so for the reasons stated by our colleagues in the Fourth District, Division Two, in Ngo, supra, 89 Cal.App.5th 116, which we find persuasive and dispositive.
We recognize that the conflict between Hardin and Ngo will ultimately be resolved by our Supreme Court, which has granted review in both cases. In granting review in Hardin, the Supreme Court noted that the case presents the following issue: "Does Penal Code section 3051, subdivision (h), violate the Equal Protection Clause of the Fourteenth Amendment by excluding young adults sentenced to life without the possibility of parole for youth offender parole consideration, while young adults sentenced to parole-eligible terms are entitled to such consideration?"
In its "rational basis" inquiry analysis, the Hardin court concluded that if the" 'goal of section 3051'" was to apply "youth-related mitigating factors to young adults up to the age of 26 in light of neuroscience research that demonstrated the human brain continues to develop into a person's mid-20's, and thus to permit youth offenders a meaningful opportunity for parole if they demonstrate increased maturity and impulse control, then for that purpose there is no plausible basis for distinguishing between same-age offenders based solely on the crime they committed." (Hardin, supra, 84 Cal.App.5th at p. 288; italics added.) However, "the 'rational basis' inquiry is not limited to the purposes of the challenged law," and, as other courts have found, "a rational basis for the challenged distinction" between young adult LWOP offenders and young adult non-LWOP offenders could be found in "other sentencing considerations." (Ngo, supra, 89 Cal.App.5th at p. 125.)
The Hardin court also concluded that differential treatment between young adult LWOP offenders and young adult non-LWOP offenders could not be upheld based on the" 'relative culpability'" of the offenders. (Hardin, supra, 84 Cal.App.5th at pp. 288-291.) While conceding that "relative culpability" of the offenders was a "superficially plausible justification" for the Legislature's distinction, the court found the justification was "belied by the statutory provisions" that allow a youth offender parole hearing for individuals who have committed multiple violent crimes (albeit not specialcircumstances murder) and were sentenced to a technically parole-eligible indeterminate state prison term that is the functional equivalent of life without parole (id. at p. 289); that the distinction between special circumstance murder and nonspecial circumstance murder is illusory because the expansion of factors qualifying as special circumstances (now in excess of 22) meant that special circumstance allegations could have been charged in 95 percent of all first degree murder convictions (id. at p. 289-290); that the exclusion of young adult LWOP offenders "was a deliberate and focused choice, not an inadvertent consequence of broadly worded legislation" (id. at p. 290); and that while the Legislature "may choose to proceed incrementally," there must still be some rational basis for the choices made (id. at pp. 290-291).
However, the Hardin court's reasons for rejecting the distinction between the two groups of young adult offenders based on the "superficially plausible justification" of their relative culpability "ignores the deferential nature of the equal protection standard that applies here." (Turnage, supra, 55 Cal.4th at p. 77.) "Equal protection . . . allows not only incremental regulation, but also incomplete regulation.' "[W]hen conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature seems to have made." [Citation.] "A classification is not arbitrary or irrational simply because there is an 'imperfect fit between means and ends'" [citation], or "because it may be 'to some extent both underinclusive and overinclusive'" [citation]. Consequently, any plausible reason for distinguishing between [two classes] need not exist in every scenario in which the statute may apply.'" (Ngo, supra, 89 Cal.App.5th at p. 126.)
As the Ngo court aptly explained, the Legislature could rationally decide that, for the purposes of determining eligibility for youth offender parole hearings, a bright-line test of relative culpability was appropriate, and that excluding those young adult offenders whose commitment offense was first-degree special circumstance murder and were sentenced to life without the possibility of parole "provide[d] a bright-line test. Moreover, using a special circumstance as a bright-line test of culpability is well-established."(Ngo, supra, 89 Cal.App.5th at p. 126.) By contrast, there is no established test of the culpability of a [young adult whose commitment offense resulted in a sentence that was parole-eligible but was the functional equivalent of life without parole.] Evidently Hardin viewed [such a sentence] itself as an equivalent bright-line test, but the Legislature did not have to; . . . [considering] the many combinations of circumstances that could result in a [sentence that was the functional equivalent of a life term without parole], it could rationally leave the assessment of the culpability of such an offender up to a future Board. [Such an offender] . . . is not necessarily entitled to parole. [The offender] . . . is merely entitled to a youth[ ] offender parole hearing. Thus, an offender who slips through the Legislature's coarse special- circumstance net may yet be caught in the Board's finer mesh." (Ngo, at p. 126.)
For example, in People v. Rhodes (2005) 126 Cal.App.4th 1374, the court rejected an equal protection argument that second degree murder of a peace officer engaged in the performance of his duties (with a special circumstance) could not rationally be punished more harshly than a first degree murder of a non-peace officer or off-duty officer (without special circumstances). (Id. at pp. 1382, 1385-1387.)
We also see no merit to Clark's arguments that standard sentencing objectives of deterrence, incapacitation, rehabilitation, and retribution, do not support section 3051's differential treatment of young adult LWOP offenders and young adult non-LWOP offenders. In support of this argument, he cites to Sumner v. Shuman (1987) 483 U.S. 66, 83; People v. Contreras (2018) 4 Cal.5th 349, and Caballero, supra, 55 Cal.4th 262, which are all inapposite as they are not equal protection cases, but cases concerning Eighth Amendment challenges to sentencing schemes.
Accordingly, we reject Clark's equal protection challenge to section 3051(h)'s differential treatment between young adult LWOP offenders and young adult non-LWOP offenders. Given the deferential standard we must apply in an equal protection analysis, we conclude "public safety, and the desire to punish those persons who commit first degree special circumstance murder more harshly than persons who commit first degree murder without aggravating circumstances, provide a plausible basis for our Legislature to treat these two classifications differently for the purposes of section 3051." (Jackson, supra, 61 Cal.App.5th at p. 200.)
III. Section 3051(h)'s Exclusion of Young Adult LWOP Offenders Does Not Violate Prohibitions Against Cruel and/or Unusual Punishment Under Federal and State Constitutions
Clark argues section 3051(h)'s exclusion of young adult LWOP offenders from eligibility for YOPHs results in the imposition of a cruel and/or unusual sentence in violation of the federal and state Constitutions.
The Eighth Amendment of the United States Constitution prohibits "cruel and unusual punishments." Similarly, article I, section 17, of the California Constitution prohibits the infliction of "[c]ruel or unusual punishment." "Although articulated slightly differently, both standards prohibit punishment that is 'grossly disproportionate' to the crime or the individual culpability of the defendant. [Citations.] Under both standards, the court examines the nature of the offense and the defendant, the punishment for more serious offenses within the jurisdiction, and the punishment for similar offenses in other jurisdictions." (People v. Mendez (2010) 188 Cal.App.4th 47, 64-65.) The Attorney General argues Clark forfeited his federal constitutional claim under the Eighth Amendment because he failed to raise it in the superior court. However, in his superior court motion papers Clark presented both federal and state constitutional claims, albeit noting that the superior court was bound by the authority of higher courts that had addressed his federal constitutional claim. In any event, regardless of whether the issue was properly raised in the superior court, because "facial" constitutional challenges to a statute "may be raised for the first time on appeal" (In re Sheena K. (2007) 40 Cal.4th 875, 888-889), we address Clark's Eighth Amendment claim in our decision.
He recognizes his constitutional claims have been rejected by both the United States Supreme Court and our Supreme Court when addressing facial constitutional challenges to the imposition of the death penalty on young adults who committed their crimes after the age of 18. (See, e.g., People v. Flores (2020) 9 Cal.5th 371, 421 (Flores) [imposition of death penalty on 21 year old offender did not violate Eighth Amendment, citing to Roper, supra, 543 U.S. 551]; Williams, supra, 57 Cal.App.5th at p. 439 [court rejected argument that LWOP sentence is a cruel and unusual punishment when imposed on any 21 year old defendant, noting the California Supreme Court "essentially rejected that very argument in the context of the death penalty" in Flores, supra, 9 Cal.5th 371, and "[i]f the Eighth Amendment does not prohibit a sentence of death for 21 year olds, then most assuredly, it does not prohibit the lesser LWOP sentence"].)
Since Flores was decided, our Supreme Court has continued to follow Roper and rejected federal and state constitutional challenges to the imposition of the death penalty on young adult offenders for crimes committed when they were over the age of 18. For example, in People v. Tran (2022) 13 Cal.5th 1169 (Tran), the Supreme Court considered Tran's constitutional challenge to his death sentence for a first-degree special circumstance murder he committed at the age of 20. (Id. at pp. 1180, 1234.) The court rejected Tran's argument that "imposing the death penalty on persons for crimes committed while they were 18 to 20 years old violates the state and federal Constitutions because it is cruel and unusual punishment and because a death sentence cannot be reliably imposed on such youth offenders like Tran." (Id. at p. 1234.)
In explaining its ruling in Tran, our Supreme Court acknowledged Roper's recognition that the qualities that distinguish juveniles from adults do not disappear when an offender turns 18, but nonetheless, the age of 18 is the point where our society draws the line for many purposes between childhood and adulthood and is the age at which the line for death eligibility ought to rest. (Tran, supra, 13 Cal.5th at p. 1234.) The court noted various developments in the law since the Roper decision," 'including a 2018 resolution from the American Bar Association House of Delegates urging the prohibition of the death penalty for those ages 21 and under [citation]; a nonprecedential opinion from a trial court in Kentucky declaring the death penalty unconstitutional for this same group [citation]; and the California Legislature's expansion of Penal Code section 3051, subdivision (a)(1), which provides "youth offender parole hearing[s]" to inmates who were 25 or younger at the time of their commitment offense.' [Citation.] But 'these developments do not establish the "national consensus" necessary to justify a categorical bar on the death penalty for individuals between the ages of 18 and 21 at the time of their offenses. [Citation.] Nor has defendant presented much in the way of new scientific evidence that might be relevant to the issue.'" (Tran, at pp. 1234-1235; italics added.)
Because we are bound by our Supreme Court holdings that the most extreme punishment of death is constitutional for 18 year olds (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we must reject Clark's argument that section 3051(h)'s exclusion of young adult LWOP offenders from youth offender parole hearings results in the imposition of a cruel and/or unusual punishment under the federal and state Constitutions.
IV. We Deny Clark's Request to Reverse and Order a Franklin/Cook Proceeding Based on a Reasonable Possibility the Law Will Change
Lastly, Clark argues that even if his exclusion from eligibility for a YOPH under section 3051(h) is constitutionally permissible, this court should nonetheless reverse and direct the superior court to grant his section 1203.01 motion for a Franklin/Cook proceeding because there is a reasonable possibility that the law will change. We decline to do so as we must interpret the law as it is currently written.
However, we join with those courts that have urged the Legislature to reconsider whether a young adult sentenced to LWOP "for a crime committed at an age while cognitive brain development was still ongoing should be afforded the possibility of release like those under 18 years old at the time of their offense." (Murray, supra, 68 Cal.App.5th at pp. 464-465; see Acosta, supra, 60 Cal.App.5th at p. 781; Morales, supra, 67 Cal.App.5th at p. 349.)
Disposition
The August 8, 2022 order is affirmed.
WE CONCUR: Fujisaki, Acting P.J. Rodriguez, J.