Opinion
F086089
04-26-2024
THE PEOPLE, Plaintiff and Respondent, v. JOE NUNEZ, JR., Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. CF82286864, Arlan L. Harrell, Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
INTRODUCTION
This case returns to this court following a remand for corrections to the judgment of commitment and sentencing minute order. (See People v. Nunez (Apr. 7, 2022, F081998) [nonpub. opn.] (Nunez).) Although defendant Joe Nunez, Jr., did not, on remand, request an evidence preservation proceeding for purposes of preserving evidence for use at a future youth offender parole hearing (Pen. Code, §§ 1203.01, 3051; In re Cook (2019) 7 Cal.5th 439 (Cook); People v. Franklin (2016) 63 Cal.4th 261 (Franklin)), he now contends section 3051 violates equal protection by excluding him from youth offender parole eligibility, while affording such opportunity to other individuals who defendant contends are similarly situated.
Undesignated statutory references are to the Penal Code.
During the pendency of this appeal, our Supreme Court issued its decision in People v. Hardin (2024) 15 Cal.5th 834, 839 (Hardin), which holds that section 3051 does not violate equal protection by excluding from youth offender parole eligibility offenders serving life without the possibility of parole (LWOP) terms for crimes committed when they were over the age of 18. We requested supplemental briefing on the effect of Hardin on the issues raised in the instant appeal. The People now contend defendant's argument must be rejected in light of Hardin. Defendant did not file a supplemental brief and the time for doing so has passed.
We agree that Hardin is dispositive of the issues raised in this appeal. Accordingly, we affirm.
We dispense with a statement of facts because the facts underlying defendant's convictions are not relevant to the issues presented on appeal.
"On November 8, 1982, a jury found [defendant] guilty of conspiracy to commit murder for financial gain (§ 182; count I) and first degree murder (§ 187; count II). As to count II, the jury found true the special circumstance the murder was committed for financial gain. (§ 190.2, subd. (a)(1).) The jury found not true the allegation that [defendant] personally used a firearm in the commission of the murder. (§ 12022.5.) In bifurcated proceedings, the court found true the allegation that [defendant] had served a prior prison term for a violent felony. (§§ 667.5, subd. (a), 667.6.)" (Nunez, supra, F081998, fn. omitted.) Defendant was 24 years old when he committed the offenses.
"On January 10, 1983, the court sentenced petitioner to a term of life without the possibility of parole for first degree murder with a special circumstance. For the prior prison term enhancement, the court imposed a three-year term, to be served prior to the life term. The court did not mention count I in its oral pronouncement of sentence. However, the minute order and judgment of commitment to state prison indicates the court imposed a concurrent term of life without the possibility of parole on count I. [¶] On July 10, 1986, this court affirmed the judgment." (Nunez, supra, F081998; see People v. Nunez (1986) 183 Cal.App.3d 214, 217, disapproved on another ground by People v. Palmer (2001) 24 Cal.4th 856, 861, 867.)
Our earlier opinion was partially published; the nonpublished portions of the opinion fall within the exception to the California Rules of Court, rule 8.1115(b)(1). (See People v. Nunez, supra, 183 Cal.App.3d 214; see also id. (July 10, 1986) F002058 [nonpub. opn.].)
"In 2020, petitioner filed a petition for resentencing pursuant to section 1170.95 [now renumbered section 1172.6]. The court summarily denied the petition on the ground petitioner was 'more than a mere participant' in the offense and '[t]he killing resulted from an intentional act with express or implied malice.'" (Nunez, supra, F081998.) On appeal, we affirmed the denial of the petition for resentencing. However, we remanded for the trial court to correct the judgment of commitment and sentencing minute order, as well as the sentence, consistent with our opinion. (Ibid.)
On remand, the court resentenced petitioner. On count II, the court imposed a term of LWOP for the special circumstance murder. On count I, the court imposed a term of 25 years to life, stayed pursuant to section 654. The prior prison term enhancement was stricken. The amended abstract of judgment and sentencing minute order conform to the oral pronouncement of judgment and sentencing.
This timely appeal followed.
DISCUSSION
Under section 3051, a defendant who committed a controlling offense while under the age of 18 and for which he or she was sentenced to LWOP is entitled to parole consideration after his or her 25th year of incarceration. (§ 3051, subd. (b)(4).) Additionally, a defendant who committed a controlling offense while aged 25 or younger and who was sentenced to a determinate term or a term of life with the possibility of parole is entitled to parole consideration no later than his or her 25th year of incarceration. (§ 3051, subd. (b).) However, a young adult who committed a controlling offense while aged 18 or older and for which he or she is sentenced to LWOP is categorically excluded from youth offender parole eligibility. (§ 3051, subd. (h).)
Here, defendant committed special circumstance murder when he was over the age of 18 and, for this offense, he was sentenced to LWOP. It is undisputed that he is statutorily ineligible for a youth offender parole hearing pursuant to section 3051. However, he contends the exclusion of offenders such as himself from youth offender parole eligibility violates the equal protection clauses of both the United States and California Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.)
As such, defendant contends the judgment should be conditionally reversed and modified to "direct that [he] is eligible for youthful-offender parole consideration." However, section 3051 does not alter the judgment. "[S]ection 3051 has changed the manner in which the juvenile offender's original sentence operates by capping the number of years that he or she may be imprisoned before becoming eligible for release on parole. The Legislature has effected this change by operation of law, with no additional resentencing procedure required." (Franklin, supra, 63 Cal.4th at pp. 278-279.)
Hardin upheld the constitutionality of section 3051 against this very same equal protection challenge. (Hardin, supra, 15 Cal.5th at p. 839.) We therefore are compelled to reject defendant's equal protection claim.
I. History of Youth Offender Parole
"In Roper v. Simmons (2005) 543 U.S. 551 (Roper), the high court held that the Eighth Amendment forbids imposing the death penalty for crimes committed before age 18, given the diminished culpability of juveniles relative to adult offenders. (Roper, at p. 575.)" (Hardin, supra, 15 Cal.5th at p. 843.)
Five years later, in Graham v. Florida (2010) 560 U.S. 48, 82 (Graham), the United States Supreme Court held the Eighth Amendment prohibits imposition of an LWOP sentence on juveniles who commit nonhomicide crimes. The 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.' [Citation.] These salient characteristics mean that '[i]t 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.' [Citation.] Accordingly, 'juvenile offenders cannot with reliability be classified among the worst offenders.'" (Graham, at p. 68.) Thus, when a life sentence is imposed on a juvenile, the government must provide him or her with "some realistic opportunity to obtain release before the end of that [life] term." (Id. at p. 82.)
Two years later, in Miller v. Alabama (2012) 567 U.S. 460, 469-480 (Miller), the United States Supreme Court extended this reasoning in part to homicide crimes by holding unconstitutional those sentencing schemes which impose mandatory LWOP sentences upon juveniles who have committed homicide. (Id. at p. 479.) 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." (Id. at p. 473.) Although the imposition of LWOP sentences on juvenile homicide offenders remains permissible under the federal Constitution, such sentences may be imposed only following an individualized determination that takes into account "how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." (Miller, at p. 480.) The high court opined that "appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." (Id. at p. 479.)
Soon thereafter, in People v. Caballero (2012) 55 Cal.4th 262, 268, the California Supreme Court extended the Graham analysis to sentences that are the "functional equivalent of a life without parole sentence," such as a term of 110 years to life. Pursuant to Caballero, the Eighth Amendment requires juvenile offenders sentenced for nonhomicide offenses to the functional equivalent of LWOP to have a" 'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.'" (Caballero, at p. 269.)
To conform California statutory law to this constitutional reality, the California Legislature passed Senate Bill No. 260 (2013-2014 Reg. Sess.), which added sections 3051 and 4801, subdivision (c) to the Penal Code, effective January 1, 2014. Together, these provisions set the deadlines by which certain youth offenders must be given a youth offender parole hearing (§ 3051), and require the Board of Parole Hearings to "give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner" when considering suitability for parole of prisoners who committed their controlling offense at an eligible age (§ 4801, subd. (c)).
"As initially enacted, section 3051 provided youth offender parole hearings only for juvenile offenders incarcerated for crimes committed before the age of 18. (Former § 3051, subd. (a)(1), added by Stats. 2013, ch. 312, § 4.) But it did not include all juvenile offenders; the statute excluded several categories of individuals, including juvenile offenders sentenced to life without possibility of parole. (Former § 3051, subd. (h), added by Stats. 2013, ch. 312, § 4.)" (Hardin, supra, 15 Cal.5th at p. 845.)
"In 2015, the Legislature raised the age of eligibility for youth offender parole hearings to include most young adults incarcerated for offenses committed before the age of 23. (Stats. 2015, ch. 471, § 1.)" (Hardin, supra, 15 Cal.5th at pp. 845-846.) "In 2017, . . . the Legislature once again raised the age cut-off for section 3051 parole hearings, this time to age 25. (Stats. 2017, ch. 675, § 1; see Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.) as amended Mar. 30, 2017, p. 2.)" (Hardin, at p. 846.) Also in 2017, "the Legislature expanded section 3051 to include juvenile offenders sentenced to life without parole, making them eligible for youth offender parole hearings after their 25th year of incarceration. (Stats. 2017, ch. 684, § 1.5, adding § 3051, subd. (b)(4); see Assem. Com. on Public Safety, Analysis of Sen. Bill No. 394 (2017-2018 Reg. Sess.) as amended May 26, 2017, p. 1.)" (Hardin, at p. 845.)
"The expansion to young adults did not, however, include all persons who committed crimes between the ages of 18 and 25: The Legislature carried forward preexisting exclusions, including the exclusion for those sentenced to life in prison without the possibility of parole. (See Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308, supra, as amended Mar. 30, 2017, p. 2.) Similarly, when it expanded the youth offender parole system to include juvenile offenders sentenced to life without parole, the Legislature preserved the life without parole exclusion for youthful offenders who committed their controlling offense after the age of 18. (See Assem. Com. on Public Safety, Analysis of Sen. Bill No. 394, supra, as amended May 26, 2017, p. 1.)" (Hardin, supra, 15 Cal.5th at p. 846.)
In extending the reach of section 3051 to certain young adult offenders under the age of 26, the Legislature's "expressly-stated rationale was 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, citing Sen. Com. on Public Safety, Analysis of Sen. Bill. No. 261 (2015-2016 Reg. Sess.) Apr. 28, 2015 [expanding eligibility to age 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 [expanding eligibility to age 25].) Meanwhile, the Legislature's stated purpose in authorizing youth offender parole hearings for juveniles under 18 and sentenced to LWOP was to "bring California into compliance with the constitutional requirements of Miller and Montgomery [v. Louisiana (2016) 577 U.S. 190]" (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 394 (20172018 Reg. Sess.) Mar. 21, 2017, p. 4.), which held that the rule of Miller must be applied retroactively to cases on collateral review (Montgomery v. Louisiana, at p. 206).
II. Equal Protection Framework
"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; accord, Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) Both guarantee that no person shall be denied equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.)
Until recently, analysis of an equal protection claim had two steps." '" 'The first prerequisite . . . [was] a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.] . . ."' If the groups [were] similarly situated, the next question [was] whether the disparate treatment can be justified by a constitutionally sufficient state interest." (Conservatorship of Eric B. (2022) 12 Cal.5th 1085, 1102, italics omitted; accord, People v. Foster (2019) 7 Cal.5th 1202, 1211-1212.) However, Hardin eliminated the first of these steps for challenges to "laws drawing distinctions between identifiable groups or classes of persons, on the basis that the distinctions drawn are inconsistent with equal protection." (Hardin, supra, 15 Cal.5th at p. 850.) Now, "courts no longer need to ask at the threshold whether the two groups are similarly situated for purposes of the law in question. The only pertinent inquiry is whether the challenged difference in treatment is adequately justified under the applicable standard of review. The burden is on the party challenging the law to show that it is not." (Id. at pp. 850-851.)
"Where, as here, a statute involves neither a suspect class nor a fundamental right, it need only meet minimum equal protection standards, and survive 'rational basis review.'" (People v. Turnage (2012) 55 Cal.4th 62, 74.) "Rational basis review 'sets a high bar' for litigants challenging legislative enactments." (Hardin, supra, 15 Cal.5th at p. 852.) "Under this deferential standard, we presume that a given statutory classification is valid 'until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable.'" (Ibid.) "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. Chatman (2018) 4 Cal.5th 277, 289; accord, Hardin, at p. 852.)" 'If a plausible basis exists for the disparity, courts may not second-guess its" 'wisdom, fairness, or logic.'" '" (Hardin, at p. 852.) The legislation will survive constitutional scrutiny "as long as there is' "any reasonably conceivable state of facts that could provide a rational basis for the classification." '" (People v. Turnage, at p. 74.)
III. Analysis
Defendant contends that, for purposes of section 3051, he is similarly situated to juveniles sentenced to LWOP for special circumstance murder committed before they were 18 years old, and to young adults sentenced to parole-eligible life terms for first degree premeditated murders committed when they were between the ages of 18 and 25. He contends there is no rational basis for treating him differently from these two groups with regard to the youth offender parole process. In light of Hardin, we do not consider whether defendant is similarly situated to others for purposes of section 3051. (Hardin, supra, 15 Cal.5th at pp. 850-851.) The People disagree with defendant's remaining arguments, as do we.
A. Forfeiture
The People assert that defendant has forfeited his constitutional challenge to section 3051 based upon his failure to raise the issue in the trial court. We have discretion to address an issue that presents a pure question of law upon undisputed facts, including a constitutional question. (See People v. Heard (2022) 83 Cal.App.5th 608, 626-627.) We exercise our discretion to address the merits of defendant's constitutional challenge.
B. Juvenile Offenders Sentenced to LWOP
Courts of Appeal have agreed that, for purposes of section 3051, there is a rational basis to distinguish between young adults convicted of special circumstance murder and sentenced to LWOP, such as defendant, and juveniles who committed their controlling offense before they turned 18 years old and are sentenced to LWOP. (E.g., People v. Sands (2012) 70 Cal.App.5th 193, 204; In re Murray (2021) 68 Cal.App.5th 456, 463464; People v. Jackson (2021) 61 Cal.App.5th 189, 196-198; People v. Acosta (2021) 60 Cal.App.5th 769, 779-780.) "The Legislature had a rational basis to distinguish between offenders with the same sentence (life without parole) based on their age. For juvenile offenders, such a sentence may violate the Eighth Amendment. [Citations.] But the same sentence does not violate the Eighth Amendment when imposed on an adult, even an adult under the age of 26.... [T]he Legislature could rationally decide to remedy unconstitutional sentences but go no further." (Sands, at p. 204.)
Hardin holds broadly that the exclusion of young adults sentenced to LWOP from youth offender parole eligibility does not violate equal protection. (Hardin, supra, 15 Cal.5th at p. 839.) However, this precise argument was not raised or addressed in Hardin. (See id. at pp. 840-841.)
We agree that this is a rational basis for distinguishing between different offenders sentenced to LWOP in relation to their eligibility for youth offender parole hearings. Accordingly, the distinction does not violate equal protection.
C. Young Adult Offenders Sentenced to Parole-eligible Life Terms
Hardin holds that it does not violate equal protection to distinguish between young adults sentenced to LWOP for a special circumstance murder and those sentenced to a parole-eligible life sentence for another crime, for purposes of youth offender parole eligibility. (Hardin, supra, 15 Cal.5th at pp. 839, 852-864.) Hardin reasoned that" '[i]t 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.] Life without parole is the most severe sentence of imprisonment in California law, applicable only in cases of special circumstance murder and a small number of other offenses the law regards as particularly serious. By excluding persons sentenced to life without parole from youth offender parole proceedings, the Legislature exercised its prerogative to define degrees of culpability and punishment by leaving in place longstanding judgments about the seriousness of these crimes and, relatedly, the punishment for them." (Id. at p. 853, fn. omitted.) The court further explained: "The statutory framework indicates that the Legislature aimed to increase opportunities for meaningful release for young adult offenders, while taking into account the appropriate punishment for the underlying crimes, depending on their severity. These are essentially the same considerations involved whenever the Legislature exercises its responsibility 'for determining which class of crimes deserves certain punishments and which crimes should be distinguished from others.'" (Id. at p. 855.) Thus the court held the exclusion of young adults sentenced to LWOP withstands rational basis scrutiny and therefore does not facially violate equal protection guarantees. (Id. at pp. 838-839.) We are bound by this authority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Furthermore, although the high court left open the possibility of "other challenges to the distinctions drawn by the special circumstances statute based on a more robust record or a more focused as-applied inquiry" (Hardin, supra, 15 Cal.5th at p. 862), defendant has not made an as-applied challenge based on the special circumstance he admitted, and he does not contend that the underlying facts are relevant to the issue he raises.
Under these circumstances, Hardin is controlling and requires us to reject defendant's equal protection claim.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P. J., POOCHIGIAN, J.