Opinion
F084093
09-19-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANTONIO ESPINOZA, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F18904320 . Jonathan B. Conklin, Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
INTRODUCTION
Appellant Joseph Antonio Espinoza was 19 years old when he embarked on a crime spree which culminated in the murder of 17-year-old Nicholas Kauls during an attempted robbery. Two days later, he was apprehended by police following a brief pursuit. Espinoza was convicted by jury of multiple offenses, including murder, attempted murder, several counts of attempted robbery, and other firearm and theft-related crimes. The jury also found true a robbery-murder special circumstance allegation, as well as various enhancements. The trial court sentenced Espinoza to life without the possibility of parole (LWOP), plus an indeterminate term of 25 years to life and a determinate term of 35 years.
Espinoza raises the following claims on appeal: (1) the jury was improperly instructed on the felony-murder special circumstance allegation, excusing the jury from making necessary findings, including whether the predicate felony, a robbery, was merely incidental to the murder; (2) the trial court prejudicially erred by instructing the jury on the kill zone theory of attempted murder liability. According to Espinoza, the instruction was unsupported by the evidence adduced at trial and incorrectly stated the law; (3) the felony-murder special circumstance punishment was applied in violation of the Eighth Amendment; and finally, (4) Penal Code section 3051's exclusion of young adult LWOP offenders from youth offender parole consideration violates equal protection. We affirm.
PROCEDURAL HISTORY
On September 13, 2019, the Fresno County District Attorney filed an information charging Espinoza with the following crimes: assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b); counts 1, 8, 9); petty theft (§ 484, subd. (a); count 3); murder (§ 187, subd. (a); count 4); attempted murder (§§ 664/187, subd. (a); count 5); attempted second degree robbery (§§ 664/211; counts 2, 6, 7); assault with a deadly weapon (§ 245, subd. (a)(1); count 10); unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count 11); receiving a stolen vehicle (§ 496d, subd. (a); count 12); misdemeanor carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1); count 13); misdemeanor carrying a concealed firearm on a person (§ 25400, subd. (a)(2); count 14); leaving the scene of an accident (Veh. Code, § 20001, subd. (a); count 15); assault with a deadly weapon upon a peace officer (§ 245, subd. (c); count 16); and resisting an officer, a misdemeanor (§ 148, subd. (a)(1); count 17).
All undefined statutory citations are to the Penal Code unless otherwise indicated.
In addition, the information alleged multiple enhancements for the personal use of a firearm (§ 12022.5, subd. (a), counts 1, 8, 9); the personal and intentional discharge of a firearm (§ 12022.53, subd. (c), counts 2, 5, 7); and discharging a firearm that proximately caused great bodily injury or death (§ 12022.53, subd. (d), counts 4, 6). The information further alleged a special circumstance for the commission of a murder during a robbery. (§ 190.2, subd. (a)(17).)
On September 27, 2021, Espinoza's jury trial commenced.
On November 22, 2021, the jury found Espinoza guilty of second degree robbery (count 2); murder (count 4); attempted murder (count 5); attempted second degree robbery (counts 6, 7); assault with a semiautomatic firearm (counts 8, 9); unlawful taking of a vehicle (count 11); buying or receiving a stolen vehicle (count 12); possession of a concealed firearm in a vehicle (count 13); concealed firearm on a person (count 14); and resisting a peace officer (count 17). In addition, the jury found true the enhancements alleged as to counts 4 through 9. Espinoza was found guilty of the lesser-included offense of simple assault on counts 10 and 16, and not guilty of all remaining counts and enhancements.
On March 10, 2022, Espinoza was sentenced to life without the possibility of parole, plus an indeterminate term of 25 years to life and a determinate term of 35 years.
A timely notice of appeal followed.
STATEMENT OF FACTS
Espinoza Forms a Plan to Raise Bail Money
On June 24, 2018, at 2:40 a.m., police officers from the City of Fresno responded to a disturbance call at the Motel 6 located on North Blackstone Boulevard. The call originated from a motel room where multiple people were present, including Espinoza and Jose Figueroa. Espinoza and Figueroa were close friends.
The registered occupant of the motel room, Sierra Ruiz, consented to a search of the premises. During the search, officers discovered a bag of ammunition on top of a refrigerator in the room. Additionally, they found two firearms hidden under mattresses: an SKS rifle with a chambered round and an AR 15-style rifle with a loaded magazine and a chambered round. The magazine for the SKS rifle was found on the bedside table.
Figueroa took responsibility for the firearms and was arrested. Espinoza was arrested for possession of a controlled substance but was later released.
Following Figueroa's arrest, Espinoza, Ruiz, and Destiny Rangel went to M.P.'s home in Fresno. Figueroa was in a dating relationship with both M.P. and Rangel, and Espinoza was in a dating relationship with Ruiz.
While Figueroa was in custody, he would frequently call M.P. from jail, seeking assistance with bail money. M.P. expressed her willingness to help. Meanwhile, Espinoza and Rangel planned "hitting a lick," which implied their intention to commit a robbery.
On June 24, 2018, at 11:05 a.m., Figueroa called M.P. from jail. During the call, Figueroa spoke to Espinoza. Espinoza expressed his anger and stated that he was about to start lashing out because Figueroa was still in jail.
At 2:30 p.m., Espinoza discussed bail money with S.M., the mother of his child. S.M. stated that she did not have the amount of money that Espinoza needed but told Espinoza that he could rob her workplace in exchange for $200. S.M. worked at the Sonic restaurant on Blackstone and Rialto. Espinoza agreed.
Around the same time, Espinoza messaged Ruiz, stating that the planned robberies would not yield the $5,000 needed for Figueroa's bail, but they would generate around $4,000.
At 3:21 p.m., Figueroa called Espinoza again, insisting that he be bailed out before his birthday. Espinoza told Figueroa that he had something lined up and intended to "stack the money."
At 4:11 p.m., Espinoza received a Facebook message from C.N., who inquired about Figueroa's situation. Espinoza replied that he was trying to raise money for Figueroa's bail. C.N. chastised Espinoza for letting Figueroa "take the rap" for the firearms after Figueroa had "just got out." At one point, Espinoza stated, "I'm just lickin everything RN," meaning that he was trying to commit robberies. He explained that as "[s]oon as night hit," he planned on "[h]itting licks."
That evening, Espinoza and Rangel left M.P.'s residence through the garage. M.P. later noticed that her Glock firearm was missing from her nightstand drawer.
1. The Crime Spree
The following events occurred on the evening of June 24, 2018:
T.N.'s Vehicle Stolen (Counts 11 &12)
At approximately 10:44 p.m., surveillance footage captured T.N.'s white 2018 Toyota Highlander being driven away from a middle school. The vehicle, which was recently purchased, still had paper plates on it from the dealer. The following morning, T.N. discovered her vehicle was missing and reported it stolen.
Attempted Robbery of M.G. (Count 2)
At approximately 11:15 p.m., M.G. visited a Chase Bank located at the corner of Shaw Avenue and Fruit Avenue to make a deposit. Surveillance footage from the bank depicted the arrival of a white SUV in the parking lot at 11:17 p.m.
As M.G. drove away, he noticed a white four-door SUV speeding out of the parking lot, and soon realized that it was following him. Sensing danger, M.G. employed evasive driving maneuvers to avoid the pursuing SUV.
After executing a U-turn, M.G. pulled over in front of a nearby apartment complex, but the white SUV also pulled over and attempted to block his path. Five individuals emerged from the SUV and approached M.G.
Despite their efforts, M.G. managed to maneuver around them and drove away. The SUV caught up to him, positioning itself alongside M.G.'s vehicle. The driver of the SUV brandished a firearm at M.G., while the others shouted at M.G. to pull over. When M.G. refused to comply, they opened fire on him. M.G. observed the muzzle flash originating from the passenger's side. The ShotSpotter system recorded a gunshot at approximately 11:26 p.m., near the vicinity of 1550 West Ashlan Avenue.
The ShotSpotter system is used for detecting and locating gunfire incidents in urban areas. It is designed to assist law enforcement agencies respond quickly and effectively to gun-related crimes. The system consists of a network of acoustic sensors strategically placed throughout a city or specific area. These sensors are sensitive to the sound of gunfire and can differentiate between gunshots and other noises.
In a desperate attempt to escape, M.G. veered into oncoming traffic and stopped in the middle of the intersection of Ashlan Avenue and West Avenue. Meanwhile, the white SUV entered the parking lot of a nearby McDonald's restaurant, circled the building, exited, crossed over the center divider, and approached M.G.'s vehicle before abruptly departing.
Witnesses described the driver of the SUV as a slim-faced, light-skinned Hispanic male in his early 20's, with long dark hair, wearing a white hoodie, and armed with a black semiautomatic handgun.
The Attempted Robbery and Murder of Nicholas Kauls and Attempted Robbery and Attempted Murder of P.Q. (Counts 4-7)
S.S., D.P., P.Q., and Nicholas Kauls (Nick), were all hanging out at D.P.'s house, located in Old Fig Garden, an unincorporated part of Fresno County. The group eventually went down to the basement to watch a movie. D.P.'s older sister, I.P., was watching television in the family room.
Around 11:35 p.m., Nick and P.Q. went outside to Nick's car, parked in front of the house on the street, to retrieve a vaporizer. Because there are no streetlights in front of the house, it was extremely dark outside.
D.P.'s house faced east and was situated on a triangular-shaped property, with Rialto Avenue running along its south side and Sunset Avenue diagonally along the north side. The entire property is enclosed by a wrought iron fence.
As Nick and P.Q. made their way back toward the gate surrounding D.P.'s house, an unidentified male in dark clothing, armed with a black semiautomatic handgun, emerged from a newer model white SUV that stopped just ahead of them. The man demanded that Nick and P.Q. hand over their belongings. P.Q. could not see the man's face because it was so dark outside.
P.Q. froze. Nick turned and ran toward the gate separating the driveway from the street. P.Q. followed. Within seconds, the man began shooting. P.Q. sought cover between two cars parked in the driveway, crouching down and hiding. He heard a total of three or four gunshots.
P.Q. initially testified that he and Nick were "still looking at the car" when the first shot was fired. However, he subsequently clarified that he did not see the shooting occur.
Upon hearing the gate leading to the kitchen door slam shut, P.Q. ran through the gate, crossed the breezeway, and rushed inside the house. Realizing that Nick was missing, D.P. swiftly exited the kitchen door and reached the breezeway, where he discovered Nick lying on the ground outside the breezeway gate, bleeding.
Nick had been shot in the back of the head and had collapsed. D.P. carried him into the house. Through the kitchen window, D.P. glimpsed the taillights of a departing vehicle, which appeared to be a black, silver, or white SUV displaying a red and white paper license plate.
At 11:25 p.m., G.H., a neighbor on the corner of Acacia Drive and Arcade Avenue, heard what he initially assumed to be fireworks from his residence. He discerned at least two shots. From inside his home, G.H. heard the screeching of tires as a vehicle sped rapidly along the curving roads. Peering out of his window, he observed an individual exiting a white SUV stopped in the road.
The person, either a male with long hair or a female, rushed to a parked vehicle in G.H.'s neighbor's carport across the street. Upon attempting to open the passenger door of the parked vehicle, a motion-detecting light illuminated the area, prompting the individual to return to the white SUV. The individual entered the passenger side of the SUV, and the vehicle quickly departed down Arcade Avenue.
S.S., I.P., and D.P. all reported hearing multiple gunshots, with varying numbers and pauses between the shots.
Nick was taken to the hospital by ambulance. Four days later, he succumbed from his injuries. Two nine-millimeter shell casings were found on the pavement of Rialto Avenue, near the garage and south of the gate. Additionally, two bullet or bullet fragment marks were discovered on the upper portion of the garage door, as well as a nick in the wooden garage frame above the marks, indicating damage that possibly occurred during the shooting.
Assault With a Firearm on R.R. and V.R. (Counts 8 &9)
At around 10:00 p.m., R.R. was driving his pickup truck east on Gettysburg Avenue, crossing the Highway 41 overpass. Accompanying him in the front seat was his brother, V.R. Just after passing the stoplight at Gettysburg Avenue and Fresno Street, a white SUV with temporary dealer license plates pulled up beside them in the lefthand lane. V.R. described the SUV as a clean white Toyota.
The SUV continued straight on Gettysburg Avenue in the left lane. At the intersection of Gettysburg Avenue and First Street, R.R. stopped for another signal, and as he proceeded on Gettysburg, the white SUV stayed alongside them in the left lane. The front-seat passenger of the SUV gestured for R.R. to roll down his window, but R.R. did not comply.
The front-seat passenger showed R.R. that he was loading a magazine into a semiautomatic firearm. Suddenly, R.R. saw a flash and heard a gunshot. The bullet entered the rear pillar of R.R.'s truck on the driver's side and exited through the rear window. Neither R.R. nor V.R. were injured.
R.R. immediately called 911. During the call, he described the vehicle from which the shot was fired as a white Toyota without a license plate, but with an agency sticker. He provided a description of the shooter as a Hispanic male in his early twenties with long black hair, wearing a red hoodie. V.R. also described the shooter as a Hispanic male around 18 years old with long wavy hair and a red hoodie not pulled over his head.
V.R. subsequently identified Espinoza as the shooter.
Post-Crime Spree Events
At 11:53 p.m., a white SUV consistent with T.N.'s stolen Highlander was seen slowly driving past M.P.'s residence.
At 11:57 p.m., three individuals, including Espinoza, walked towards M.P.'s front door. M.P. woke up in the middle of the night and heard Espinoza, Rangel, and Ruiz in the living room.
The following morning, M.P. asked Espinoza about her missing Glock firearm. Espinoza retrieved the Glock from his waistband and handed it to M.P.
On June 25, 2018, at 11:48 a.m., messages were sent from Espinoza's Facebook account to other accounts containing a screenshot of a news story about a 17-year-old boy who had been shot in the area of Old Fig Garden.
Later that day, at 2:30 p.m., Espinoza resumed his conversation on Facebook with a person named C.N. They discussed Espinoza's emotional state due to his close friend, Figueroa, being in jail. During the conversation, Espinoza stated that he planned to hit licks "as [soon] as night hit[s]."
On June 25, 2018, Espinoza sent the news story screenshot to S.M. When M.P. returned home from work that evening, she found Espinoza, Ruiz, and Rangel present. She asked what had happened the previous night, and Espinoza admitted that they had gone into gated, affluent neighborhoods and that he had used M.P.'s firearm.
At 6:12 p.m. that evening, Figueroa called M.P. from jail. M.P. handed the phone to Espinoza. Figueroa expressed his discontent about being in jail and wanting to be bailed out. Espinoza informed Figueroa that he had "caught a body" the previous night and told Figueroa to watch the news as it would be about him. Figueroa confirmed seeing the news, and Espinoza proudly claimed responsibility for the shooting, remarking that they had been "wilding" the previous night. At the time of the phone call, Nick was still in critical care at the hospital.
At 6:57 p.m., Figueroa made another call from jail, and Espinoza spoke with him again. Espinoza mentioned once more that he had "caught a body" the previous night, specifying that the victim was a 17-year-old who was "a little spook," a derogatory term for a black person, and that the victim was "DOA" or dead on arrival. The victim, Nick, was half black. Figueroa confirmed seeing the news and that he already knew.
T.N.'s Toyota Highlander is Found
A still photograph of a white SUV, taken from a video recording obtained from The Brig Bar on Rialto Avenue and Blackstone Avenue, was shown to an automotive dealer. He positively identified the white SUV as a 2018 Toyota Highlander. A multi- agency stolen vehicle task force was alerted about the stolen Toyota Highlander belonging to T.N.
On June 26, 2018, at 2:30 p.m., the stolen Highlander was located parked on Seventh Street, north of Alamos Avenue in Fresno, near M.P.'s residence. Investigators kept surveillance on the parked vehicle until 6:00 p.m. when Espinoza, Ruiz, and Rangel entered the Highlander, with Espinoza holding the keys.
Investigators followed Espinoza as he drove the Highlander into the drive-thru of a McDonald's on Shaw Avenue. Fresno County Sheriff's Detective Capriola, a member of the stolen-vehicle task force, parked in the McDonald's parking lot and awaited backup. As the Highlander approached the food window with no vehicle in front of it, Detective Capriola decided to take measures to prevent the Highlander from leaving.
Detective Capriola activated his vehicle's lights and sirens and drove towards the Highlander head-on, stopping two feet away from it in the drive-thru line, and blocked it in. He activated his vehicle's lights and sirens.
Espinoza reversed the Highlander, accelerated backward, and collided with an occupied pickup truck. Detective Capriola positioned himself behind the door of his patrol vehicle with his firearm drawn. He commanded Espinoza to stop the car and show his hands. Espinoza shifted the Highlander into drive and exited through the driver's door just before the vehicle rolled forward colliding with Detective Capriola's vehicle. Espinoza fled on foot. Ruiz and Rangel also exited the Highlander and ran in the opposite direction.
Detective Capriola pursued Espinoza. As Espinoza ran, he discarded a Haskell .45-caliber handgun with a missing magazine.
Espinoza's Arrest and Post Arrest-Evidence
Espinoza was eventually found hiding in a large dumpster. The Highlander he was driving was confirmed to be the stolen vehicle registered to T.N. Inside the
Highlander, a live round was discovered on the floorboard, and a nine-millimeter shell casing was found on the driver's floorboard.
Following his arrest, Espinoza was interrogated by law enforcement. During the interrogation, Espinoza consistently claimed that he was with his sister, A.A., at her home at the time of the homicide.
At 12:55 a.m., Espinoza called A.A. to inform her of his arrest and to seek assistance with arranging bail. During the call, he mentioned that he had told the authorities he was with A.A. on the night of the murder. A.A. corrected him, stating that he was actually with S.M. Espinoza made additional phone calls to his sister and friends, discussing the importance of aligning their stories.
On June 28, 2018, during the execution of a search warrant at M.P.'s residence, a nine-millimeter semiautomatic firearm belonging to M.P. was found concealed under a stack of clothing on a closet shelf in the master bedroom. Additionally, a box of ammunition was found in the nightstand drawer, and loose rounds were found on the foot of the bed in the master bedroom. Espinoza's social security card was also located in a wallet inside a plastic bin in M.P.'s garage, along with live ammunition of .45 and .22 calibers.
The shell casing found in the Highlander, as well as the two casings found on the street after Nick was shot, were determined to have been fired from M.P.'s nine-millimeter Glock. Furthermore, the bullet fragment recovered from Nick's body belonged to the .38-caliber family, which includes nine-millimeter ammunition.
On June 28, 2018, at 8:12 p.m., law enforcement interrogated Espinoza a second time. During his interrogation, Espinoza claimed that he had been with S.M., his child's mother, visiting his daughter on Sunday night. He explained that his earlier claim of being with his sister was intended to protect S.M. from harassment by the detectives.
DISCUSSION
I. The Felony-Murder Special Circumstance Instruction
Espinoza challenges the jury instruction on the special-circumstance allegation on two grounds. First, he contends that the attempted robbery of Nick was merely incidental to the planned crime of murder, and the jury could have found the special circumstance not true had it been properly instructed on this point. Second, he claims that the special circumstance instruction failed to direct the jury to consult the instruction on the elements of robbery before finding true the special circumstance allegation, resulting in a failure to instruct on all elements of the allegation.
The Attorney General contends that Espinoza has forfeited his claims by failing to raise his claims below and that Espinoza's claims are meritless.
We exercise our discretion to address the merits of Espinoza's claims. (See In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7 quoting People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 ["an appellate court may review a forfeited claim-and '[w]hether or not it should do so is entrusted to its discretion' "].) For the reasons discussed below, we find neither error, nor prejudice assuming error.
A. Background
With respect to the robbery-murder special circumstance allegation, the jury was instructed with a modified version of CALCRIM No. 730. The instruction stated that to prove the special circumstance, the People must prove the following elements, beyond a reasonable doubt: (1) "The defendant committed or attempted to commit Robbery;" (2) "The defendant intended to commit Robbery;" and (3) "The defendant did an act that caused the death of another person, Nicholas Kauls."
As relevant here, the following language was omitted from the instruction:
"To decide whether (the defendant/ [and] the perpetrator) committed [or attempted to commit] <insert felony or felonies from Pen. Code, § 190.2(a)(17)>, please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s] ... [y]ou must apply those instructions when you decide whether the People have proved this special circumstance.
"[In addition, in order for this special circumstance to be true, the People must prove that the defendant intended to commit <insert felony or felonies from Pen. Code, § 190.2(a)(17)> independent of the killing. If you find that the defendant only intended to commit murder and the commission of <insert felony or felonies from Pen. Code, § 190.2(a)(17)> was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.]"
The bench notes for CALCRIM No. 730 state that the bracketed portion of the instruction, which begins with "In addition, in order for this special circumstance to be true," must be given "if the evidence supports a reasonable inference that the felony was committed merely to facilitate the murder." (Judicial Council of Cal., Crim. Jury Instns. (2021) Bench Notes to CALCRIM No. 730, at p. 2.)
B. Analysis
1. Failure to Instruct the Jury that the Attempted Robbery May Have Been Merely Incidental to the Murder
"[A] robbery, in a special circumstance allegation, cannot be 'merely incidental to the murder.'" (People v. Valdez (2004) 32 Cal.4th 73, 114, quoting People v. Green (1980) 27 Cal.3d 1, 61 (Green).)" 'A robbery or attempted robbery is merely incidental to a murder where there is no purpose for the commission of the robbery or attempted robbery that is independent of the murder.'" (People v. Lindberg (2008) 45 Cal.4th 1, 33, fn. 10.) A robbery may have no independent felonious purpose where, for example, the sole objective of the robbery is to conceal a murder or to facilitate an escape. (Ibid.; e.g., Green, at p. 61, disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 [robbery was merely incidental to the primary crime of murder, and could not support the special circumstance where the underlying motive for the robbery was to prevent the murder victim from being identified].)
The felony-murder special circumstance reflects the Legislature's belief that it is constitutionally acceptable to subject defendants to the death penalty when they intentionally kill to further an unrelated felonious objective, such as robbery. (Green, supra, 27 Cal.3d at p. 61.) Thus, if" 'there was an intent at the time of [a] murder to commit a robbery ..., and the murder was committed while the defendant was engaged in the commission of a robbery or attempted robbery,'" the robbery-murder special circumstance may apply. (People v. Lindberg, supra, 45 Cal.4th at p. 33, fn. 10.) But the special circumstance is not applicable if evidence suggests the "felony is merely incidental to achieving the murder-the murder being the defendant's primary purpose." (People v. Navarette (2003) 30 Cal.4th 458, 505.)
"To permit a jury to choose who will live and who will die on the basis of whether in the course of committing a first degree murder the defendant happens to engage in ancillary conduct that technically constitutes robbery or one of the other listed felonies would be to revive 'the risk of wholly arbitrary and capricious action' condemned by the high court plurality in Gregg [v. Georgia (1976) 428 U.S. 153]." (Green, supra, 27 Cal.3d at pp. 61-62; Gregg v. Georgia, supra, 428 U.S. at p. 189 ["where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action"].)
Espinoza contends that the trial court prejudicially erred by failing to instruct the jury, sua sponte, on the bracketed language concerning whether the robbery was merely incidental to the murder. But there was no evidence supporting the conclusion that Espinoza attempted to rob Nick to facilitate a murder.
The evidence adduced at trial overwhelmingly supports the singular conclusion that Espinoza planned to commit a series of robberies to raise enough money to bail Figueroa out of jail. It is of no consequence that his criminal endeavors were unsuccessful. Contrary to Espinoza's assertion, the evidence adduced at trial does not support a reasonable inference that he was on a quest to kill at random. If that were the case, Espinoza did nothing to develop that theory at trial.
As our Supreme Court has made clear, where there is no significant evidence of motive for a murder other than robbery, there is no error in the failure to give the optional bracketed language in CALCRIM No. 730 that Espinoza submits should have been given here. (See People v. Navarette, supra, 30 Cal.4th at p. 505 [upholding conviction where similar language was omitted from the instruction given to the jury pursuant to CALJIC No. 8.81.17, the closest corollary to CALCRIM No. 730]; see also, People v. Harden (2003) 110 Cal.App.4th 848, 863-864 [explaining that the bracketed language in CALJIC No. 8.81.17 "may be omitted by a trial court if the evidence does not support a reasonable inference ... that commission of the felony other than murder was merely incidental to the primary goal of murder"].)
The "merely incidental" language in CALCRIM No. 730, "is not an element of the special circumstance allegation on which the jury must be instructed in all cases." (People v. Valdez (2004) 32 Cal.4th 73, 114.) The omitted language of CALCRIM No. 730 was not warranted much less required based upon the facts of this case. We therefore find no error in the trial court's failure to instruct the jury with this optional language.
2. Failure to Instruct the Jury that it Must Refer to the Instruction on the Elements of Robbery Before Finding the Special Circumstance Allegation True
Espinoza further contends the trial court prejudicially erred by failing to instruct the jury on all elements of the robbery-murder special circumstance allegation because the jury was not instructed to consult the instruction on robbery/attempted robbery, the predicate felony, before finding the special circumstance allegation true. We find his claim meritless.
The jury was instructed upon a modified version of CALCRIM No. 730 (Special Circumstances: Murder in Commission of Felony (Pen. Code, § 190.2(a)(17)), which included the following language, in relevant part:
"To decide whether the defendant committed or attempted to commit Robbery, please refer to the separate instructions that I will give you on that crime. You must apply those instructions when you decide whether the People have proved first degree murder under a theory of felony murder." Espinoza contends the trial court erred by omitting the following additional language from this instruction: "You must apply those instructions when you decide whether the People have proved this special circumstance." (CALCRIM No. 730, italics added.) Consequently, Espinoza submits that the jury was not adequately apprised of the fact that there must be a logical nexus between the attempted robbery and the special circumstance allegation.
Even in the absence of language which specifically directs the jury to consult the jury instruction on robbery or attempted robbery in determining whether the robberymurder special circumstance allegation had been proven, it is reasonable to infer that the jury did so here. This special circumstance allegation only applies where a murder occurred in the commission of a completed or attempted robbery, and Espinoza was convicted of the attempted robbery of Nick. Upon the instant record, it cannot be reasonably disputed that the murder occurred during the commission of the robbery since Espinoza had not reached a "place of temporary safety" when he murdered Nick. (See People v. Wilkins (2013) 56 Cal.4th 333, 343.) It simply defies commonsense to conclude that although the jury found Espinoza guilty of the predicate crime of attempted robbery, it found true the special circumstance allegation based upon a mistaken understanding of the elements of this same crime.
In any event, contrary to Espinoza's assertion, the jury was required to find the elements of robbery had been proven beyond a reasonable doubt, before finding the special circumstance allegation true. The jury was given a separate instruction that specifically applied to the attempted robbery charges (counts 2, 6, 7), as well as the felony murder theory which applied to the murder of Nick (count 4), and the robberymurder special circumstance allegation that applied to count 4. This instruction stated:
"A special circumstance is also alleged for Count Four: that is that the murder of Nicholas Kauls was committed while the defendant was engaged in the commission of the crime of Robbery, within the meaning of Penal Code Section 190.2(a)(17)[.]
"For purposes of these crimes and allegations, the elements of robbery are: "1. The defendant took property that was not his own; "2. The property was in the possession of another person; "3. The property was taken from the other person or his or her immediate presence; "4. The property was taken against that person's will; "5. The defendant used force or fear to take the property or to prevent the person from resisting; "AND
"6. When the defendant used force or fear to take the property, he intended to deprive the owner of the property permanently."
Thus, the jury was in fact instructed on the elements of robbery for purposes of the robbery-murder special circumstance allegation. We find no error under the circumstances. (People v. Nelson (2016) 1 Cal.5th 513, 544 [" 'When we review challenges to a jury instruction as being incorrect or incomplete, we evaluate the instructions as a whole, not in isolation' "].)
Espinoza insists that "Nothing ... that the jury was told prevented them from using the impermissible route-finding first-degree felony murder based on the robbery and attempted robbery instructions-to convict [him] on the special circumstance." He directs this court to Francis v. Franklin (1985) 471 U.S. 307, 322 to support his assertion, without explanation as to how that case is instructive.
Francis v. Franklin addressed an error in the jury instructions that created a mandatory presumption that shifted the burden of persuasion to the defendant on the element of intent once certain predicate acts were found proven. (Francis v. Franklin, supra, 471 U.S. at pp. 311, 316.) As distinct from Francis v. Franklin, the alleged error here did not alleviate the prosecutor from her burden of proving all elements of the special circumstance allegation true beyond a reasonable doubt, including the predicate crime of robbery, and the fact that the murder occurred during the commission of a robbery.
In any event, Espinoza cannot show prejudice upon this record. Even under the heightened test for prejudice articulated in Chapman v. State of California (1967) 386 U.S. 18 (Chapman), we are confident that any presumed error by omission of the italicized language identified above was "harmless beyond a reasonable doubt." (Id. at p. 24.) The evidence supporting the robbery-murder special circumstance was overwhelming, despite Espinoza's assertions to the contrary. As he does not separately challenge the sufficiency of the evidence supporting the jury's true finding on robberymurder special circumstance, we do not repeat the facts supporting the allegation here. We reject Espinoza's claim of instructional error.
II. The Prosecutor's Reliance Upon the Kill Zone Theory
Espinoza further challenges the prosecutor's reliance upon the kill zone theory as one of the bases of liability for the attempted murder of P.Q. (count 5). According to Espinoza, the kill zone theory was unsupported by the evidence adduced at trial, and the jury instruction given prejudicially misstated the law. The Attorney General responds that Espinoza's claim is forfeited, and that it fails on the merits.
We conclude the issue is not forfeited because the claimed error implicates Espinoza's substantial rights. (See § 1259; People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) We further conclude that although the evidence did not clearly support the prosecutor's reliance upon the kill zone theory, the instruction correctly stated the law. Applying the test for prejudice implicated when a factually unsupported theory is relied upon to prove a defendant's liability for a charged offense (see People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 (Guiton)), we are persuaded that the error does not require reversal of Espinoza's conviction for attempted murder.
A. Background 1. Jury Instruction
Espinoza was charged with the attempted murder of P.Q. in count 5. The jury received instructions in accordance with CALCRIM No. 600, which incorporated direct intent and "kill zone" theories of liability. The instruction stated the following, in relevant part:
"To prove that the defendant is guilty of attempted murder, the People must prove that:
"1. The defendant took at least one direct but ineffective step toward killing another person, that is [P.Q.];
"AND "2. The defendant intended to kill that person.
[¶...¶]
"A person may intend to kill a primary target and also a secondary target within a zone of fatal harm or 'kill zone.' A 'kill zone' is an area in which the defendant used lethal force that was designed and intended to kill everyone in the area around the primary target.
"In order to convict the defendant of attempted murder of [P.Q.], the People must prove that the defendant not only intended to kill Nicholas Kauls but also either intended to kill [P.Q.] or intended to kill everyone within the kill zone.
"In determining whether the defendant intended to kill [P.Q.], the People must prove that (1) the only reasonable conclusion from the defendant's use of lethal force, is that the defendant intended to create a kill zone; and (2) [P.Q.] was located within the kill zone.
"In determining whether the defendant intended to create a 'kill zone' and the scope of such a zone, you should consider all of the circumstances, included but not limited to, the following:
"*The type of weapon used
"*The number of shots fired
"*The distance between the defendant and [P.Q.]
"*The distance between [P.Q.] and Nicholas Kauls
"If you have a reasonable doubt whether the defendant intended to kill [P.Q.], or intended to kill Nicholas Kauls, by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of [P.Q.]."
2. The Prosecutor's Comments in Closing Argument
During her comments in closing argument, the prosecutor briefly discussed the kill zone theory in relation to count 5:
"[THE PROSECUTOR:] So let's talk about [P.Q.] ... [P.Q.] is a victim of attempted murder. ... So an attempt, again, is the defendant took a direct but ineffective step towards killing another person. And he intended to kill that person. And the person in this case was P.Q. . . . There's also this theory called kill zone. And this theory talks about when there's an area where the defendant uses lethal force and it was designed to kill everyone in that area around that primary target. Okay? And the only reasonable conclusion from the defendant's use of lethal force is that he intended to create this kill zone. And [P.Q.] and Nick were in that kill zone. Okay?"
The prosecutor further explained that Espinoza was not just shooting at Nick, but that he was also shooting at P.Q. Espinoza had fired one shot. Paused. Then fired at least one more shot. According to the prosecutor, the pause between gunshots evinced Espinoza's intention to kill both victims.
Eyewitnesses who heard the shooting testified that they had heard between two and five gunshots, but only two shell casings were recovered from the crime scene.
B. Relevant Legal Principles 1. Standard of Review for Instructional Error
We independently review the record to determine whether substantial evidence supports a jury instruction and whether a challenged instruction correctly states the law. (See People v. Kerley (2018) 23 Cal.App.5th 513, 565.) Different errors invoke different tests for prejudice.
If the court instructs the jury on a theory unsupported by the evidence, the error is one of state law, and "reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred." (Guiton, supra, 4 Cal.4th at p. 1130 [applying harmless error under People v. Watson (1956) 46 Cal.2d 818, 836].)
On the other hand, "[i]nstructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict." (People v. Chun (2009) 45 Cal.4th 1172, 1201, superseded by statute as stated in People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-249; People v. Aledamat (2019) 8 Cal.5th 1, 13 [alternative-theory error is subject to the more general harmless error test in Chapman].) The reviewing court must examine the entire cause, including the evidence, and consider all relevant circumstances when determining whether the error was harmless beyond a reasonable doubt. (People v. Aledamat, at p. 13; In re Lopez (2023) 14 Cal.5th 562, 580 [the Chapman standard applies both to "alternative-theory error" (i.e., instruction on multiple theories of guilt, one of which is legally erroneous) and to other errors involving the omission or misdescription of elements of a charged offense].)
2. The Kill Zone Theory
Like first degree premeditated murder, attempted murder requires evidence of express malice-implied malice is insufficient. (People v. Lee (2003) 31 Cal.4th 613, 623.) However, the doctrine of transferred intent does not apply to attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 331.) Therefore, "[w]hen a single act is charged as an attempt on the lives of two or more persons, the intent to kill element must be examined independently as to each alleged attempted murder victim." (People v. Canizales (2019) 7 Cal.5th 591, 602 (Canizales).)
Although the intent to kill a specific target does not transfer to an unintended surviving victim, it does not preclude a finding that the assailant concurrently intended to kill others. In one scenario, an assailant may fire indiscriminately into a crowd of people, intending to kill anyone who gets caught in the hail of bullets. (See People v. Thompkins (2020) 50 Cal.App.5th 365, 396, disapproved on other grounds by In re Lopez, supra, 14 Cal.5th at p. 584.) In the second scenario, the assailant may have the intention to eliminate a specific target by intending to kill all individuals in close proximity to the intended target. (See Canizales, supra, 7 Cal.5th at p. 603.) This is the so-called "kill zone" theory. (Id. at p. 596.)
Under a kill zone theory, "a shooter may be convicted of multiple counts of attempted murder on a 'kill zone' theory where the evidence establishes that the shooter used lethal force designed and intended to kill everyone in an area around the targeted victim (i.e., the 'kill zone') as the means of accomplishing the killing of that victim." (People v. Smith (2005) 37 Cal.4th 733, 745-746, discussing People v. Bland, supra, 28 Cal.4th at pp. 329-330].)
For the kill zone theory to apply, the trier of fact must conclude: "(1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm - that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death - around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm." (Canizales, supra, 7 Cal.5th at p. 607; People v. Mumin (2023) 15 Cal.5th 176, 197, quoting the Fourth District Court of Appeal in People v. Mumin (2021) 68 Cal.App.5th 36, 52 [" 'if the evidence supports a reasonable inference of the [defendant's] requisite intent, it necessarily follows that the jury could find it was the only reasonable inference' "].)
Our Supreme Court set forth several factors for the jury to consider in determining whether the defendant intended to create a kill zone, as well as the scope of that zone, including: "the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target." (Canizales, supra, 7 Cal.5th at p. at p. 607.)
However, as our Supreme Court has emphasized, "trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory." (Canizales, supra, 7 Cal.5th at p. 608; see also, People v. Medina (2019) 33 Cal.App.5th.146, 156 ["[a] kill zone instruction is never required, and as numerous appellate cases attest, giving such an instruction can often lead to error"].) "Trial courts should [therefore] provide [this] instruction to the jury only in those cases where the court concludes there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm." (Canizales, supra, 7 Cal.5th at p. 608.)
" '[I]n a kill zone case, the defendant has a primary target and reasons [that] he cannot miss that intended target if he kills everyone in the area in which the target is located. In the absence of such evidence, the kill zone instruction should not be given.'" (Id. at p. 607, quoting People v. Medina, at p. 156.) Thus, the "use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction." (Canizales, at p. 608, second italics added.)
By way of several illustrative examples, People v. Medina, supra, 33 Cal.App.5th 146 discussed when a kill zone theory instruction may be improper: "a kill zone instruction is not appropriate where a defendant fires a deadly weapon into a group of individuals with the intent to kill but without a primary target. Nor, in the absence of a primary target, is a kill zone instruction appropriate even if the defendant intends to kill everyone in that group. Where there is no primary target, there is no concurrent intent and no basis for a kill zone instruction." (Id. at p. 156, citing People v. Stone (2009) 46 Cal.4th 131, 138-140.)
C. Reliance Upon the Kill Zone Theory
Espinoza contends the kill zone theory instruction was improper because there was insufficient evidence from which the jury could conclude that Nick was the primary target. For the kill zone theory to apply, there must be evidence of a primary target. (See Canizales, supra, 7 Cal.5th at p. 608 ["[w]hen the kill zone theory is used to support an inference that the defendant concurrently intended to kill a nontargeted victim, ... evidence of a primary target is required"]; see also People v. Cardenas (2020) 53 Cal.App.5th 102, 118 ["without a primary target, the kill zone theory is categorically inapplicable"].)
The evidence adduced at trial supports the conclusion that Espinoza intended to kill Nick." 'The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill." '" (People v. Smith, supra, 37 Cal.4th at p. 741.) However, the record is inconclusive as to whether Nick was the primary target, or if he was just one of the intended targets.
Canizales instructs that for the kill zone theory to apply, "the circumstances of the defendant's attack on a primary target [must be] such that the only reasonable inference is that the defendant intended to create a zone of fatal harm-that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death." (Canizales, supra, 7 Cal.5th at p. 607, italics added.) Thus, a kill zone instruction has been found inappropriate where the assailant kills the intended target and then turns his or her gun on any secondary targets. Such a scenario evinces a direct intent to kill all victims rather than an intent to kill a primary target by means of killing anyone within the immediate zone of harm. (See, e.g., People v. Mariscal (2020) 47 Cal.App.5th 129, 139.)
Due to the inconclusive state of the record, we are unable to conclude that Espinoza primarily targeted Nick and that Espinoza intended to create a zone of fatal harm as a means of killing Nick. For the reasons discussed below, there was insufficient evidence to support the prosecutor's reliance upon the kill zone theory.
3. There is Insufficient Evidence of a Primary Target
To summarize, the evidence adduced at trial showed that Espinoza was standing next to the driver's side of T.N.'s stolen Highlander, which had stopped ahead of Nick and P.Q. Espinoza exited the vehicle and pointed a gun at both boys, demanding their belongings.
Nick turned and ran back towards the house. P.Q. initially froze when he saw the gun. He followed Nick moments later. Within seconds, P.Q. heard gunshots. P.Q. ducked down between two cars parked in the driveway of the home. Although he heard multiple shots fired, he did not see the shooting occur.
Based upon the photographs of the crime scene, P.Q. was within five to 10 feet from Nick, separated from him by one of the vehicles parked in the driveway. P.Q. was positioned to the left of the bullet or fragment marks on the garage door. But, because the record does not show the vantage point from where Espinoza was shooting, or how far away the boys were from one another or from Espinoza when the shooting commenced, we cannot confidently conclude that Nick was the primary target.
We acknowledge that photographs depicting the crime scene reveal discernible bullet or fragment marks on the garage door, which could have tracked the direction of where Nick was running. However, since P.Q. was following Nick at one point during the shooting, this evidence does not necessarily suggest Espinoza was primarily targeting Nick. Both boys may have been in Espinoza's line of fire when the shooting began.
Notably absent from the record is any discernable reason why Espinoza would target Nick specifically. Both Nick and P.Q. were witnesses to the attempted robbery, both refused to comply with Espinoza's demand for their belongings, and both boys were fleeing when Espinoza began shooting. These are the only plausible motives for the shooting. Under the circumstances, the more likely scenario is that Espinoza was targeting both Nick and P.Q.
While it is the jury that must be persuaded of the defendant's guilt beyond a reasonable doubt and not the reviewing court (see People v. Kraft (2000) 23 Cal.4th 978, 1054), the available evidence does not sufficiently support the conclusion that Nick was the primary target. In light of the undeveloped record, we conclude that the prosecutor erred by relying upon the kill zone theory to support the attempted murder of P.Q. as charged in count 5.
4. Prejudice
For factually unsupported but legally correct instructions, we may reverse only when the record "affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (Guiton, supra, 4 Cal.4th at p. 1130.) However, "[i]nstructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict." (People v. Chun, supra, 45 Cal.4th 1172, 1201.)
Espinoza asserts that the heightened test for prejudice applies because the instruction given to the jury, CALCRIM No. 600, failed to accurately explain the kill zone theory of liability for attempted murder. According to Espinoza, the instruction failed to require that the jury find "the lethal force [used] was designed and intended to kill everyone in the area around the primary target." (See In re Sambrano (2022) 79 Cal.App.5th 724, 733, disapproved on other grounds by People v. Mumin, supra, 15 Cal.5th 176, 209, fn. 11 [observing that CALCRIM No. 600, which was revised following Canizales, may confuse the jury because it does not clearly state that it must find "an intent to kill the primary target by killing everyone in the kill zone" (italics added)].) Espinoza acknowledges that although the prosecutor accurately described a kill zone in her comments in closing argument, she failed to explain that the jury must find the defendant intended to kill everyone in the kill zone as a means of ensuring the elimination of the primary target.
We review de novo whether jury instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) The test is" 'whether there is a "reasonable likelihood" that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of [the] trial, and the arguments of counsel.'" (People v. Fiu (2008) 165 Cal.App.4th 360, 370.) No such likelihood appears upon this record.
The jury instruction given clearly set forth the requirement that there be a primary target for application of the kill zone theory, it defined a "kill zone," and it explained that the kill zone theory only applied if Espinoza "intended to kill Nicholas Kauls but also either intended to kill [P.Q.] or intended to kill everyone within the kill zone."
The pattern instruction is perhaps not a model of clarity as it could more clearly explain that the jury must find the assailant intended to kill everyone within the kill zone "as a means of killing the primary target." (See In re Sambrano, supra, 79 Cal.App.5th at p. 732, italics added.) However, any confusion on this point was reasonably resolved by inclusion of the following language within the instruction: "If you have a reasonable doubt whether the defendant intended to kill [P.Q.], or intended to kill Nicholas Kauls, by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of [P.Q.]." (Italics added.) We therefore conclude that CALCRIM No. 600, as given here, did not misstate the law on the kill zone theory of attempted murder liability.
In Canizales, not only did the evidence fail to support the prosecutor's reliance upon the kill zone theory, the jury instructions did not define a "kill zone." (Canizales, supra, 7 Cal.5th at p. 613.) The prosecutor "substantially aggravated the potential for confusion" when she described the kill zone as an area where people "can get killed" (id. at p. 613) and equated the kill zone with conscious disregard for life or implied malice (id. at p. 614). She specifically told the jury:" '[i]f they're [(an assailant)] shooting at someone and people are within the zone that they can get killed, then you're responsible for attempted murder as to the people who are within the zone of fire.'" (Id. at p. 601.)
As distinct from Canizales, the instruction given here defined the kill zone. And, neither the instruction nor the prosecutor's statements in closing argument "had the potential to mislead the jury to believe that the mere presence of a purported victim in an area in which he or she could be fatally shot is sufficient for attempted murder liability under the kill zone theory." (Canizales, supra, 7 Cal.5th at p. 614; In re Loza (2018) 27 Cal.App.5th 797, 805 ["Under Chapman, we also take particular note of a prosecutor's closing arguments"].) Rather, the prosecutor explicitly stated that the kill zone is "an area where the defendant uses lethal force and it was designed to kill everyone in that area around the primary target." Although this explanation fails to explain that the use of lethal force is designed to kill everyone around the primary target as a means of killing that target, the jury instruction given made this sufficiently clear.
Finding no error implicating the heightened test for prejudice in Chapman, we apply People v. Watson, supra, 46 Cal.2d 818, in light of our conclusion that the kill zone theory was not supported by the evidence adduced at trial. Under People v. Watson, we ask whether it is reasonably probable the jury would have reached a result more favorable to defendant had the kill zone instruction not been given or whether the record affirmatively demonstrates a reasonable probability that the jury found defendant guilty based solely on the kill zone theory. (See Guiton, supra, 4 Cal.4th at p. 1130.)
The record lacks any affirmative indication that the jury in fact relied upon the kill zone theory in finding Espinoza guilty of the attempted murder of P.Q. Further, based upon the evidence adduced at trial, we have no doubt the jury would have convicted Espinoza of the attempted murder of P.Q. had the kill zone theory not been relied upon.
The evidence suggests that Espinoza was targeting both Nick and P.Q., rather than attempting to kill P.Q. in an effort to ensure the death of Nick. Espinoza began shooting as the boys fled, from a distance that was close enough to give him the precision to hit Nick, a moving target, in the back of the head. Espinoza had no motive to kill either Nick or P.Q., except for the fact that they were eyewitnesses to the robbery and they refused to comply with his demands. The circumstances of the shooting, including the likely motive and the fact that Espinoza fired two shots from a close proximity as the boys fled, suggests that Espinoza acted with the direct intent to kill both Nick and P.Q. (People v. Smith, supra, 37 Cal.4th at p. 742 ["the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice"].) We therefore reject Espinoza's claim of prejudicial error resulting from the prosecutor's reliance upon the kill zone theory.
III. Challenge to Application of the Special Circumstance Under the Eighth Amendment
Espinoza contends that the special circumstance allegation was applied without narrowing, a constitutional requirement. According to Espinoza, "[b]ecause the [CALCRIM] instructions, as given, did not convey the optional incidental-felony exception, there was actually no difference at all between first-degree felony murder and the felony-murder special circumstance, meaning that the much more severe punishment of LWOP may be based upon nothing more than personally committing a first-degree felony murder."
"To pass constitutional muster, a capital sentencing scheme must 'genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.' [Citations.] Under the capital sentencing laws of most States, the jury is required during the sentencing phase to find at least one aggravating circumstance before it may impose death. [Citations.] By doing so, the jury narrows the class of persons eligible for the death penalty according to an objective legislative definition." (Lowenfield v. Phelps (1988) 484 U.S. 231, 244.)
Espinoza acknowledges that his claim has been repeatedly rejected by our Supreme Court. (See, e.g., People v. Pollock (2004) 32 Cal.4th 1153, 1196 [" 'The special circumstances listed in section 190.2 adequately narrow the class of murders for which the death penalty may be imposed"]; People v. Anderson (1987) 43 Cal.3d 1104, 1147-1148 ["by making the felony murderer but not the simple murderer death-eligible, a death penalty law furnishes the 'meaningful basis [required by the Eighth Amendment] for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not' "]; People v. Reed (2018) 4 Cal.5th 989, 1018 [reaffirming "state's death penalty scheme does not violate the federal Constitution by failing to sufficiently narrow the class of offenders eligible for the death penalty"].)
Although these cases address death-eligibility specifically, we have no doubt that if a sentence of death under section 190.2 meets the Eighth Amendment's narrowing requirement, that a sentence of life without parole imposed under this same statute does as well. (See People v. Redd (2010) 48 Cal.4th 691, 756 [special-circumstance statute adequately serves narrowing function]; People v. Ochoa (2001) 26 Cal.4th 398, 458-459 [same]; People v. Kraft, supra, 23 Cal.4th at p. 1078 [same].)
Acknowledging that these decisions are binding upon this court (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), Espinoza raises this issue to preserve his claim for purposes of exhausting his state law remedies. The issue is preserved.
Binding precedent notwithstanding, we find unpersuasive Espinoza's attempt to recast his challenge to the jury instruction on the special circumstance allegation as an Eight Amendment violation. To begin, his argument rests upon a faulty premise, i.e., that the bracketed "merely incidental" language within CALCRIM No. 730 was required based upon the evidence adduced at trial, and that the omission of this language somehow compounded the nature of the purported error here.
As discussed in part II, ante, however, there was insufficient evidence showing that the robbery was merely incidental to the murder of Nick. (See People v. Valdez, supra, 32 Cal.4th at pp. 113-114 [while not required in every case, the incidental felony exception must be provided when supported by evidence].) Rather, the evidence presented at trial led to only one conclusion: Espinoza murdered Nick to advance an "independent felonious purpose," i.e., robbery. (See Green, supra, 27 Cal.3d at p. 118.)
As Espinoza observes, when the bracketed portion of CALCRIM No. 730 does not apply-because there is no evidence from which the jury could infer that the commission of a section 190.2 felony was merely incidental to a murder-the instruction on felony murder and the robbery-murder special circumstance are identical. However, that does not render a resulting sentence of LWOP or even death constitutionally infirm.
Our Supreme Court has repeatedly authorized "use of a felony to qualify a defendant both for first degree murder and for a special circumstance." (People v. Taylor (2001) 26 Cal.4th 1155, 1183.) In so doing, the court has explicitly held that such a practice does not violate the Eight Amendment. (See, People v. Catlin (2001) 26 Cal.4th 81, 158 ["first degree murder liability and special circumstance findings may be based upon common elements without offending the Eighth Amendment"]; see also, Lowenfield v. Phelps, supra, 484 U.S. at p. 246 ["the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this [death] sentence constitutionally infirm"]; see, e.g., People v. Johnson (2016) 62 Cal.4th 600, 636 ["the amended lying-in-wait special circumstance would satisfy federal constitutional requirements for death eligibility even were the amendment to have made the special circumstance identical to lying-in-wait first degree murder"].)
We therefore reject Espinoza's claim that the robbery-murder special circumstance was unconstitutional as applied here. The bracketed "merely incidental" language within CALCRIM No. 730 was not required since there was no evidence that the attempted robbery was merely incidental to the murder of Nick. Moreover, the fact that the felony murder and robbery-murder special circumstance instructions were identical does not render Espinoza's resulting LWOP sentence unconstitutional. "As our Supreme Court has made clear, overlapping culpability and special circumstance elements-even identical ones-do not offend the Eighth Amendment." (People v. Wilkins (2021) 68 Cal.App.5th 153, 165.) Espinoza's assertion to the contrary is meritless.
Espinoza also perfunctorily claims that a sentence of LWOP as applied to him, a 19-year-old convicted of felony murder, is "arbitrary and unconstitutional." He does not specifically assert that individualized sentencing is required when a youthful offender is subject to an LWOP sentence. (See, Miller v. Alabama (2012) 567 U.S. 460, 477 (Miller) [by analogizing LWOP sentences applied to juveniles to capital punishment, which requires individualized sentencing, "Graham indicates that a similar rule should apply when a juvenile confronts a sentence of life (and death) in prison"].) Due to his failure to adequately develop his argument, we conclude that he has forfeited his claim. (See In re Groundwater Cases (2007) 154 Cal.App.4th 659, 690, fn. 18 [failure to present a sufficiently developed argument supported with citations to legal authority results in forfeiture of issue on appeal]; Cal. Rules of Court, rule 8.883(a)(1)(A) [appellate briefs must state each point under a separate heading].)
IV. The Exclusion of Youthful Offenders Sentenced to LWOP from Parole Consideration Under Section 3051 and the Equal Protection Clause
Espinoza was 19 years old at the time of his commitment offenses. Since the prosecutor did not seek the death penalty, he received a mandatory sentence of LWOP for the robbery-murder special circumstance. (See § 190.2, subd. (a).)
Under section 3051, juvenile offenders (those under the age of 18) who commit special circumstance murder and receive a prison term of LWOP are entitled to parole consideration after their 25th year of incarceration. (See § 3051, subd. (b)(4).) However, youthful offenders (those between the ages of 18 and 25 years old) who commit the same crime and receive the same sentence are statutorily excluded from parole consideration. (See § 3051, subd. (h).)
Section 3051 also denies youth offender parole consideration to youthful offenders sentenced to LWOP, while granting parole consideration to youthful offenders serving de facto LWOP sentences for first degree murder. Espinoza challenges section 3051's exclusion of youthful offenders serving LWOP sentences from youth offender parole consideration on equal protection grounds, claiming he is similarly situated to the groups identified above, and that the state lacks a rational basis for excluding him from parole consideration under section 3051.
The constitutionality of section 3051's exclusion of youthful offenders sentenced to LWOP is currently pending before our Supreme Court. (See People v. Hardin (2022) 84 Cal.App.5th 273, review granted Jan. 11, 2023, S277487 (Hardin).) While we believe Espinoza's equal protection claim raises a substantial question as to whether section 3051's exclusion of youthful offenders sentenced to LWOP is constitutional, our Supreme Court is poised to address this issue. In the interim, we will deny Espinoza's equal protection claim.
A. Forfeiture
The Attorney General asserts that Espinoza has forfeited his constitutional challenge to section 3051 based upon his failure to raise the issue in the trial court below. Where an issue presents a pure question of law upon undisputed facts, particularly where a constitutional question is involved, we have discretion to address it. (See People v. Heard (2022) 83 Cal.App.5th 608, 626.) We exercise our discretion to address the merits of Espinoza's constitutional challenge.
B. Background: Section 3051 and Youthful Offenders Sentenced to LWOP
The Eighth Amendment of the federal Constitution prohibits juvenile offenders that commit nonhomicide crimes from being sentenced to LWOP, or prison sentences that are the functional equivalent thereof. (Graham v. Florida (2010) 560 U.S. 48 (Graham); People v. Caballero (2012) 55 Cal.4th 262, 268 [holding that a juvenile offender sentenced to a term that exceeds their expected life violates the Eight Amendment].)
The United States Supreme Court explained, "As compared to adults, juveniles have a' "lack of maturity and an underdeveloped sense of responsibility" '; they 'are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure'; and their characters are 'not as well formed.'" (Graham, supra, 560 U.S. at p. 68, quoting Roper v. Simmons (2005) 543 U.S. 551, 569-570.) "[T]hose findings -of transient rashness, proclivity for risk, and inability to assess consequences - both lessened a child's 'moral culpability' and enhanced the prospect that, as the years go by and neurological development occurs, ...' "deficiencies will be reformed." '" (Miller, supra, 567 U.S. at p. 472, quoting, Roper v. Simmons, at p. 570.)
In light of the fundamental differences between juvenile and adult minds, the Miller court held that sentencing schemes which impose mandatory LWOP sentences upon juveniles who have committed homicide are unconstitutional. Although Graham's categorical ban on life without parole sentences for juvenile offenders "applied only to nonhomicide crimes," (Miller, supra, 567 U.S. at p. 473) the Miller court observed that "none of what [Graham ] said about children-about their distinctive (and transitory) mental traits and environmental vulnerabilities-is crime-specific." (Ibid.)
In response to these decisions and developments in neuroscience research, the Legislature has since enacted several statutes that grant youthful offenders, those 25 years old and younger at the time of their "controlling offense," parole consideration after 15, 20, or 25 years in prison, depending on the sentence they received. (See § 3051, subds. (a) &(b).) The Legislature chose to include young adult offenders under the age of 26 within section 3051's parole eligibility provisions "to account for neuroscience research that the human brain-especially those portions responsible for judgment and decisionmaking-continues to develop into a person's mid-20s." (People v. Edwards (2019) 34 Cal.App.5th 183, 198; see Sen. Com. on Public Safety, Analysis of Sen. Bill No. 261 (2015-2016 Reg. Sess.) Apr. 28, 2015, p. 3 [granting parole eligibility to those whose commitment offenses occurred before the age of 23]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.), as amended Mar. 30, 2017, Apr. 25, 2017, p. 2 [expanding youth offender parole eligibility to offenders under the age of 25 at the time of their commitment offense].)
In so doing, the Legislature explicitly recognized that developments in neuroscience and psychology show that the prefrontal cortex, the part of the brain responsible for "attention, complex planning, decision making, impulse control, logical thinking, organized thinking, personality development, risk management, and short-term memory," does not reach cognitive maturity until the age of 25 years.'" It observed that" '[t]hese functions are highly relevant to criminal behavior and culpability.'" (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.) as amended Mar. 30, 2017.)
Despite our Legislature's recognition that youth offenders are developmentally different, the Legislature chose to draw a line for parole eligibility based upon an offender's age, crime, and sentence. Section 3051, subdivision (h) excludes certain classes of offenders from a parole consideration hearing, stating: "[t]his section shall not apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or Section 667.61, or to cases in which an individual is sentenced to life in prison without the possibility of parole for a controlling offense that was committed after the person had attained 18 years of age."
As relevant here, young adult offenders serving a de facto term of LWOP for first degree murder are entitled to youth offender parole consideration under section 3051, but youth offenders sentenced to an actual term of LWOP are not. A growing minority of justices have invited our Legislature to consider the constitutionality of excluding young adult offenders sentenced to LWOP from section 3051's youth offender parole provisions. (See In re Jones (2019) 42 Cal.App.5th 477, 483 (conc. opn. of Pollak, J., joined by Streeter, J.); see also, People v. Montelongo (2020) 55 Cal.App.5th 1016, 1035 (conc. opn. of Segal, J.) (Montelongo).)
In Montelongo, Justice Segal authored a concurring opining stating that "a juvenile offender's eligibility for a youthful parole hearing should not hinge on the crime he or she committed, the statute under which the prosecutor elected to charge him or her, or the sentence mandated by statute. None of those factors is relevant to determining whether a young adult offender is irreparably corrupt." (Montelongo, supra, 55 Cal.App.5th at p. 1041 (conc. opn. of Segal, J.).) In a concurring statement in the denial of a petition for review filed in Montelongo, Justice Goodwin Liu agreed with Justice Segal. He opined that section 3051's exclusion of young adult offenders sentenced to LWOP "stands in 'tension' with Miller ..." and there is a colorable claim that it violates equal protection and the Eighth Amendment. (Montelongo, supra, 55 Cal.App.5th 1016, 1041a (conc. statement of Liu, J.) Justice Liu further observed that given advances in neuroscientific research and our understanding of the development of the human brain, even young adult offenders" 'who commit heinous crimes are capable of change.'" (Id. at p. 1041c (conc. statement of Liu, J.).)
Justice Liu reiterated his concerns about the constitutionality of section 3051 in another concurring statement denying a petition for review filed in People v. Jackson (2021) 61 Cal.App.5th 189, 202 (conc. statement of Liu, J.). There, he noted that "at least 11 justices of the Court of Appeal have called for legislative reconsideration of section 3051." (Id. at p. 202b (conc. statement of Liu, J.).)
As if the date of the filing of this opinion, only one appellate court has garnered a majority opining finding that section 3051's exclusion of young adult offenders serving a term of LWOP violates the equal protection clause. (See People v. Hardin, supra, 84 Cal.App.5th 273.) Every other appellate court to have considered the issue has upheld the constitutionality of section 3051's exclusion of young adult offenders sentenced to LWOP from youth offender parole consideration. (See People v. Sands (2021) 70 Cal.App.5th 193, 204-205; People v. Morales (2021) 67 Cal.App.5th 326, 347-349; People v. Jackson, supra, 61 Cal.App.5th at pp. 199-200; People v. Acosta (2021) 60 Cal.App.5th 769, 778 (Acosta) [finding that although the defendant, who was 21 at the time of the offenses and was sentenced to LWOP was "similarly situated" to offenders who were granted parole under section 3051, his age and the severity of his crime supplied a rational basis for his exclusion from section 3051]; In re Williams (2020) 57 Cal.App.5th 427, 435 ["While a 21-year-old special circumstance murderer may, in fact, have diminished culpability compared with a 28 year old who commits the same crime, he is nonetheless more culpable and has committed a more serious crime than a 21 year old convicted of a nonspecial circumstance murder"]; People v. Ngo (2023) 89 Cal.App.5th 116, 126, review granted May 17, 2023, S279458 [upholding the use of a special circumstance finding as "a bright-line test of culpability"].)
C. Standard of Review
"The California equal protection clause offers substantially similar protection to the federal equal protection clause." (People v. Laird (2018) 27 Cal.App.5th 458, 469.) "The equal protection clause requires the state to treat all persons similarly situated alike or, conversely, to avoid all classifications that are 'arbitrary or irrational' and those that reflect' "a bare ... desire to harm a politically unpopular group." '" (Legg v. Department of Justice (2022) 81 Cal.App.5th 504, 510, citing City of Cleburne v. Cleburne Living Ctr., Inc. (1985) 473 U.S. 432, 446, 447.)
"When no suspect class and no fundamental right is implicated, '[i]n order to decide whether a statutory distinction ... is unconstitutional as a matter of equal protection, we typically ask two questions. We first ask whether the state adopted a classification affecting two or more groups that are similarly situated in an unequal manner. [Citation.] If we deem the groups at issue similarly situated in all material respects, we consider whether the challenged classification ultimately bears a rational relationship to a legitimate state purpose. [Citation.] A classification in a statute is presumed rational until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable. [Citations.] The underlying rationale for a statutory classification need not have been" 'ever actually articulated'" by lawmakers, and it does not need to" 'be empirically substantiated.'" [Citation.] Nor does the logic behind a potential justification need to be persuasive or sensible - rather than simply rational.'" (People v. Ngo, supra, 89 Cal.App.5th at pp. 122-123, quoting People v. Chatman (2018) 4 Cal.5th 277, 289.)
This so-called "rational basis" scrutiny is exceedingly deferential: "the 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.'" (People v. Turnage (2012) 55 Cal.4th 62, 74-75.)
"To mount a successful rational basis challenge, a party must' "negative every conceivable basis"' that might support the disputed statutory disparity." (People v. Edwards (2019) 34 Cal.App.5th 183, 195-196, quoting Heller v. Doe (1993) 509 U.S. 312, 320.) "If a plausible basis exists for the disparity, '[e]qual protection analysis does not entitle the judiciary to second-guess the wisdom, fairness, or logic of the law.'" People v. Edwards, at pp. 195-196, quoting People v. Turnage, supra, 55 Cal.4th at p. 74.)
We review Espinoza's equal protection claim de novo. (People v. Laird, supra, 27 Cal.App.5th at p. 469.)
D. Analysis
1. Disparate Treatment of Youthful Offenders and Juveniles Sentenced to LWOP
Espinoza initially contends that his LWOP sentence violates equal protection since individuals under the age of 18 are entitled to youth offender parole consideration, while he, as a 19 year old, is denied parole consideration. We disagree.
In People v. Flores (2020) 9 Cal. 5th 371 at page 429, our Supreme Court upheld an appellant's constitutional challenge to the death penalty as it applies to those under the age of 21 at the time of their crime. The court recognized that research shows youths ages 18 to 21 share many of the same cognitive and developmental deficiencies as adolescents under age 18. Nonetheless, it concluded"' "[the] age of 18 is the point where 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." '" (Id. at p. 429, quoting People v. Powell (2018) 6 Cal.5th 136, 191-192.) If the death penalty remains constitutional as applied to a 19-year-old offender, we have no doubt that a sentence of life without the possibility of parole is constitutional as well. (See Graham, supra, 560 U.S. at pp. 74-75 [the federal Constitution draws the line at age 18.)
Espinoza fails to present a compelling argument or evidence which would support a departure from this established precedent. We therefore conclude that section 3051's disparate treatment of juveniles sentenced to LWOP and youth offenders' sentenced to LWOP does not violate equal protection.
2. Disparate Treatment of Youthful Offenders Sentenced to De Facto LWOP Sentences for First Degree Murder and Youthful Offenders Sentenced to Actual LWOP Sentences for Special Circumstance Murder
Espinoza further challenges his exclusion from youth offender parole consideration based upon the fact that those serving de facto life sentences for first degree murder are eligible for parole consideration, whereas those serving actual sentences of LWOP for special circumstance murder are statutorily ineligible. We conclude that although these groups are similarly situated for purposes of section 3051, the Legislature has a rational basis to treat the former group differently from the latter. Consequently, section 3051's exclusion of those serving actual sentences of LWOP from section 3051's parole eligibility provisions does not violate equal protection.
3. Similarly Situated
"' "This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.'" '" (People v. Ngo, supra, 89 Cal.App.5th at p. 125, quoting People v. Brown (2012) 54 Cal.4th 314, 328.) "[W]here a facial classification is challenged there will always be differences between two groups." (People v. Jackson, supra, 61 Cal.App.5th at p. 201 (conc. opn. of Dato, J.) The question is "whether distinctions between the two groups justify the unequal treatment." (People v. Nguyen (1997) 54 Cal.App.4th 705, 715.)
Youth offenders who are sentenced to an actual LWOP sentence and youth offenders who are sentenced to a de facto term of LWOP for first degree murder are similarly situated for purposes of section 3051. The only distinction between these two groups, for purposes of section 3051, is a special circumstance finding which triggered application of an LWOP sentence, a mandatory sentence in noncapital cases.
However, whether a youth offender is sentenced to LWOP hinges on factors that are not necessarily relevant to whether they are "irreparably corrupt," such as "the statute under which the prosecutor elected to charge him or her, or the sentence mandated by statute." (Montelongo, supra, 55 Cal.App.5th at p. 1041 (conc. opn. of Segal, J.).)
More importantly, as Miller observes, the mitigating attributes of youth are not "crime-specific." (Miller, supra, 567 U.S. at p. 473; Roper v. Simmons, supra, 543 U.S. at p. 573 ["It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption."]; Graham, supra, 560 U.S. at p. 68, quoting Roper v. Simmons, at p. 570 [the distinct and transitory characteristics of youth mean that a young person's actions "are less likely to be evidence of 'irretrievably depraved character' than are the actions of adults"].) Yet, by drawing a line at parole eligibility based upon the commission of specific crimes which result in LWOP sentences, such as a special circumstance finding, section 3051 implicitly deems youthful offenders convicted of these crimes to be irreparably corrupt. This contravenes everything that Miller has stated about the diminished culpability associated with youth and their heightened capacity for change.
Based upon the foregoing, we conclude that these two groups-youth offenders serving de facto life sentences and those serving de jure sentences-are similarly situated for purposes of parole eligibility under section 3051.
E. Rational Basis
There is currently a split of authority among the California appellate courts as to whether section 3051 violates the Equal Protection Clause based upon the statutory exclusion of youth offenders sentenced to LWOP from parole consideration. One line of authority has upheld the constitutionality of section 3051's exclusion of offenders such as Espinoza from youth offender parole consideration under section 3051, even though youth offenders serving a parole eligible term for first degree murder are entitled to parole consideration under the statute. (See In re Williams, supra, 57 Cal.App.5th at pp. 433-436 [concluding that offenders sentenced to LWOP are not similarly situated to young adult offenders sentenced to parole-eligible life terms for murder]; Acosta, supra, 60 Cal.App.5th at p. 780 [finding these groups are similarly situated, but that there is a rational basis to distinguish between a young adult offender serving LWOP and a young adult offender serving a parole-eligible life term based upon the severity of the crimes committed]; People v. Jackson, supra, 61 Cal.App.5th at p. 199 [explaining that a rational basis exists for distinguishing between these two groups because a special circumstance finding shows that the "murder was in some manner aggravated or reflected a greater risk of harm to persons other than the immediate murder victim or victims"]; People v. Sands, supra, 70 Cal.App.5th at p. 204 [same]; People v. Morales, supra, 67 Cal.App.5th at pp. 347-349 [same].)
Our Supreme Court is poised to resolve this question, having granted review in People v. Hardin. In the interim, we agree with our colleagues' analysis in Acosta finding that the Legislature has judged section 190.5 crimes" 'to be more severe and more deserving of lifetime punishment than nonspecial circumstance first degree murder.'" (Acosta, supra, 60 Cal.App.5th at p. 780.) "In excluding LWOP inmates from youth offender parole hearings, the Legislature reasonably could have decided that youthful offenders who have committed such crimes-even with diminished culpability and increased potential for rehabilitation-are nonetheless still sufficiently culpable and sufficiently dangerous to justify lifetime incarceration." (Ibid.; see also, Tison v. Arizona (1987) 481 U.S. 137, 157 ["some nonintentional murderers may be among the most dangerous and inhumane of all" such as "the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property"].)
We acknowledge that this distinction is not entirely logical. Regardless of his motivation for the crime, Espinoza shot 17-year-old Nick, who was unarmed, as he fled. The circumstances of the murder were egregious, such that if Espinoza had not attempted to commit robbery, its severity would remain unchanged. Yet, if Espinoza had embarked on his crime spree to kill at random, and assuming he had never attempted to rob Nick and P.Q., he would be statutorily entitled to a meaningful opportunity for release after his 25th year of incarceration.
The mere fact that the murder was committed during an attempted robbery categorically deems him to be irreparably corrupt, a distinction reserved for all but the rarest offender. (See Roper v. Simmons, supra, 543 U.S. at p. 573.) As Miller cautioned however the mitigating attributes of youth are not" 'crime specific.'" (Miller, supra, 567 U.S. at p. 473.)
Rational basis review is however highly deferential. Under this test,"' "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 statutes might apply.'" (People v. Ngo, supra, 89 Cal.App.5th at p. 126.)
The Legislature has chosen to draw a line for youth offender parole consideration at LWOP sentences, which our Legislature has judged to be some of the most severe crimes on the spectrum of culpability." 'Such line drawing is the province of legislative bodies, and "the precise coordinates of the resulting legislative judgment [are] virtually unreviewable, since the [L]egislature must be allowed leeway to approach a perceived problem incrementally.'" (Doe v. Finke (2022) 86 Cal.App.5th 913, 927, quoting (California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177, 210.) Giving due deference to the Legislature's judgment, we conclude that section 3051's exclusion of youth offenders sentenced to LWOP withstands rational basis scrutiny.
LWOP sentences apply to special circumstance murder, as well as a few select nonhomicide offenses. (See, e.g., §§ 209, subd. (a) [kidnapping resulting in death or bodily harm]; 667.61, subds. (j)(1) [aggravated sex crimes], (1); 667.7, subd. (a)(2) [the commission of a specified felony after having served three or more prior prison terms].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DETJEN, Acting P. J. MEEHAN, J.