Opinion
H046294
06-22-2021
THE PEOPLE, Plaintiff and Respondent, v. GERARDO CRUZ CISNEROS, Defendant and Appellant. In re GERARDO CRUZ CISNEROS, on Habeas Corpus
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. F1554600
Cogliati, J. [*]
A jury convicted defendant Gerardo Cruz Cisneros of first degree murder (Pen. Code, § 187, subd. (a) ) and found true the special circumstance allegations that the murder was committed during a burglary (§ 190.2, subd. (a)(17)(G)) and a robbery (id., subd. (a)(17)(A)). The jury also convicted defendant of first degree robbery while acting in concert (§§ 211, 213, subd. (a)(1)(A)) and first degree burglary (§§ 459, 460, subd. (a)), finding true the allegation that a non accomplice was present during the burglary (§ 667.5, subd. (c)(21)).
Unspecified section references are to the Penal Code.
The trial court found true allegations that defendant had two prior convictions that qualified as “strikes” (§§ 667, subds. (b) (i), 1170.12) and one prior serious felony conviction (§ 667, subd. (a)).
Defendant was sentenced to life without possibility of parole for the murder, consecutive to a five year term for the prior serious felony enhancement. The trial court imposed terms of 25 years to life for the robbery and burglary counts but stayed those terms pursuant to section 654.
On appeal, defendant contends: (1) there was insufficient evidence to support the jury's findings on the special circumstance allegations; (2) the trial court erred by imposing terms of 25 years to life for the robbery and burglary counts; (3) he is entitled to a youth offender parole hearing (§ 3051, subd. (a)(1)) under principles of equal protection; and (4) if his trial counsel's failure to request a youth offender parole hearing forfeited the issue for appeal, his trial counsel was ineffective.
Defendant has also filed a petition for writ of habeas corpus, which we ordered considered with his direct appeal. In the habeas petition, defendant contends his trial counsel was ineffective for failing to object to the terms of 25 years to life imposed for the robbery and burglary counts.
As explained below, we find substantial evidence supports the jury's findings on the special circumstance allegations. We find defendant is not entitled to a youth offender parole hearing. Because no sentencing error appears in the record on appeal, we will affirm the judgment. However, because error is demonstrated in the habeas petition, we will grant habeas relief and direct the trial court to resentence defendant on the robbery and burglary counts.
I. Background
Defendant's convictions stem from the home invasion robbery and homicide of Robert Heiser. Defendant participated in the home invasion robbery with three other people: Rodrigo Bejarano, Isabella Chaidez, and Gabriela Ortiz. Ortiz testified at trial pursuant to a plea agreement with the prosecution.
Bejarano and defendant were tried together. Like defendant, Bejarano was convicted of murder with special circumstances, robbery in concert, and first degree burglary. Bejarano has filed a notice of appeal in this court (case No. H047892), but as of the filing of this opinion, the record in his case has not yet been completed and no briefs have been filed.
A. Heiser's Neighbors are Alerted
Heiser lived in Gilroy, on a cul de sac in a residential neighborhood. At about 3:00 a.m. on February 16, 2015, his neighbors Robert and Denise Quiroz were woken up by their dogs barking. Robert went outside into the side yard, where he heard something or someone running along the fence line. Denise went to a window and saw a man running from the side of their house, across their front lawn, and out to the street. Robert ran down the driveway but did not see the person.
Robert decided to check on some of their neighbors while Denise called 9 11. Robert went to Heiser's residence, where he noticed the garage light on and the garage door open. He knocked and yelled for Heiser, but there was no answer.
B. Discovery of Heiser's Body
Gilroy Police officers arrived, entered Heiser's home, and found Heiser's body in the master bedroom. Heiser was on his knees next to the bed, with his upper body leaning across the bed. Heiser's arms were out in front of him, and his wrists were tied with a white cord similar to an iPhone cord.
Heiser's lower face and abdomen were red, and his upper face was pale grey, indicating post mortem lividity-i.e., the pooling of blood due to gravity. Heiser was non responsive, had no pulse, and was stiff to the touch. He was pronounced dead at 3:29 a.m.
C. Evidence Collection from Heiser's Home
Officers observed a black computer power cord in Heiser's driveway. A bag of leftover food from the Olive Garden restaurant was in the refrigerator. There were two cars in the garage; the door of one car was open. The house had no signs of forced entry. Swabs and fingerprint lifts were taken from the handles and lock on the door from the garage to the house.
There was blood underneath and next to Heiser's head. Pieces of latex glove were found on Heiser's cheek and in two places on the mattress. Stains on the wall above the bed's headboard were swabbed for DNA.
DNA testing showed that defendant was the major contributor of the DNA found on the three latex glove pieces. Defendant's DNA was also found on Heiser's right hand, and possibly on Heiser's left hand. Defendant was a possible source of DNA found in Heiser's left fingernail clippings. Bejarano was excluded as a possible DNA contributor on the latex glove pieces, hand swabs, and fingernail clippings.
Defendant's DNA was found on the doorknob and in two of the stains on the wall or headboard. Defendant was a possible source of DNA in a third stain. Bejarano was a possible source of DNA found on the black computer power cord found in the driveway.
D. Investigation
1. Credit Card Records
Bank records showed that Heiser's credit card had been used at a 7 Eleven store in San Jose three times on the morning of February 16, 2015. At 5:14 a.m., an attempted transaction for $506.44 was declined. At 5:15 a.m., an attempted transaction for $306.44 was declined. At 5:16 a.m., an attempted transaction for $6.27 was declined. Video surveillance showed two females attempting the transactions.
Heiser's credit card had also been used at a CVS store in San Jose that morning. Surveillance video from the CVS showed the same two females, who were later identified as Chaidez and Ortiz.
Heiser's credit card had also been used at an Olive Garden restaurant the night of February 15, 2015. A waitress at the restaurant identified one of the females in the 7 Eleven video.
Surveillance video from a Chevron gas station on Tully Road in San Jose showed Bejarano and Chaidez making a purchase at 5:53 a.m.
2. Cell Phone Records
Cell phone records revealed that Chaidez called Bejarano on February 15, 2015, at 8:56 p.m. Chaidez called Bejarano three or four times beginning at 1:55 a.m. on February 16, 2015.
Bejarano's phone was in the San Jose area for most of the day on February 15, 2015. However, at about 9:50 p.m., Bejarano's phone was in the Morgan Hill area. Bejarano's phone was in Gilroy, within a mile of Heiser's residence, when it made calls to Chaidez at 1:42 a.m., 1:51 a.m., and 1:55 a.m. on February 16, 2015. At 5:37 a.m., Bejarano's phone was back in San Jose.
3. Medical Examination
Dr. Michelle Jorden, the chief medical examiner for Santa Clara County, testified as an expert in medicine, autopsies, and causes of death. She had performed the autopsy of Heiser's body, which was six feet five inches tall and weighed 306 pounds.
Heiser had petechial hemorrhaging (burst blood vessels) in his eyes. His external injuries, which were consistent with blunt force trauma, included a bruise above his right eye, with a laceration and bleeding; an abrasion on his nose; a puncture wound and petechial hemorrhages on his upper lip; abrasions on his right ear, right cheek, and left toe; and bruises on his lower left chest, inner left forearm, left abdomen, left hip, belly button area, and right abdomen. The bruise on Heiser's right abdomen was a petechial bruise. The petechial hemorrhages and bruises indicated asphyxia, or a lack of oxygen.
Heiser had an enlarged heart at the time of his death, and he displayed mild coronary artery disease. He had an abnormal liver that was indicative of early heart failure.
In Dr. Jorden's opinion, Heiser's cause of death was “probable compressional asphyxia while being restrained in the form of bondage during a home invasion.” Additionally, it appeared that Heiser's heart had “given out, ” such that his cause of death “could have been asphyxia with a sudden cardiac arrhythmia.” Dr. Jorden had also listed blunt force trauma and dilated cardiomyopathy as “significant condition[s]” relating to Heiser's death, although the blunt force trauma injuries themselves were not fatal.
Dr. Jorden explained how the compression, blunt force trauma, and underlying heart condition may have combined to cause Heiser's death: “So if someone is being restrained against their will and if they are sustaining injuries to their body, there's a pain factor that occurs. And... when someone is in pain their heart rate increases. And when their heart rate increases, it increases demand oxygen [sic] to the heart. [¶]... So in this particular case there could be a simultaneous component of compressional asphyxia if someone is leaning into Mr. Heiser and compressing his chest where he can't adequately breathe and his heart is not getting enough oxygen and at the same time you're having the heart fail.”
Dr. Jorden testified that it was “important” for her to ensure that Heiser's final death certificate reflect both compressional asphyxia and a sudden cardiac arrhythmia. Ultimately, Dr. Jorden opined, it was the “totality of the circumstances, ” which included the blunt force trauma, the heart condition, and the compressional asphyxia, that “really caused” Heiser's death.
4. Defendant's Arrest
Defendant and Bejarano were arrested at a rural property in Sacramento County on February 25, 2015. Just before the arrests, officers observed items being burned on the property. Investigation revealed that clothing was being burned.
E. Testimony of Gabriela Ortiz
Gabriela Ortiz pleaded guilty to eight felonies associated with the Heiser incident: first degree robbery, voluntary manslaughter, residential burglary, assault by means of force likely to produce great bodily harm, attempted carjacking, false imprisonment, grand theft, and identity theft. She had not yet been sentenced. She faced up to 18 years two months in prison. Pursuant to a plea agreement, she had promised to testify truthfully.
In February 2015, Ortiz and Chaidez were friends who would “party” together-they would drink alcohol and use opiates, methamphetamine, and marijuana. Ortiz met Bejarano through Chaidez, and she met defendant through Bejarano.
1. Fremont Robbery
About a week before the Heiser incident, Chaidez told Ortiz about a robbery that Chaidez, defendant, and Bejarano had committed in Fremont a few days earlier. Defendant and Bejarano were present when Chaidez recounted what had happened.
Chaidez said that “they [had] robbed some guy she was hanging out with.” Chaidez explained that she had met the victim online and had “spent time with him” before the robbery. Chaidez slipped Xanax in the victim's drink when he fell asleep. Chaidez then opened the door to the victim's residence so defendant and Bejarano could come inside. Defendant tied up the victim. They “rob[bed] the house, ” taking money and electronics, and when the victim woke up, defendant punched him in the face.
Chaidez laughed when describing the Fremont robbery, and she showed Ortiz the money she had obtained. Defendant and Bejarano were also laughing. Chaidez and Bejarano told defendant “that he had a good punch.” Chaidez told Ortiz that she was “pretty” and that she should “go with her on a date and meet guys and party and help rob.” Defendant and Bejarano agreed with Chaidez.
2. Oakland Incident
A few days after Chaidez told Ortiz about the Fremont robbery, the foursome (Chaidez, Ortiz, defendant, and Bejarano) went to Oakland. Chaidez had answered an online ad posted by someone who “wanted to party and hang out with females and do drugs.” The foursome came up with a plan: Chaidez and Ortiz would “party” with the man and Chaidez would give him Xanax. Chaidez would then let Bejarano and defendant into the residence. Defendant would tie the man up, and Bejarano and defendant would “steal stuff.”
Chaidez and Ortiz went into the home of an older man. They did ecstasy and cocaine, drank alcohol, and smoked marijuana. Chaidez also smoked crystal methamphetamine. As Chaidez began texting with defendant and Bejarano, Ortiz expressed fear about going through with the robbery. Ortiz told Chaidez she wanted to leave. She thanked the older man for the drugs and said they had to go.
Ortiz and Chaidez went out to the car in which defendant and Bejarano were waiting. Defendant and Bejarano asked why they had taken so long, and they expressed irritation with Ortiz and Chaidez.
3. Heiser Incident
Chaidez told Ortiz of her plan to go on a date with an older man she had met online. Chaidez planned to “warm up to him” and “rob him in the future.” Chaidez instructed Ortiz to hang out with defendant and Bejarano while Chaidez went out to dinner with the man. Chaidez would meet up with the rest of the group later “to party.”
That night, Ortiz, Chaidez, Bejarano, and defendant dropped Chaidez off at an Olive Garden restaurant. Chaidez said she was going to meet Heiser there. Ortiz believed that the plan was to pick Chaidez up later and “go to a hotel and party.” Ortiz, defendant, and Bejarano ate, drank alcohol, and smoked marijuana while waiting for Chaidez. Ortiz also took Xanax.
After about two hours, Bejarano received a call or text message from Chaidez. Bejarano then said that the plan had changed: Chaidez had convinced Heiser to take her to his house, and the rest of the group was going to go meet up with her there. At some point, Chaidez texted Heiser's address to Bejarano.
On the way to Heiser's residence in Gilroy, they stopped at a CVS. Defendant and Bejarano went inside and returned with what appeared to be white fabric gloves, saying they had stolen the gloves. Defendant and Bejarano said that if Chaidez was able to let them inside the residence, they would “go in there and steal.”
Defendant, Bejarano, and Ortiz drove to a residential area of Gilroy, where they parked and waited for Chaidez to call. They smoked more marijuana, drank more alcohol, and snorted some crystal methamphetamine as they waited. Ortiz also took more Xanax.
Defendant, Bejarano, and Ortiz discussed the plan: after Heiser fell asleep, Bejarano and defendant would go into the house. Defendant, who knew “how to tie really good, ” would tie up Heiser. They would “ransack the house and steal stuff and leave.”
Chaidez eventually texted either defendant or Bejarano, saying that Heiser had fallen asleep. Chaidez met the others in the driveway, and defendant and Bejarano went into the house. Chaidez and Ortiz went inside after defendant and Bejarano, who had gloves on. Defendant and Bejarano went upstairs. Chaidez pointed to a laptop and told Ortiz to put it into a bag. Chaidez also told Ortiz to take a wallet. Chaidez then went upstairs. Ortiz remained downstairs.
Ortiz heard Heiser scream, “Oh, help me. Please, help me.” Chaidez came downstairs and told Ortiz to leave. Chaidez and Ortiz went into the garage, where Chaidez told Ortiz to put the stolen items into one of the cars, which she planned to take. Chaidez then went back into the house. Ortiz was still in the garage when the others came running out of the house, telling Ortiz to run. Ortiz tried to grab the bag of stolen items, but she had trouble carrying it, so Bejarano took it.
The foursome had been inside Heiser's residence for about five minutes. After they left, they ran to Bejarano's car. When they reached the car, defendant said he had left his hat in Heiser's house. Defendant ran back, got the hat, and returned to the car. Defendant said he had punched Heiser “one last time and put him to sleep.”
As the foursome drove away, Chaidez described how defendant and Bejarano had struggled to tie up Heiser. Chaidez said that “they did punch him” and might have broken his nose. Bejarano described how he had jumped on top of Heiser and sat on top of Heiser, and how Heiser had tried to fight him off. Defendant described punching Heiser and making his nose bleed. Either defendant or Bejarano had told Heiser not to move and that they had a gun.
The foursome drove to a CVS and a 7 Eleven, where they tried to use Heiser's credit cards. Chaidez and Ortiz purchased a “prepaid card.” They then went to the Alum Rock area of San Jose, where they drank alcohol and smoked marijuana with some other people. Later that day, they tried to sell Heiser's laptop.
4. Ortiz Goes to the Police
The following day, the foursome got a hotel room in order to “party.” While they were in the hotel room, a news story about the Fremont burglary appeared on television, with Chaidez's picture. Ortiz looked online for more information and found a story mentioning that “there was a male in Gilroy found deceased at home.” When Ortiz showed the story to Chaidez, and asked, “what did you do, ” Chaidez appeared panicked and said, “no, no, no, no, no.” Defendant told Ortiz “not to worry about it.” Bejarano said that “it wasn't going to be traced back” to them and that it was “still an investigation.”
That night, one of Ortiz's friends advised her that there was a video online showing Ortiz and someone else going into a store. The video indicated the two people were suspects in a homicide. After seeing the video, Ortiz took some drugs, including Seroquel and Oxycodone. Ortiz's boyfriend convinced her to turn herself in, so she did.
Initially, Ortiz denied being present during the Heiser incident. She told the police she was recounting what other people had told her, and she said she did not know the names of the people who had committed the crimes. In fact, Ortiz did not know Bejarano's and defendant's true names at the time; she knew them by the nicknames “Xanman” and “Blackie.” Ortiz provided Chaidez's nickname as well: “Smokey.” Ortiz provided the phone numbers for all four participants.
Ortiz then changed her story and admitted she had gone to Gilroy with the other three participants, but she claimed she had stayed in the car outside of the house. Ortiz also told the police about the Fremont and Oakland incidents.
During a subsequent interview, Ortiz provided more details. She described how she, defendant, and Bejarano stole rubber gloves on the way to Gilroy, and how she left the car to “try to get an eye on the house” before the burglary. Ortiz described how defendant had gone back to the house to get something he had left there, and how when defendant got back to the car, he said, “I put that fool to sleep.”
F. Prior Incident: Fremont Robbery
Anthony Fregoso met Chaidez, who had posed as “Krissy, ” online in early February 2015. Twice, Fregoso picked up Chaidez and took her to his home in Fremont, where they talked and smoked methamphetamine.
Fregoso brought Chaidez to his home for a third time on February 7, 2015. This time, they took a drug that Chaidez brought, which she called “Xanies, ” and also smoked methamphetamine. Fregoso “went unconscious, ” and when he woke up, he was face down on his bed with his arms and legs tied up in USB cables. Someone was straddling Fregoso's back and pushing Fregoso's head into the bed. When Fregoso tried to get up, the person hit Fregoso in the head and face and told him not to move.
Fregoso heard two or three male voices in the room; he heard Chaidez as well. Fregoso lost consciousness again after about five minutes. At some point, he regained consciousness and listened to make sure no one was in the house. Fregoso's cell phone was gone, and his phone jack had been ripped out of the wall, but he had an emergency phone that he used to call 9 11.
Fregoso's bedroom had been “turned upside down.” Missing items included Fregoso's gaming systems, wallet, cell phone, laptop, car keys, and San Jose Sharks jersey. Fregoso's injuries included a fractured jaw, bruising on his face, and “marks” on his hands, wrists, and legs.
G. Defense Evidence
Gantt Galloway, a research scientist and pharmacist, testified as an expert in pharmacology. He explained that memory problems are a side effect of Xanax. A person who combined Xanax with alcohol would have increased memory problems as well as confusion. If a person of Ortiz's size had consumed the amount of alcohol, Xanax, and marijuana that Ortiz had consumed on the night of the Heiser incident, the person would be highly intoxicated, and it would be “quite likely” that the person would have memory problems.
H. Verdicts, Findings, and Sentence
A jury convicted defendant of first degree murder (count 1; § 187, subd. (a)) and found true the special circumstance allegations that the murder was committed during a burglary (§ 190.2, subd. (a)(17)) and a robbery (ibid.). The jury also convicted defendant of first degree robbery while acting in concert (count 2; §§ 211, 213, subd. (a)(1)(A)), and first degree burglary (count 3; §§ 459, 460, subd. (a)) with a non accomplice present (§ 667.5, subd. (c)(21)).
The trial court found true allegations that defendant had two prior convictions that qualified as “strikes” (§§ 667, subds. (b) (i), 1170.12) and one prior serious felony conviction (§ 667, subd. (a)).
Defendant was sentenced to life without possibility of parole for the murder, consecutive to a five year term for the prior serious felony enhancement. The trial court imposed but stayed, pursuant to section 654, sentences of 25 years to life for the robbery and burglary.
II. Discussion
A. Sufficiency of the Evidence - Special Circumstances
Defendant contends there was insufficient evidence to support the jury's true findings on the special circumstance allegations: that the “murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit” robbery (§ 190.2, subd. (a)(17)(A)) and burglary (id., subd. (a)(17)(G)).
Specifically, defendant contends there was insufficient evidence that he was “an actual killer” (§ 190.2, subd. (b)) and insufficient evidence that he was a major participant in the underlying felony who acted with reckless indifference to human life (id., subd. (d)). The People contend there was substantial evidence to support the theory that defendant was an actual killer, and that in any event there was substantial evidence that he was a major participant who acted with reckless indifference to human life.
These contentions align with the People's position at trial. In argument to the jury, the prosecutor asserted that defendant and Bejarano were both the “actual killers.” The prosecutor argued that the jury should make that finding based on the coroner's testimony, the crime scene photographs, and the autopsy photographs. The prosecutor argued that alternatively, the jury should find that defendant and Bejarano “both acted as a major participant with reckless indifference.”
1. Standard of Review
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or special circumstance finding, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319 320.) “In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.” (People v. Cortes (1999) 71 Cal.App.4th 62, 71.)
2. Actual Killer
Section 190.2, subdivision (b) specifies that “an actual killer... need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole.” Thus, “[a] felony murder special circumstance is established even absent intent to kill, premeditation, or deliberation, if there is proof beyond a reasonable doubt that the defendant personally killed the victim in the commission or attempted commission of, and in furtherance of, one of the felonies enumerated in subdivision (a)(17) of section 190.2.” (People v. Jennings (1988) 46 Cal.3d 963, 979 (Jennings).)
Defendant contends the evidence did not support a finding that he was “the one who personally killed the victim.” Defendant points out that Bejarano was the person who sat on Heiser, and that Heiser's cause of death was listed as compressional asphyxia. Thus, defendant claims, only Bejarano was an “actual killer.”
In asserting that there can be more than one actual killer, the People rely on three cases that examined instructions on proximate causation, two of which did not consider the meaning of “actual killer” as used in section 190.2, subdivision (b). (See People v. Sanchez (2001) 26 Cal.4th 834, 847; People v. Cornejo (2016) 3 Cal.App.5th 36, 61; People v. Pock (1993) 19 Cal.App.4th 1263, 1275.) This court recently recognized that someone can proximately cause a person's death without being an actual killer. (People v. Garcia (2020) 46 Cal.App.5th 123, 152 (Garcia).) This court explained that “the meaning of ‘actual killer' under section 190.2[, subdivision] (b) is literal. The actual killer is the person who personally kills the victim, whether by shooting, stabbing, or... taping his mouth closed, resulting in death by asphyxiation.” (Ibid.; see also Jennings, supra, 46 Cal.3d at p. 979 [proof that the defendant “personally killed the victim” is required for felony murder special circumstances]; People v. Bland (2002) 28 Cal.4th 313, 336 [“Proximately causing and personally inflicting harm are two different things.”].) This court also recognized, however, that more than one person can be an “actual killer” under section 190.2, subdivision (b), such as where there are “concurrent causes” of death. (See Garcia, at pp. 153 154; People v. Hardy (1992) 2 Cal.4th 86, 193 [jury could have found that there were “two or more actual killers”]; cf. People v. Modiri (2006) 39 Cal.4th 481, 493 [“personally” does not mean exclusively and does not require the defendant “act alone”].)
In the instant case, the jury could reasonably have found that both defendant and Bejarano were “actual killer[s]” (§ 190.2, subd. (b)) because their acts of violence concurrently caused Heiser's death. Ortiz's testimony established that defendant tied Heiser up, that Bejarano sat on Heiser, and that defendant inflicted blunt force injuries on Heiser while Bejarano was sitting on Heiser, who was actively resisting. The forensic evidence, including the DNA found on the latex glove pieces and the DNA found on the stains, further showed defendant's personal involvement in the restraint and assault on Heiser. Most importantly, Dr. Jorden did not opine that Heiser's death was caused solely by the asphyxia. Rather, she opined that Heiser's cause of death was caused by a combination of the restraints, the compression, the blunt force trauma, and Heiser's underlying heart condition. Dr. Jorden explained that the pain caused by the blunt force trauma would have caused Heiser's heart rate to increase, which would have increased his heart's need for oxygen. Because Heiser's oxygen would have been limited by the compressional asphyxia, he would have suffered a sudden cardiac arrhythmia. According to Dr. Jorden, it was the “totality of the circumstances, ” which included the restraints and blunt force trauma inflicted by defendant, that “really caused” Heiser's death.
The instant case may be contrasted with Garcia, in which there was evidence to support a finding that the defendant had merely handed a roll of duct tape to another person, who had then placed the duct tape over the victim's mouth, resulting in the victim's death by asphyxiation. (Garcia, supra, 46 Cal.App.5th at p. 153.) Here, defendant did more than simply tie up Heiser in order for Bejarano to sit on top of Heiser. Defendant was a full participant in the assault on Heiser. Defendant inflicted the blunt force trauma that both prevented Heiser from resisting the compressional asphyxiation and caused Heiser to need more oxygen, leading to his cardiac arrhythmia and death.
On this record, the jury could also have found that defendant alone was the person who inflicted the fatal blow, and thus was an “actual killer” (§ 190.2, subd. (b)) based on the evidence that defendant returned to Heiser's residence and inflicted a final punch that “put him to sleep.”
In sum, there was substantial evidence that defendant was an “actual killer” within the meaning of section 190.2, subdivision (b). Nevertheless, we will also consider whether substantial evidence supported a finding that defendant was not the actual killer but a major participant who acted with reckless indifference to human life, within the meaning of section 190.2, subdivision (d).
3. Major Participant/Reckless Indifference to Human Life Standards
Section 190.2, subdivision (d) provides in part that “every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true....”
In order to be found a “major participant” in the underlying felony (§ 190.2, subd. (d)), “a defendant's personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder.” (People v. Banks (2015) 61 Cal.4th 788, 802 (Banks).) For instance, a defendant who was “ ‘actively involved in every element' ” of the underlying felony and was “ ‘physically present during the entire sequence of criminal activity culminating in the murder' ” would likely meet the standard, whereas a defendant who merely sat in a car “ ‘away from the actual scene of the murders acting as the getaway driver to a robbery' ” would likely not. (Ibid., quoting Tison v. Arizona (1987) 481 U.S. 137, 158 (Tison); cf. People v. Williams (2015) 61 Cal.4th 1244, 1281 [defendant, who was not present at the carjacking/murder, was a major participant because he was “the founder, ringleader and mastermind behind” a criminal gang that was engaged in carjacking, he had directed the carjacking, he had armed the carjacker, and he had previously participated in similar carjackings].)
In determining whether a defendant was a major participant, a jury “must consider the totality of the circumstances.” (Banks, supra, 61 Cal.4th at p. 802.) The following factors are relevant to that determination: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Id. at p. 803, fn. omitted.)
To show that a defendant acted with “reckless indifference to human life” (§ 190.2, subd. (d)), the evidence must show that the defendant was “aware of and willingly involved in the violent manner in which the particular offense [was] committed.” (Banks, supra, 61 Cal.4that p. 801.) Mere “knowledge of the possible risk of death inherent in certain felonies (like armed robbery)” does not satisfy this standard. (Id. at p. 809.) Rather, defendants must have “ ‘subjectively appreciated that their acts were likely to result in the taking of innocent life' [citation].” (Id. at p. 802.)
In determining whether a defendant had the mental state of reckless indifference to human life, the following factors may be considered: whether the defendant knew there were weapons, whether the defendant used a weapon, and the number of weapons; whether the defendant was present at the crime, whether the defendant restrained the victim, and whether the defendant attempted to aid the victim; the duration of the interaction between the defendant and the victim; whether the defendant knew a coparticipant had a propensity for violence, had killed previously, or planned to kill the victim; and whether the defendant engaged in efforts to minimize the risk of violence. (People v. Clark (2016) 63 Cal.4th 522, 619 622 (Clark).)
The major participant and reckless indifference requirements “significantly overlap..., for the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.” (Tison, supra, 481 U.S. at p. 153.)
4. Major Participant Analysis
Defendant was substantially involved in the planning of the underlying crimes. Defendant and Bejarano both obtained gloves beforehand, showing that they were both planning to commit the home invasion robbery. Defendant participated in the discussion about how he and Bejarano would go into Heiser's house and tie him up. Defendant had participated in the Fregoso incident and in the planning of the Oakland incident, showing he was engaged in an ongoing planned pattern of criminal activity with the same coparticipants. Defendant's significant role in the planning of the home invasion robbery weighs toward a finding that he was a major participant. (See Banks, supra, 61 Cal.4th at p. 803.)
Defendant was also the person who tied Heiser up and the person who inflicted the blunt force trauma on Heiser by punching him. Defendant's role in the binding and assault, which included the additional punch when he returned to the residence, also weighs toward a finding that he was a major participant. Since the binding and assault significantly contributed to Heiser's death, defendant's actions were akin to the supplying or use of lethal weapons that supports a “major participant” finding. (See Banks, supra, 61 Cal.4th at p. 803.)
Defendant was aware of the dangers of a home invasion robbery that involved binding and punching the victim, because the Fregoso incident had involved serious violence and injury. Fregoso had been rendered unconscious by drugs, tied up, struck in the face, and rendered unconscious again by defendant and his coparticipants. The evidence thus showed defendant was aware that the nature of the planned crime and the conduct of his coparticipants had the potential for violence and death. (See Banks, supra, 61 Cal.4th at p. 803.)
Defendant's actions demonstrated that while he was “in a position to facilitate or prevent the actual murder” (Banks, supra, 61 Cal.4th at p. 803), he chose to facilitate it rather than prevent it. Defendant punched Heiser to stop him from resisting Bejarano, left Heiser without untying him, and later, after returning to the residence alone, punched Heiser again to “put him to sleep.”
Defendant's conduct “after lethal force was used” (Banks, supra, 61 Cal.4th at p. 803) further supports a finding that he was a major participant. Defendant not only returned to Heiser's residence and inflicted more force, but he also remained with his coparticipants after the incident. When Ortiz learned that Heiser had died, defendant expressed no concern or surprise; rather, he told Ortiz “not to worry about it.”
On the facts of this case, a reasonable jury could conclude that defendant was a major participant because his involvement in the robbery and murder was “substantial, greater than the actions of an ordinary aider and abettor to an ordinary felony murder.” (Banks, supra, 61 Cal.4th at p. 802.) Defendant was “ ‘actively involved in every element' ” of the robbery and burglary and was “ ‘physically present during the entire sequence of criminal activity culminating in the murder.' ” (Ibid.)
5. Reckless Indifference Analysis
Much of the above analysis applies to our examination of the evidence supporting a finding of reckless indifference to human life. (See Tison, supra, 481 U.S. at p. 153.) Again, although none of the participants brought weapons such as a knife or gun, defendant did use a cord to bind Heiser and his fists to punch Heiser. Defendant's actions, together with his prior participation in the Fregoso incident, showed he “knew there would be a likelihood of resistance and the need to meet that resistance with lethal force.” (Banks, supra, 61 Cal.4th at p. 811.)
Defendant's presence at the crime, acts of restraining and subduing the victim, and failure to aid the victimalso support a finding that he acted with reckless indifference to human life. (Clark, supra, 63 Cal.4th at p. 619.)
The duration of the underlying felony also arguably supports a finding of reckless indifference. (See Clark, supra, 63 Cal.4th at p. 620.) The plan was not to commit a quick crime at Heiser's residence. (Compare In re Taylor (2019) 34 Cal.App.5th 543, 558 [plan was for a “snatch and grab robbery”].) The plan involved tying Heiser up, giving the group more time to “ransack the house” and steal items. A jury could reasonably find that defendant knew there would not merely be a “limited” period of interaction with Heiser because, like Fregoso, Heiser was likely to resist. (Clark, supra, at p. 620.)
The Fregoso incident gave defendant the knowledge that his coparticipants had a propensity for violence. (Clark, supra, 63 Cal.4th at p. 621.) Although there was no evidence to show that defendant knew any of his coparticipants had previously killed anyone, defendant knew-through his participation in the Fregoso incident-that his coparticipants were likely to drug Heiser, render Heiser unconscious, and use significant physical force on Heiser.
Contrary to defendant's argument, the fact that Heiser was expected to be asleep does not show that defendant took steps to “minimize the risks of violence” (Clark, supra, 63 Cal.4th at p. 621) such that he necessarily lacked the mental state of reckless indifference to human life. The plan to tie up Heiser contemplated that Heiser would wake up and resist. The fact that both defendant and Bejarano went into the bedroom could show they believed it would take two people to ensure Heiser did not stop the robbery. This was not a case in which defendant planned a non violent encounter but his coparticipant “deviated from” the plan. (In re Scoggins (2020) 9 Cal.5th 667, 683 (Scoggins).) The evidence here showed defendant was aware that the planned robbery was likely to pose a serious risk of violence.
Defendant relies heavily on the fact that no weapons were involved in Heiser's death. However, “planning an unarmed robbery or a robbery involving the use of nonlethal weapons” can, under some circumstances, demonstrate a reckless indifference to human life. (Scoggins, supra, 9 Cal.5th at p. 683.) In this case, defendant was the person who tied up Heiser and punched Heiser while Bejarano sat on top of Heiser, whose wrists defendant had bound. Defendant was not a mere getaway driver or lookout; he was actively involved in subduing Heiser with physical force in order to effectuate the robbery and burglary. Defendant knew that he “had a good punch, ” and he used his punch to “put [Heiser] to sleep” before finally fleeing.
A reasonable jury could conclude that defendant acted with reckless indifference to human life, in that he was “aware of and willingly involved in the violent manner in which the particular offense [was] committed.” (Banks, supra, 61 Cal.4th at p. 801.) “A law abiding person in [defendant's] position would have perceived” that binding, beating, and sitting on Heiser “created a grave danger to his life.” (Garcia, supra, 46 Cal.App.5th at p. 148.)
In sum, substantial evidence supports a finding that, even if defendant was not an actual killer, he was a major participant who acted with reckless disregard to human life within the meaning of section 190.2, subdivision (d).
B. Strike Findings
In his direct appeal, defendant contends the terms of 25 years to life imposed for the robbery and burglary counts (counts 2 & 3) were unauthorized because the documentary evidence submitted to prove the strikes showed that the two convictions would count as only one strike in the future. In his habeas corpus petition, defendant provides additional documentation from the prior case and contends that his trial counsel was ineffective for failing to object when the trial court imposed the terms of 25 years to life. Defendant requests this court remand the matter so he can be sentenced as a “second strike[r].”
1. Proceedings Below
The information alleged that defendant had two prior convictions that qualified as strikes (§§ 667, subds. (b) (i), 1170.12): a robbery and a felony assault, both from Santa Clara County Superior Court No. C1108357. The information also alleged that the current robbery charge (count 2) was a serious felony (§ 667, subd. (a)).
Defendant waived his right to a jury trial on the prior conviction and strike allegations. Defendant then submitted on the section 969b packet, which was introduced by the prosecution.
The section 969b packet included documents from case No. C1108357, in which defendant was convicted of second degree robbery (§§ 211, 212.5, subd. (c)), felony assault (§ 245, subd. (a)(1)), and vehicle theft (Veh. Code, § 10851, subd. (a)), with great bodily injury allegations admitted as to the robbery and assault counts. The clerk's minutes from the change of plea hearing state that the robbery and assault counts would be “considered 1 strike for future strike.”
In the present case, the trial court found the strike and prior conviction allegations true. At defendant's sentencing hearing, the trial court imposed terms of 25 years to life for defendant's current robbery and burglary convictions based on its finding of two strike priors (see §§ 667, subd. (e)(2)(A)(ii), 1170.12, subd. (c)(2)(A)(ii)), but stayed the imposition of those terms pursuant to section 654.
2. Contentions - Direct Appeal
In his direct appeal, defendant contends there is insufficient evidence he suffered two prior strike convictions because the minute order from case No. C1108357 reflects that the prior robbery and assault convictions would constitute one strike in the future. The People contend that defendant forfeited this issue by failing to raise it in the trial court. The People point out that defendant did not object to the information that alleged two strikes, did not dispute the strike allegations, did not file a motion to dismiss one of the strikes, and did not object at sentencing. The People further contend that defendant failed to provide an adequate record for resolution of the issue.
3. Habeas Corpus Petition and Exhibits
In his petition for a writ of habeas corpus, defendant contends his trial counsel was ineffective for failing to object to the 25 years to life terms imposed for the robbery and burglary counts.
The exhibits to the habeas corpus petition include the reporter's transcript of defendant's change of plea hearing in case No. C1108357. At that hearing, defendant's attorney stated the terms of the plea agreement: defendant would plead no contest to several counts and admit great bodily injury allegations as to the robbery and assault counts, with an agreement that those counts “will be considered one strike in the future.” The trial court asked the prosecutor if that was the stipulation. The prosecutor agreed: “That's true, yes.”
The trial court in case No. C1108357 advised defendant that he was “entering a plea to a count that's deemed to be a strike, ” and then clarified, “Actually there's two counts that are strikes, but because of the agreement, it's going to be deemed to be only one for future consequences.” The trial court continued, “So that means, in the future, if you get convicted of any new felony, that strike would have the effect of doubling any future sentence.” The trial court later reminded defendant that his sentence in a future case “would be doubled.”
The exhibits to defendant's habeas corpus petition also include the reporter's transcript of defendant's sentencing hearing in case No. C1108357. At that hearing, defendant's attorney reiterated that although the robbery and assault counts were both strikes, “in reality we just have one strike, rather than two.”
4. Informal Response
After we requested an informal response to defendant's habeas corpus petition, the People conceded that the trial court erred by imposing a third strike sentence as to defendant's current robbery and burglary counts “[i]n light of the information presented in the habeas petition and exhibits concerning the parameters of [defendant's] 2011 plea and the mutual understanding of the parties.”
Based on the People's concession, which we find well taken, we will grant habeas relief. (See People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7 [habeas relief may be granted without issuance of an order to show cause or writ of habeas corpus where respondent stipulates to the requested relief by way of informal opposition].) The trial court shall resentence defendant on counts 2 and 3 pursuant to section 667, subdivision (e)(1) and section 1170.12, subdivision (c)(1).
C. Youth Offender Parole Hearing
Defendant, who was age 20 at the time of the offenses in this case, contends he is entitled to a youth offender parole hearing (§ 3051, subd. (a)(1)) under principles of equal protection. Defendant further contends that if his trial counsel's failure to request a youth offender parole hearing forfeited the issue for appeal, his trial counsel was ineffective.
Defendant was born in June 1994; the offenses occurred in February 2015.
A. Section 3051
“A youth offender parole hearing is a hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or younger... at the time of the controlling offense.” (§ 3051, subd. (a)(1).) Section 3051 requires a youth offender parole hearing during the 15th, 20th, or 25th year of a juvenile offender's incarceration, depending on the offender's “ ‘[c]ontrolling offense,' ” which is defined as “the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.” (Id., subd. (a)(2)(B).)
A defendant who will be entitled to a section 3051 youth offender parole hearing must be given an opportunity, at the time of sentencing, to make a record of any evidence that may be relevant at the eventual youth offender parole hearing. (People v. Franklin (2016) 63 Cal.4th 261, 284 (Franklin).)
Section 3051 “excludes several categories of juvenile offenders from eligibility for a youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at p. 277.) The statute does not apply “to cases in which sentencing occurs pursuant to” (§ 3051, subd. (h)) the Three Strikes law (§§ 667, subds. (b) (i), 1170.12) or the One Strike law (§ 667.61). (§ 3051, subd. (h).) The statute also does not apply in cases in which a person is sentenced to life without parole (LWOP) “for a controlling offense that was committed after the person had attained 18 years of age.” (Ibid.) And finally, the statute does not apply to anyone “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.” (Ibid.)
Here, defendant was sentenced to LWOP “for a controlling offense that was committed after [he] had attained 18 years of age” and, as to counts 2 and 3, he was sentenced pursuant to the Three Strikes law. (§ 3051, subd. (h).) Thus, under the express terms of the statute, defendant is not entitled to a youth offender parole hearing.
B. Equal Protection Principles
“The right to equal protection of the laws is guaranteed by the Fourteenth Amendment to the federal Constitution and article I, section 7 of the California Constitution. The ‘first prerequisite' to an equal protection claim is ‘ “a showing that ‘the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' ”...' ” (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1216.) Once such a showing is made, the burden shifts to the state to establish “ ‘ “ ‘not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.' ”' ” (Id. at p. 1217.)
Defendant contends that section 3051 violates equal protection in several ways. First, the statute treats offenders who were between the ages of 18 and 25 at the time of their offenses differently based on their sentence: LWOP offenders are not eligible for a youth offender parole hearing, whereas youthful offenders who were sentenced to life with the possibility of parole or a determinate term are eligible for a youth parole hearing. Second, the statute treats LWOP offenders differently based on their age at the time of the offense: LWOP offenders who were between the ages of 18 and 25 at the time of their offenses are not eligible for a youth offender parole hearing, while LWOP offenders who were under the age of 18 at the time of their offenses are eligible for a youth offender parole hearing. Third, the statute permits youth offender parole hearings in cases where the offender was sentenced to life with the possibility of parole for a homicide offense, but denies youth offender parole hearings in cases where the offender received a Three Strikes sentence for a non homicide offense.
C. Forfeiture/Ineffective Assistance of Counsel
The People assert that defendant forfeited his equal protection challenge to section 3051 by failing to object in the trial court. (See People v. Dunley (2016) 247 Cal.App.4th 1438, 1447 (Dunley) [“an equal protection claim may be forfeited if it is raised for the first time on appeal”].) In response to defendant's claim that his trial counsel was ineffective for failing to make such an objection, the People argue that defendant's trial counsel made a tactical decision not to object because an equal protection argument “was meritless and would be overruled.”
At the time of defendant's sentencing hearing in December 2018, there was little published case law addressing equal protection challenges to section 3051. Our Supreme Court had declined to resolve one such challenge. (See People v. Contreras (2018) 4 Cal.5th 349, 382.) Thus, the state of the law was not so clear that trial counsel could have tactically determined that an objection would have been without merit. Since the time of defendant's sentencing hearing, the case law has developed on the issues defendant now raises. We will exercise our discretion to reach the merits of defendant's equal protection argument. (See Dunley, supra, 247 Cal.App.4th at p. 1447.)
D. Analysis
A number of cases have now considered equal protection challenges to section 3051's distinctions regarding eligibility for a youth parole offender hearing.
There is currently a split of authority as to whether section 3051 violates equal protection by excluding youth offenders who were sentenced under the One Strike law (§ 667.61). Some Courts of Appeal have found that “section 3051's carve out for One Strike defendants violates principles of equal protection.” (People v. Edwards (2019) 34 Cal.App.5th 183, 197; see also In re Woods (2021) 62 Cal.App.5th 740, 760 [two-to-one decision], review granted June 16, 2021, S268740.) Other Courts of Appeal have rejected equal protection challenges to section 3051's exclusion of One Strike offenders. (People v. Williams (2020) 47 Cal.App.5th 475, 493, review granted Jul. 22, 2020, S262191; People v. Moseley (2021) 59 Cal.App.5th 1160, 1170 [two to one decision], review granted Apr. 14, 2021, S267309; People v. Miranda (2021) 62 Cal.App.5th 162, 186, review granted June 16, 2021, S268384.)
There appears to be no dispute as to the question whether section 3051 violates equal protection by excluding offenders sentenced under the Three Strikes law. The only published case on point held that “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.” (People v. Wilkes (2020) 46 Cal.App.5th 1159, 1167 (Wilkes).) The Wilkes court explained, “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' [citation]-presents too great a risk of recidivism to allow the possibility of early parole.” (Id. at p. 1166.)
Similarly, published case law is in accord regarding the question whether section 3051 violates equal protection by excluding youth offenders sentenced to LWOP. The cases that have addressed this question have upheld the statute. (People v. Jackson (2021) 61 Cal.App.5th 189, 200; People v. Acosta (2021) 60 Cal.App.5th 769, 780 (Acosta); In re Murray (2021) 63 Cal.App.5th 184, 192 (Murray), petn. review filed April 23, 2021, S268415; In re Williams (2020) 57 Cal.App.5th 427, 436; see also In re Jones (2019) 42 Cal.App.5th 477, 483 [§ 1170, subd. (d)(2) does not violate equal protection by precluding resentencing of LWOP offenders who were between 18 and 25 years old at the time of their offenses while allowing resentencing of LWOP offenders who were under age 18 at the time of their offenses].)
Division Seven of the Second District declined to reach an equal protection challenge to section 3051's exclusion of LWOP offenders who were between the ages of 18 and 25 at the time of their crimes, in People v. Montelongo (2020) 55 Cal.App.5th 1016, 1030, footnote 8, because the claim was raised in the defendant's reply brief. In a statement of dissent filed upon the denial of review in that case, Justice Liu observed that “there is a substantial question whether section 3051's exclusion of 18 to 25 year olds sentenced to life without parole violates equal protection, ” and he called upon the Legislature to reconsider the statute. (Id. at p. 1040 (dis. statement of Liu, J.).)
In Acosta, Division Three of the Fourth District Court of Appeal reviewed the purpose and legislative history of section 3051, noting that the statute was enacted “in response to a series of decisions concerning Eighth Amendment limitations on juvenile sentencing.” (Acosta, supra, 60 Cal.App.5th at pp. 775 776; see Graham v. Florida (2010) 560 U.S. 48, 82 [LWOP sentences for juvenile offenders who did not commit homicide are unconstitutional]; Miller v. Alabama (2012) 567 U.S. 460, 465 (Miller)[mandatory LWOP sentences for offenders who were under age 18 at the time of their offenses violate the Eighth Amendment]; People v. Caballero (2012) 55 Cal.4th 262, 268 [“sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment”].)
Section 3051's “stated purpose was ‘to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity,' ” in accordance with those cases. (Acosta, supra, 60 Cal.App.5th at p. 776.) Although section 3051 originally applied only to juvenile offenders, it was expanded incrementally to apply to offenders who committed crimes when they were age 25 or younger. (Acosta, supra, at pp. 776 777.)
The Acosta court next concluded that, for the purpose of section 3051, “young adult LWOP offenders are similarly situated to young adult offenders sentenced to life and juvenile offenders sentenced to life or LWOP.” (Acosta, supra, 60 Cal.App.5th at p. 778.) The court explained that whether under 18 or “ ‘slightly older,' ” offenders sentenced to LWOP “ ‘are similarly situated for the purpose of evaluating whether they have outgrown the youthful impulses that led to the commission of their offenses.' ” (Id. at p. 779.) The court also found that “ ‘a person who committed an offense between 18 and 25 years of age serving a sentence permitting parole and a person who committed an offense at the same age serving an LWOP sentence are similarly situated' ” for the same reason. (Ibid.)
However, the Acosta court determined that there is a rational basis for the differential treatment in section 3051. First, juvenile LWOP offenders and young adult LWOP offenders may be treated differently simply because of their age, since mandatory LWOP sentences for juveniles are unconstitutional. (Acosta, supra, 60 Cal.App.5th at pp. 779 780; see id. at p. 777.) Second, young adult LWOP offenders may be treated differently from young adult offenders serving non LWOP sentences because of “the severity of the crime committed.” (Id. at p. 780.) Since the Legislature has reserved LWOP sentences for only the most “ ‘morally depraved and... injurious' ” crimes, it is reasonable to also determine that even youthful offenders who commit those crimes should be incarcerated for life. (Ibid.)
The Acosta court expressed “some reservations” about its analysis, noting the “public policy purpose of the statute... is to permit the eventual evaluation of a young offender who committed a serious offense before reaching full cognitive and emotional maturity with an eye toward determining whether that individual has become fit to return to society.” (Acosta, supra, 60 Cal.App.5th at p. 781.) The court invited the Legislature to reconsider the statute in light of those “policy concerns.” (Ibid.)
In Murray, Division Two of the First District Court of Appeal similarly concluded that even assuming juvenile and youthful LWOP offenders are similarly situated, the defendant had “not demonstrated there is no rational basis for treating the two groups in an unequal manner.” (Murray, supra, 63 Cal.App.5th at p. 191.) The court “recognize[d]” and “share[d]” (id. at p. 192) the concerns expressed by the Acosta court and others, and likewise called on the Legislature to “revisit where it has drawn the line with section 3051, subdivision (h), and to reconsider whether a youthful offender who was sentenced to LWOP for a crime committed at an age while cognitive brain development was still ongoing should be afforded the possibility of release like those under 18 years old at the time of their offense.” (Id. at p. 193.)
We share the same concerns as expressed by our sister courts. However, we agree with those courts that section 3051's distinctions regarding LWOP offenders' and Three Strikes offenders' eligibility for youth offender parole hearings do not violate equal protection. We address each of the challenged distinctions below.
First, we address section 3051's distinction between non LWOP offenders who were between the ages of 18 and 25 at the time of their offenses and LWOP offenders who were also between the ages of 18 and 25 at the time of their offenses. We will assume that the two groups are similarly situated, as defendant claims, “for the purpose of determining whether they have outgrown the youthful impulses that led to the commission of their offenses.” We agree with the Acosta court that the two groups may be treated differently because of “the severity of the crime committed.” (Acosta, supra, 60 Cal.App.5th at p. 780.) As the Acosta court noted, the Legislature has reserved LWOP sentences for only the most “ ‘morally depraved and... injurious' ” crimes, and thus there is a rational basis for determining that even youthful offenders who commit those crimes should be incarcerated for life. (Ibid.)
Second, we address section 3051's distinction between LWOP offenders who were between the ages of 18 and 25 at the time of their offenses and LWOP offenders who were under the age of 18 at the time of their offenses. Again, we will assume that these two groups are, as defendant argues, “similarly situated for the purpose of evaluating whether they have outgrown the youthful impulses that led to the commission of their offenses.” It is rational for the Legislature to treat juvenile LWOP offenders and young adult LWOP offenders differently, because mandatory LWOP sentences for juveniles are unconstitutional, whereas mandatory LWOP sentences may be imposed on those who commit their offenses when they are over age 18. (See Acosta, supra, 60 Cal.App.5th at pp. 779 780; Miller, supra, 567 U.S. at p. 465.)
Third, we address section 3051's distinction between youth offenders who committed homicide offenses but are sentenced to life with the possibility of parole and youth offenders who committed non homicide offenses but received a Three Strikes sentence. As explained in Wilkes, supra, 46 Cal.App.5th at page 1166, the Legislature rationally could determine that, for purposes of allowing the possibility of early parole, recidivist offenders who have engaged in “ ‘significant antisocial behavior and who ha[ve] not benefited from the intervention of the criminal justice system' ” may be treated differently from non recidivist offenders, even those whose criminal conduct resulted in a person's death.
In sum, we reject defendant's equal protection challenge to section 3051.
IV. Disposition
The judgment is affirmed. The petition for writ of habeas corpus is granted. The trial court is directed to resentence defendant on counts 2 and 3 pursuant to Penal Code sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1).
WE CONCUR: Elia, Acting P. J. Grover, J.
[*] Judge of the Santa Cruz County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.