Opinion
D077085
02-26-2021
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY BUSH, Defendant and Appellant.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD108063) APPEAL from an order of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed. Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Anthony Bush appeals the trial court's denial of his motion seeking a "Franklin hearing" (People v. Franklin (2016) 63 Cal.4th 261 (Franklin)) to present youth-related mitigation evidence for an eventual youth offender parole hearing under Penal Code section 3051. The trial court denied the motion on the basis that section 3051 does not apply to offenders, like Bush, who are serving sentences of life without the possibility of parole (LWOP). (§ 3051, subd. (h).) Bush contends section 3051 violates his equal protection rights by denying youth offender parole hearings to LWOP youth offenders, while providing them to non-LWOP youth offenders. We reject this contention, and affirm.
Undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Conviction and Sentence
In 1994, 20-year-old Bush fatally shot a man after the man refused to hand over his wallet to Bush. A jury convicted Bush of first degree murder (§ 187, subd. (a)), with a robbery special circumstance finding (§ 190.2, subd. (a)(17)); and attempted robbery (§§ 664, 211, 213, subd. (b)). The jury also found true as to both counts that Bush personally used a firearm. (§ 12022.5, subd. (a).)
The trial court sentenced Bush to LWOP on the special circumstances murder conviction, plus a consecutive four years for the firearm enhancement. The court stayed punishment on the attempted robbery conviction and related firearm enhancement finding.
We affirmed Bush's conviction in 1997.
B. Motion for Franklin Hearing
In 2019, following enactment of section 3051 and subsequent amendments, Bush filed a motion requesting a Franklin hearing to present youth-related mitigation evidence for an eventual youth offender parole hearing. Bush acknowledged section 3051, by its terms, does not apply to offenders sentenced to LWOP, but argued this exclusion violated his equal protection rights because the statute affords such hearings to youth offenders serving non-LWOP sentences. The trial court rejected this claim and denied Bush's motion.
II. DISCUSSION
Bush reiterates on appeal his contention that section 3051 violates his equal protection rights. The contention is without merit.
A. Legal Principles
1. Youth Offender Parole Hearings
The Legislature enacted section 3051 in 2013 in response to judicial decisions establishing constitutional limits on the length of sentences for juvenile offenders. (See Stats. 2013, ch. 312, § 1; Franklin, supra, 63 Cal.4th at p. 277.) The statute gives eligible youth offenders the opportunity for parole in their 15th, 20th, or 25th year of incarceration depending on the length of sentence they are serving for their "controlling offense" (i.e., the offense for which the longest sentence was imposed). (§ 3051, subds. (b)(1)-(4), (a)(2)(B); see Franklin, at p. 277.) In enacting section 3051, the Legislature found "that youthfulness both lessens a juvenile's moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society." (Stats. 2013, ch. 312, § 1.)
Initially, section 3051 applied only to offenders who were under 18 when they committed their crimes. (Stats. 2013, ch. 312, § 4; In re Jenson (2018) 24 Cal.App.5th 266, 277 (Jenson).) But the Legislature later extended its operation to offenders who were under 23, and then to those who were under 26, at the time of their crimes. (Stats. 2015, ch. 471, § 1; Stats. 2017, ch. 675, § 1; see Jenson, at p. 277.) These amendments reflected the Legislature's recognition that young adults are not yet fully matured and, thus, have a lower degree of culpability and an increased potential for rehabilitation when compared with fully matured adult offenders. (Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.), at 2.)
We will refer to offenders who were under the age of 18 when they committed their controlling offense as "juvenile offenders," and those who were between the ages of 18 and 25 as "young-adult offenders." We will refer collectively to juvenile offenders and young-adult offenders as "youth offenders."
Section 3051 excludes several categories of youth offenders: young-adult (but not juvenile) offenders sentenced to LWOP; recidivist offenders sentenced under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12); sex offenders sentenced under the One Strike law (§ 667.61); and offenders "to whom [the statute] would otherwise apply, but who, subsequent to attaining 26 years of age, commit[ ] 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." (§ 3051, subd. (h); see Franklin, supra, 63 Cal.4th at pp. 277-278; Jenson, supra, 24 Cal.App.5th at p. 277.)
A youth offender covered by section 3051 may request a Franklin hearing to present youth-related mitigation evidence for use at the eventual youth offender parole hearing. (Franklin, supra, 63 Cal.4th at pp. 283-284 [direct appeal]; In re Cook (2019) 7 Cal.5th 439, 446-447 ["offenders with final convictions may file a motion in the trial court" to "seek the remedy of evidence preservation"].)
2. Equal Protection
"Both the state and federal Constitutions extend to persons the equal protection of law." (People v. Chatman (2018) 4 Cal.5th 277, 287, citing U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) "The concept of equal treatment under the laws means that persons similarly situated regarding the legitimate purpose of the law should receive like treatment." (People v. Morales (2016) 63 Cal.4th 399, 408 (Morales).)
"A meritorious equal protection claim requires a showing that (1) the state has adopted a classification that treats two or more similarly situated groups in an unequal manner, and (2) the classification does not bear a rational relationship to a legitimate state purpose when, as in this case, the classification is not based on race, gender, or some other criteria calling for heightened scrutiny. [Citations.] 'Under the equal protection clause, we do not inquire "whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.' " [Citation.] And, under rational relationship scrutiny, the claim fails if there are ' " 'plausible reasons' " ' for the classification. [Citation.]" (In re O.C. (2019) 40 Cal.App.5th 1196, 1210; see Morales, supra, 63 Cal.4th at p. 408; Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 ["To mount a successful rational basis challenge, a party must ' "negat[e] every conceivable basis" ' that might support the disputed statutory disparity."].)
"We review an equal protection claim de novo." (People v. Laird (2018) 27 Cal.App.5th 458, 469.)
B. Analysis
We conclude Bush's equal protection challenge fails both prongs. In reaching this conclusion, we are persuaded by the court's reasoning in the recent decision in In re Williams (2020) 57 Cal.App.5th 427, which rejected a substantially similar challenge by a young-adult offender serving two LWOP sentences for special circumstances murders he committed during a robbery. (Id. at p. 430.)
In addressing the similarly situated prong, the In re Williams court observed that section 3051's "legislative history suggests the Legislature was motived by dual concerns: that lengthy life sentences did not adequately account for, first, the diminished culpability of youth, and second, youthful offenders' greater potential for rehabilitation and maturation." (In re Williams, supra, 57 Cal.App.5th at p. 434.) The court was "inclined to agree" with the appellant that LWOP and non-LWOP youth offenders "are similarly situated with respect to the Legislature's second goal—i.e., to account for youthful offenders' potential for growth and rehabilitation"—because they committed their offenses when they were similarly neurologically developed and, thus, "are equally likely to demonstrate improved judgment and decisionmaking as they reach emotional and cognitive maturity." (Id. at p. 435.)
But the In re Williams court disagreed that LWOP and non-LWOP youth offenders "are similarly situated with respect to the Legislature's first goal, which is to calibrate sentences in accordance with youthful offenders' diminished culpability. 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." (In re Williams, supra, 57 Cal.App.5th at p. 435.) In other words, because LWOP is "reserved for crimes of the most heinous nature" (id. at p. 436), LWOP youth offenders are not similarly situated to non-LWOP youth offenders because the former will have committed categorically different offenses than the latter (see People v. Descano (2016) 245 Cal.App.4th 175, 182 [" 'Persons convicted of different crimes are not similarly situated for equal protection purposes.' [Citations.]").
We find this reasoning persuasive and, thus, conclude youth offenders serving LWOP sentences are not similarly situated to youth offenders serving non-LWOP sentences.
Bush does not argue that young-adult LWOP offenders are similarly situated to juvenile LWOP offenders. We note, however, that the In re Williams court rejected such a contention on the basis that the age of 18 is the constitutionally recognized "demarcating line" between juvenile and adult offenders. (In re Williams, supra, 57 Cal.App.5th at p. 435, fn. 5.)
Addressing the second prong of the equal protection analysis, the In re Williams court further concluded that even if LWOP and non-LWOP youth offenders were similarly situated, the Legislature had a rational basis for treating them differently. (In re Williams, supra, 57 Cal.App.5th at p. 436.) The court again focused on the gravity of the offenses for which LWOP is reserved: "The Legislature has prescribed an LWOP sentence for only a small number of crimes. These are the crimes the Legislature deems so morally depraved and so injurious as to warrant a sentence that carries no hope of release for the criminal and no threat of recidivism for society. 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.) We agree with this analysis.
Again, although Bush does not argue that young-adult LWOP offenders are similarly situated to juvenile LWOP offenders, we would likely conclude that a rational basis supports disparate treatment of the two groups. That is, the Legislature rationally could have concluded that despite not being fully matured, young-adult offenders are nevertheless more culpable than their juvenile counterparts who committed similar crimes.
Bush points out that he relied heavily in his motion on People v. Edwards (2019) 34 Cal.App.5th 183 (Edwards), in which the court held the Legislature had no rational reason to deny a youth offender parole hearing to a juvenile convicted of sexually violent crimes under the One Strike law but to grant such a hearing to a juvenile convicted of first degree murder because "no crime deserves categorically harsher punishment than . . . first degree murder." (Edwards, at pp. 197-199.) Bush's reliance on Edwards is misplaced for two reasons.
First, as Bush acknowledges, Edwards is facially distinguishable. Whereas the Edwards offender challenged harsher treatment of youth offenders who committed less severe offenses (sex offenses versus murder), our case involves harsher treatment of a youth offender who committed a categorically more serious offense (special circumstance murder) than those to which he compares himself. As the Edwards court observed, "there is no crime as horrible as intentional first degree murder," and "case law has long distinguished between such murders and other crimes against persons, reserving the most draconian sentences for murderers alone." (Edwards, supra, 34 Cal.App.5th at p. 197.)
Second, our court has disagreed with the Edwards court's analysis and has concluded "that the threat of recidivism by violent sexual offenders . . . provides a rational basis for the Legislature's decision to exclude one strikers from the reach of section 3051." (People v. Williams (2020) 47 Cal.App.5th 475, 492, rev. gr. July 22, 2020, S262191.) The Supreme Court granted review in Williams presumably to resolve the split of authority. (Ibid.)
Similarly, "[n]umerous 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." (People v. Wilkes (2020) 46 Cal.App.5th 1159, 1165.) --------
Bush also relies on Justice Pollak's concurring opinion in In re Jones (2019) 42 Cal.App.5th 477 (Jones). The Jones court rejected a claim that section 1170, subdivision (d)(2) violates equal protection by providing a resentencing petition mechanism for juvenile LWOP offenders, but not for young-adult LWOP offenders. (Jones, at p. 480.) The court concluded "[j]uveniles as a group are not similarly situated to adults who commit otherwise comparable crimes." (Id. at p. 481.)
Although Jones did not involve section 3051, Justice Pollak authored a concurring opinion to explore whether the statute's disparate treatment of youth offenders violates equal protection principles. (Jones, supra, 42 Cal.App.5th at p. 483 (conc. opn. of Pollak, J.).) Justice Pollak posited that because section 3051's primary focus is on the offender's neurological development and maturity, all youth offenders are similarly situated in that respect and there is no rational reason for distinguishing among them based on the gravity of their offenses. (Jones, at pp. 485-486 (conc. opn. of Pollak, J.).)
We are not persuaded. Justice Pollak's rationale addressed only one of the Legislature's "dual concerns" in enacting section 3051—the youth offender's neurological development and maturity. (In re Williams, supra, 57 Cal.App.5th at p. 434.) He did not account for the Legislature's other concern, "which is to calibrate sentences in accordance with youthful offenders' diminished culpability." (Id. at p. 435.) The statute's tiered parole eligibility dates based on the offender's sentence reflect that the Legislature was, indeed, also concerned with the varying degrees of culpability even within the groups of eligible offenders. (See § 3105, subd. (b)(1)-(4).)
In sum, section 3051's disparate treatment of LWOP and non-LWOP youth offenders does not violate equal protection.
DISPOSITION
The order is affirmed.
HALLER, J. I CONCUR: HUFFMAN, Acting P. J. Dato, J., Concurring.
For reasons expressed more thoroughly in my concurring opinion in People v. Jackson (Feb. 23, 2021, D077095) ___ Cal.App.5th ___, ___ [2021 Cal.App. Lexis 152, *18 (conc. opn. of Dato, J.)], I agree with the majority that Penal Code section 3051, subdivision (h) does not deny defendant Anthony Bush equal protection of the laws.
DATO, J.