Summary
In People v. Wilkes, supra, 46 Cal.App.5th 1159, the First District, Division Five Court of Appeal rejected a similar equal protection challenge by a defendant sentenced under the Three Strikes law.
Summary of this case from Vailes v. LundyOpinion
A155624
03-26-2020
The PEOPLE, Plaintiff and Respondent, v. Sadel WILKES, Defendant and Appellant.
Jonathan Soglin, San Francisco, William Richard Such, and Jamie M. Weyand, By Appointment of the First District Court of Appeal under the First District Appellate Project, for Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, and Julia Y. Je, Deputy Attorney General.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of Parts I, II, III, IV A, IV B, IV C, IV E, & IV F.
Jonathan Soglin, San Francisco, William Richard Such, and Jamie M. Weyand, By Appointment of the First District Court of Appeal under the First District Appellate Project, for Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, and Julia Y. Je, Deputy Attorney General.
SIMONS, J. Sadel Wilkes appeals his conviction, following a jury trial, for the attempted murder of Christopher W. and related crimes. In the published portion of the opinion, we reject appellant’s equal protection challenge to a statutory provision rendering youth offenders sentenced pursuant to the Three Strikes Law ( Pen. Code, §§ 667, subds. (b) – (j), 1170.12 )—such as appellant—ineligible for youth offender parole hearings. (§ 3051, subd. (h).) In the unpublished portion of the opinion, we modify the judgment to strike an enhancement and award presentence conduct credits, and reject appellant’s remaining challenges.
All undesignated section references are to the Penal Code.
BACKGROUND
A. Trial Testimony
Christopher W.
Christopher W. testified that on September 27, 2017, he went to a park with Karmisha G. and their two-year-old son. He played dice with some other people at the park, including someone known as "Nine-O." Christopher did not have any problems with anyone at the park.
After playing dice, Christopher drove off in a white Volvo with Karmisha and their son. He drove onto a freeway on-ramp and stopped, waiting for metering lights to turn green, with cars in front of and behind him. Suddenly, the front passenger window "got shot out." Christopher got out of the car and saw a man holding a gun. He heard another gunshot, re-entered the car, saw that Karmisha was injured, and drove to the hospital.
Because appellant does not dispute his identity as the shooter on appeal, we omit some of the evidence on this issue, including descriptions of the shooter and recordings of appellant’s jail calls.
In an interview with law enforcement on the day of the shooting, Christopher told officers he recognized the shooter "a hundred percent" as someone named Sadel (which he thought was spelled with a "C"), who went by the nickname Nine-O. Christopher knew the shooter from the "South Hayward area" as part of a group that used to "hang out at the park." The interviewing officer testified that, the day after the shooting, Christopher identified a photograph of appellant as the shooter. Karmisha G.
A recording of the interview was played for the jury and a transcript was provided.
At trial, Christopher testified appellant was not the shooter. He also testified that he had been harassed by people telling him not to testify and calling him a snitch.
On the day of the shooting, Karmisha G. was at a park with Christopher and their son. They left in Karmisha’s white Volvo, with Christopher driving. While they were stopped at the metering light on the freeway on-ramp, Karmisha heard a loud explosion through the window and glass shattered over her face. She did not hear any additional gunshots.
Thomas G.
On the day of the shooting, Thomas G. was on the freeway on-ramp waiting for the metering lights. He saw a person quickly walk by, looking "determined," and head straight for the first car stopped at the metering light, approximately two cars ahead of Thomas. The person then fired multiple rounds from a semi-automatic pistol, pointing directly into the passenger side window. After the first or second shot, the driver exited the car. The shooter did not change his aim during the shooting. Afterwards, the person immediately walked to a vehicle behind Thomas’s. Tramaine C.
Law enforcement found only one shell casing at the scene.
On the day of the shooting, Tramaine C. saw appellant, whom he knew only as Nine-O, at a park. Tramaine did not see any problems between appellant and Christopher at the park. Tramaine left the park for five or ten minutes; when he returned, he saw Christopher walking to a white car and getting in it. Appellant was running after the white car but could not catch it.
Appellant told Tramaine that Christopher had appellant’s backpack in his car and asked Tramaine for a ride. Tramaine said that he did not have any gas, but agreed when appellant offered to give him five or ten dollars, although Tramaine later forgot to collect the money. They entered Tramaine’s car and proceeded in the direction the white car had gone. They saw a car that looked like the white car and followed it onto the freeway on-ramp. The metering lights were on and traffic was stopped, with several cars backed up. Appellant said, "There’s the car," exited Tramaine’s car, and walked casually towards the white car. Tramaine lost sight of appellant after he passed four or five cars. A minute or two later appellant returned with a backpack. Tramaine was playing music in his car and did not hear any gunshots while appellant was gone. Tramaine did not see a gun, and appellant’s demeanor was calm.
B. Verdict and Sentence
The jury found appellant guilty of the attempted murder of Christopher (§§ 187, subd. (a), 664, subd. (a)) and found true an allegation that the attempted murder was committed willfully, deliberately, and with premeditation (§ 664, subd. (a)). The jury also found appellant guilty of two counts of assault with a firearm (§ 245, subd. (a)(2)), shooting at an occupied motor vehicle (§ 246), and possession of a firearm by a felon (§ 29800, subd. (a)(1)), and found true multiple firearm enhancements. In a bifurcated proceeding, appellant admitted prior conviction allegations. The trial court sentenced appellant to an aggregate prison term of 59 years, four months to life.
The parties stipulated at trial that appellant had previously been convicted of a felony.
DISCUSSION
See footnote *, ante .
IV. Sentencing
See footnote *, ante .
D. Youth Offender Parole Hearing
Appellant was 25 years old when he committed the instant offenses. Pursuant to section 3051, subdivisions (a) and (b), offenders 25 years of age and younger at the time of their offense are eligible for a youth offender parole hearing after 15, 20, or 25 years in prison, depending on the sentence. (§ 3051, subds. (a)–(b).) However, section 3051, subdivision (h) provides that certain youth offenders—including those sentenced pursuant to the Three Strikes Law, such as appellant—are ineligible for youth offender parole hearings. Appellant argues this differential treatment of Three Strikes youth offenders violates equal protection. "The Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution guarantee all persons the equal protection of the laws. To succeed on an equal protection claim, appellant[ ] must first show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.] ... [¶] Where a class of criminal defendants is similarly situated to another class of defendants who are sentenced differently, courts look to determine whether there is a rational basis for the difference. [Citation.] ‘[E]qual protection of the law is denied only where there is no "rational relationship between the disparity of treatment and some legitimate governmental purpose." ’ [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." ’ [Citation.] To mount a successful rational basis challenge, a party must ‘ "negative every conceivable basis" ’ that might support the disputed statutory disparity. [Citations.] 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 (2019) 34 Cal.App.5th 183, 195–196, 246 Cal.Rptr.3d 40 ( Edwards ).)
Section 3051, subdivision (h) provides, in its entirety: "This 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. This section shall not apply to an individual to whom this section would otherwise apply, but who, subsequent to attaining 26 years of age, commits an additional crime for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison."
Appellant argues he is similarly situated to youth offenders who were not sentenced pursuant to the Three Strikes Law, and further argues there is no rational basis for the differential treatment.
Numerous courts have rejected equal protection challenges to the differential treatment of Three Strikes offenders, concluding that such offenders are not similarly situated to non-recidivist offenders and/or that a rational basis exists to treat them differently. As one such court reasoned: "A person who has committed and been convicted of two serious or violent felonies before the instant offense is a recidivist who has engaged in significant antisocial behavior and who has not benefited from the intervention of the criminal justice system.... It is reasonable for the Legislature to distinguish between those felons ... who come to court with a history of serious or violent felony convictions and those who do not." ( People v. Cooper (1996) 43 Cal.App.4th 815, 829, 51 Cal.Rptr.2d 106 ( Cooper ); see also People v. Kilborn (1996) 41 Cal.App.4th 1325, 1332, 49 Cal.Rptr.2d 152 ["The system of imposing greater punishment on all persons who commit a felony-grade crime after having committed one or more serious or violent felonies in the past, is rationally related to the legitimate public objective of discouraging recidivism."]; People v. Spears (1995) 40 Cal.App.4th 1683, 1687, 48 Cal.Rptr.2d 634 ["It is clear the Legislature intended to set appellant and other recidivists with prior ‘strike’ convictions apart from first time offenders and those with less serious criminal histories; it is equally clear it did so with a legitimate objective in mind."]; People v. McCain (1995) 36 Cal.App.4th 817, 820, 42 Cal.Rptr.2d 779 ["The Legislature has seen fit to increase the severity of punishment for recidivists who have committed serious or violent felonies and who again commit felony offenses.... [W]e cannot say harsher treatment for such recidivists is irrational or arbitrary such that it denies them equal protection under the law."].)
The reasoning of these cases applies here. The purpose of section 3051 is "to give youthful offenders ‘a meaningful opportunity to obtain release’ after they have served at least 15, 20, or 25 years in prison (§ 3051, subd. (e)) and made ‘ "a showing of rehabilitation and maturity" ’ and "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." ( Edwards, supra, 34 Cal.App.5th at p. 198, 246 Cal.Rptr.3d 40.) Assuming a Three Strikes youth offender is similarly situated to other youth offenders for purposes of section 3051, the Legislature could rationally determine that the former—"a recidivist who has engaged in significant antisocial behavior and who has not benefited from the intervention of the criminal justice system" ( Cooper, supra, 43 Cal.App.4th at p. 829, 51 Cal.Rptr.2d 106 )—presents too great a risk of recidivism to allow the possibility of early parole.
Appellant relies on Edwards, supra, 34 Cal.App.5th 183, 246 Cal.Rptr.3d 40, in which the Court of Appeal held the statutory exclusion of youth offenders sentenced under the "One Strike" law ( § 667.61 ) violated equal protection. ( Edwards, at p. 199, 246 Cal.Rptr.3d 40.) Edwards discussed "a consistent theme in constitutional jurisprudence," to wit, " ‘ "[d]efendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers," ’ " and concluded: "Because the Legislature made youthful-offender parole hearings available even for first degree murderers (except those who committed murder as an adult and received an LWOP sentence), there is no rational basis for excluding One Strike defendants from such hearings." ( Edwards, at p. 196–197, 246 Cal.Rptr.3d 40.)
Of course, appellant was convicted of attempted murder, and thus is not the type of offender who is " ‘ "categorically less deserving of the most serious forms of punishment than are murderers." ’ " (See Edwards, supra, 34 Cal.App.5th at p. 196, 246 Cal.Rptr.3d 40.)
Edwards is distinguishable. "The ‘One Strike’ law is an alternative, harsher sentencing scheme that applies to specified felony sex offenses," such that " ‘a first-time offense can result in one of two heightened sentences.’ " ( Edwards, supra, 34 Cal.App.5th at p. 193, 246 Cal.Rptr.3d 40.) The distinguishing characteristic of Three Strikes offenders, of course, is that they are not being sentenced for a first-time offense. Thus, the ample authority rejecting equal protection challenges from Three Strikes offenders did not apply in Edwards . Indeed, Edwards itself took pains to "note that criminal history plays no role in defining a One Strike crime" and that "[t]he problem in this case is" the categorical exclusion of "an entire class of youthful offenders convicted of a crime short of homicide ..., regardless of criminal history ...." ( Edwards, at p. 199, 246 Cal.Rptr.3d 40, italics added.)
In sum, the differential treatment of youth offenders sentenced pursuant to the Three Strikes Law for purposes of youth offender parole hearings does not violate equal protection.
See footnote *, ante .
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DISPOSITION
The judgment is modified to (1) strike the section 667.5, subdivision (b) enhancement, and (2) award 56 days of presentence conduct credit. As so modified, the judgment is affirmed. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment that has been modified accordingly.
We concur.
JONES, P.J.
BURNS, J.