Opinion
F084824
01-17-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT COTTER, Defendant and Appellant.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F21905562, James Kelley, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
POOCHIGIAN, ACTING P.J.
INTRODUCTION
Appellant and defendant Robert Cotter (appellant) pled no contest to two counts of first degree murder and admitted two multiple-murder special-circumstance allegations and two personally use of a firearm allegations. The trial court sentenced appellant to 50 years for the firearm allegations plus two terms of life without the possibility of parole (LWOP).
On appeal, appellant claims that: (1) the trial court abused its discretion when it declined to mitigate the sentence on the firearm enhancements; (2) his sentence is unauthorized because he can only be sentenced for one multiple-murder special circumstance; (3) LWOP is a cruel and/or unusual sentence when imposed on a mentally ill teenager; and (4) Penal Code section 3051 violates equal protection by excluding 18-year-old defendants sentenced to LWOP from youthful parole consideration. The People contest appellant's first, third and fourth claims, but concede appellant's second claim has merit and that the court should strike one of the multiple-murder special circumstance allegations but disagree with appellant that the matter should be remanded for full resentencing.
All further undesignated statutory references are to the Penal Code unless otherwise stated.
We conclude only one multiple-murder special circumstance should have been alleged and admitted. We order one of the special circumstance allegations stricken but in all other respects, affirm the judgment.
FACTUAL BACKGROUND
On March 17, 2022, appellant entered a plea of not guilty and not guilty by reason of insanity. The court appointed Dr. Paula Willis and Dr. Richard Kendall to evaluate appellant. On May 20, 2022, appellant entered a change of plea to all the counts and enhancements charged in the complaint. Appellant pled no contest to two counts of first degree murder (§ 187, subd. (a)), admitting the multiple murder allegation (§ 190.2 subd. (a)(3)) and the intentionally discharging a firearm which proximately caused death enhancements (§ 12022.53, subd. (d)) in each case. Appellant entered his plea without a plea agreement.
The trial court sentenced appellant to two consecutive 25 years to life terms for the firearm enhancements followed by two concurrent terms of LWOP for the two first-degree-murder convictions with special circumstance allegations. On July 5, 2022, the parties filed a stipulation with the court to issue a corrected minute order and abstract of judgment to reflect concurrent LWOP terms for counts 1 and 2. The stipulation stated that the "total term to be served ... should be 50 years to life, followed by [two] concurrent terms of [LWOP]." The first amended abstract of judgment and the first corrected minute order still reflect that the LWOP terms for counts 1 and 2 are consecutive.
The People ask the Court to order the trial court to correct the abstract of judgment and minute order to reflect that the two 25 years to life terms for the firearm enhancements for counts 1 and 2 are consecutive followed by two concurrent LWOP terms for counts 1 and 2. Additionally, the People ask the Court to order the trial court to correct the abstract of judgment to reflect that appellant was convicted by a plea for count 2. We agree that the minute order and abstract of judgment do not reflect concurrent LWOP terms for counts 1 and 2, nor does the abstract of judgment indicate that the murder conviction for count 2 was by plea. Since a court has inherent power to correct a clerical error in its records at any time to make the records state the true facts, we order the trial court to correct both the minute order and abstract of judgment. (People v. Baker (2021) 10 Cal.5th 1044, 1109; People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705.)
DISCUSSION
I. The Trial Court Did Not Abuse its Discretion in Declining to Strike the Firearm Enhancements.
Appellant claims the trial court abused its discretion when it declined to mitigate the sentence by striking the firearm enhancements. The People disagree and claim the court properly exercised its discretion when it declined to strike the firearm enhancements. We conclude the trial court did not abuse its discretion in declining to strike the firearm enhancements.
A. Relevant Factual and Procedural History
At sentencing, the trial court stated it "read and considered the report and recommendation" from the probation department. The probation officer's report listed the following circumstances in mitigation: "defendant has no prior record, or an insignificant record of criminal conduct, considering the recency and frequency of prior crimes" and "defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process."
The court also "read and considered the invitation to strike the [firearm] enhancement filed by the defense and a letter from the [appellant's] grandmother." Appellant argued that (1) there were two enhancements for each count and that the court should impose only one enhancement and strike the firearm enhancements (§ 1385, subd. (c)(3)(B)); (2) the application of the firearm enhancements would result in a sentence over 20 years (id., subd. (c)(3)(C); Cal. Rules of Court, rule 4.423(b)(10) ); (3) the current offense is connected to mental illness (§ 1385, subd (c)(3)(D); rule 4.423(b)(2)); (4) the current offense is connected to prior victimization or childhood trauma (§ 1385, subd. (c)(3)(E); rule 4.23(b)(4)); (5) appellant had no prior criminal history (rule 4.423(b)(1)); (6) appellant was under 26 years of age at the time of the offense (rule 4.423(b)(6)); and (7) appellant voluntarily acknowledged wrongdoing before at an early stage of the criminal process (rule 4.423(b)(8)).
All further references to undesignated rules are to the California Rules of Court unless otherwise stated.
The People acknowledged at sentencing "there's no doubt that [appellant] had a difficult life," which they characterized as "tragic and atrocious." The People also commented that "society failed this family long before the commission of the instant crimes." The People argued, however, that appellant made decisions here: "[h]orrible, atrocious and awful decisions."
Specifically, the People noted that "[o]n the date of the murder, [appellant] called 911 and he blamed the murders as a murder suicide perpetrated by his 15-year-old brother with autism spectrum disorder," and it was not until "two months of police investigation that Fresno Police Department detectives revealed this was a cold, calculated murder." It was determined that appellant waited until around 3:00 a.m. to commit the murders, while his dad and brother were sleeping. It was discovered that appellant planned the murders in advance by running searches such as how to do a suicide step by step, how extensive and in depth is the police investigation of a suicide, how do police rule a suicide and how do police investigate suicide cases, how to shoot a Colt 1911, how a Colt 1911 works, how to know if a gun is loaded, and what happens to your stimulus check if you die. The People explained that on the day of the murders, appellant shot his father once in the head while asleep with a gun similar to a Colt 1911 and then shot him in the back. Appellant's brother woke up and started to run away, but appellant pulled his brother by the collar and shot him in the head. The People agreed with the probation report's summarization that "the [appellant] fabricated an elaborate story of murder suicide to avoid responsibility. That was planned for before the murder actually occurred."
Defense counsel argued that appellant had taken responsibility of the murders by pleading to the crimes early. However, defense counsel asked the court to consider the mitigating circumstances including appellant's difficult upbringing that "would be characterized as traumatic and a situation where he didn't have any control over the situation in which he was growing up." Additionally, defense counsel pointed out that appellant was only 18 years old at the time of the offense, had no prior criminal history and that there were "some implication of a mental illness." Defense counsel argued before the court that appellant falls within the spirit of section 1358, which allows the court to strike the punishment for the firearm enhancements.
The court made the following findings: "I agree that the [appellant] did not have an ideal upbringing. I think there are numerous people who have had upbringings such as this that did not result in double murder. In addition, as [the People] pointed out, the [appellant] gave a lot of thought to his options and the time that he had to consider those options, he spent trying to cover up his potential crime.
"I do recall [appellant] wanting to plead to this at an early stage. I think it might have been the first day he was in court and I told him I wasn't going to take his plea until he had ample time to talk to his attorney and give some thought to what he was doing. And then the next court appearance after having had that meeting, I took his plea. So I do agree with [defense counsel] that he does want and did want to take responsibility for what he did, but I agree with [the People] that this matter wasn't something he decided at the last minute, something that was impulsive. This is something that he carefully planned and I don't know what his issue with his father was that wanted to cause him to commit a homicide, but to execute his brother in this fashion was beyond anything that I can justify, that I think is justifiable. It was cold-blooded murder of a kid that had done nothing wrong."
The court then issued the following sentence: "The [c]ourt will deny probation in this case and as to [c]ount [1], the [c]ourt will impose the punishment of life without possibility of parole. The [c]ourt will also impose 25 to life under 12022.53(d). [|¶ The [c]ourt will make the same order as to [c]ount [2], life without possibility of parole, and then 25 to life. [|¶ And those are consecutive terms to the base term. And if the [c]ourt did have the discretion to strike the multiple murder enhancement, it will not be appropriate in this case. And the 12022.53(d), this is the exact type of crime that I believe the legislature contemplated when passing this law and the gun violence aspect of it is exactly what 12022.53(d) contemplated."
B. Standard of Review
An appellate court reviews a trial court's discretionary decision to dismiss or strike a sentencing allegation under section 1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373-374 (Carmony); People v. Mendoza (2023) 88 Cal.App.5th 287, 298; People v. Pearson (2019) 38 Cal.App.5th 112, 116 (Pearson).)
In determining whether the trial court abused its discretion, we are guided by two fundamental precepts. "First,' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." '" (Carmony, supra, 33 Cal.4th at pp. 376-377; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831; Pearson, supra, 38 Cal.App.5th at p. 116.) "Second, a' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'" '" (Carmony, at p. 377; Alvarez, at p. 978, quoting People v. Preyer (1985) 164 Cal.App.3d 568, 573; Pearson, at p. 116.) "Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, at p. 377.)
C. Applicable Law
Section 12022.53, subdivision (h) gives the trial court discretion" 'in the interest of justice pursuant to Section 1385 and at the time of sentencing, to strike or dismiss an enhancement otherwise required to be imposed by this section.'" (Pearson, supra, 38 Cal.App.5th at p. 116.)
California Rules of Court, rule 4.428(b) provides, in relevant part that, "[i]n determining whether to strike ... the punishment for the enhancement, the court may consider the effect that striking the enhancement would have on the status of the crime as a strike, the accurate reflection of the defendant's criminal conduct on his ... record, the effect it may have on the award of custody credits, and any other relevant consideration."
"[U]nless the record affirmatively reflects otherwise," the court is deemed to have considered the factors enumerated in the rules. (Cal. Rules of Court, rule 4.409; Pearson, supra, 38 Cal.App.5th at p. 117; People v. Holguin (1989) 213 Cal.App.3d 1308, 13171318; see Evid. Code, § 664 [presumption that official duty has been regularly performed].)
D. Analysis
Appellant argues that the trial court abused its discretion when it failed to consider all the mitigating circumstances at sentencing, including that he initially pled not guilty by reason of insanity and was diagnosed with schizotypal personality disorder. Specifically, appellant argues the court failed to consider most, if not all, of the following circumstances in mitigation: that "he had no prior record (rule 4.423(b)(1)); he was suffering from a mental or physical condition that significantly reduced culpability for the murders (Cal. Rules of Court, rule 4.423(b)(2)); he experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, which was a factor in the murders' commission (id., rule 4.423(b)(3)); the commission of the murders were connected to his prior victimization or childhood trauma, or mental illness as defined by section 1385, subdivision (c) (Cal. Rules of Court, rule 4.423(b)(4)); he is and was under the age of 26 years, i.e., 18 years six months, at the time of the murders (id., rule 4.423(b)(6)); he voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process (id., rule 4.423(b)(8)); application of an enhancement could result in a sentence over 20 years (id., rule 4.423(b)(10)); and multiple enhancements were alleged in a single case (id., rule 4.423(b)(11)). Appellant argues that "[b]ecause the trial court ignored statutory mitigation in denying the request to reduce his firearms enhancements, this [c]ourt should remand the matter for a new sentencing hearing." The People argue that the record shows all the mitigating factors mentioned by appellant were before the court and necessarily considered by it.
Although appellant argues the court failed to consider mitigating circumstances, the record shows the court considered each of the mitigating circumstances raised by appellant on appeal. The court said that it had read and considered the following: the probation officer's report and recommendation; the defense's invitation to strike the firearm enhancements; and a letter from appellant's grandmother. Further, the record shows defense counsel asked the trial court at the sentencing hearing to strike the firearm enhancements based on the same specific mitigating circumstances he raises here on appeal. Nothing in the record affirmatively establishes that the trial court did not consider these relevant factors. (See Pearson, supra, 38 Cal.App.5th at p. 117; Cal. Rules of Court, rule 4.409 ["Relevant factors enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise"].)" Not only does the record reflect that each of appellant's factors in mitigation were raised before the court at sentencing, but it also reflects the court's comments pointing out certain specific factors. While the court noted appellant acknowledged wrongdoing early and did not have a good upbringing, it found these factors were outweighed by aggravating circumstances that he carefully planned these murders, including the "cold-blooded murder" of his brother who had done nothing wrong.
On this record, appellant fails to demonstrate the trial court abused its discretion."' "The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary." '" (Carmony, supra, 33 Cal.4th at p. 376.)"' "In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." '" (Ibid.) The trial court considered the factors it was required to consider when sentencing a felony defendant; denying appellant's request to strike the firearm enhancement was squarely within the bounds of the trial court's discretion. (Pearson, supra, 38 Cal.App.5th at p. 118.) Accordingly, we reject appellant's first claim.
II. Duplicative Use of Multiple-Murder Special Circumstance
In appellant's second claim, he contends that he can be sentenced for only one multiple-murder special circumstance, and therefore, his second LWOP sentence is unauthorized. The People concede that only one multiple-murder special-circumstance allegation should have been charged and agree that the duplicative special circumstance finding should be set aside. However, the People contend that appellant's sentence on both murder counts, which were enhanced to LWOP in light of the special circumstance finding, should remain. We conclude only one multiple-murder special-circumstance allegation should have been charged but affirm the two LWOP sentences.
A. Relevant Procedural History
The complaint alleged as a special circumstance to counts 1 and 2 that multiple murders were committed pursuant to section 190.2, subdivision (a)(3)). Appellant admitted to both special circumstance allegations. Appellant was sentenced to two concurrent terms of LWOP for the two first degree murder convictions with special circumstance allegations.
B. Relevant Law
Section 190.2, subdivision (a) provides: "The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for [LWOP] if one or more of the following special circumstances has been found ... to be true: [¶] • - [¶] (3) The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree."
C. Analysis
Appellant argues that section 190.2, subdivision (a)(3), does not permit a separate multiple-murder special circumstance to be attached to each murder conviction sustained because such duplicative use of multiple-murder special circumstances "artificially inflates the seriousness of the defendant's conduct." (People v. Jones (1991) 53 Cal.3d 1115, 1148 (Jones).) He states that this court therefore should strike one of the special circumstance findings. (People v. Danks (2004) 32 Cal.4th 269, 315.) Appellant further argues the trial court did not reflect any understanding that it had the discretion to impose less than a sentence of LWOP on one of the counts of murder and the case should be remanded for the trial court to exercise its discretion and to consider appellant's mental illness, his familial history of abuse and neglect, and his youth in determining whether a sentence of 25 years to life is appropriate for one or both of the murder convictions. Appellant argues that the court must remand for a full resentencing.
Our California Supreme Court held that, where there are two murders, only one multiple-murder special circumstance may be alleged. (Jones, supra, 53 Cal.3d at p. 1148.) "[W]hen a defendant kills two persons the People should allege only one multiple-murder special circumstance; the use of two such special circumstance allegations artificially inflates the seriousness of the defendant's conduct." (Ibid.; People v. Crandell (1988) 46 Cal.3d 833, 880, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365 [a defendant charged with two murders may be charged with only one multiple-murder special circumstance]; People v. Allen (1986) 42 Cal.3d 1222, 1273 (Allen); People v. Harris (1984) 36 Cal.3d 36, 67 (plur. opn. of Broussard, J.).)
Here, the People alleged a multiple-murder special circumstance allegation for both count 1 and count 2 in the complaint. Appellant admitted both allegations and was sentenced accordingly. However, only one of the multiple-murder special circumstances, separate from the individual murder counts, should have been alleged. (See Jones, supra, 53 Cal.3d at p. 1148; People v. Halvorsen (2007) 42 Cal.4th 379, 422; Allen, supra, 42 Cal.3d at p. 1273.) As explained by our Supreme Court, '[t]he plain words of section 190.2(a)(3) -" 'The defendant has in this proceeding been convicted of more than one offense of murder' - suggest that no matter how many murder charges are tried together, they constitute a single multiple-murder special circumstance." (People v. Anderson (1987) 43 Cal.3d 1104, 1150, superseded by statute on other grounds in People v. Mil (2012) 53 Cal.4th 400, 408.) Therefore," 'appropriate charging papers should allege one multiple-murder special circumstance separate from the individual murder counts.'" (Anderson, at p. 1150; Allen, at p. 1273.) The People agree that only one multiple-murder special circumstance, separate from the individual murder counts, should have been alleged. We conclude the appropriate remedy is to strike one of the two special-circumstance findings. (See Halvorsen, at p. 422; Allen, at p. 1273; Jones, at pp. 1148-1149; People v. Gallego (1990) 52 Cal.3d 115, 201; People v. Caro (1988) 46 Cal.3d 1035, 1051.)
We reject appellant's unsupported claim that his LWOP sentence for the second murder conviction is unauthorized because "[w]ithout that [second special-circumstance] finding, one of the counts of murder is simply first-degree murder, for which the maximum sentence is 25 years to life."
Where a defendant is found guilty of a count of first degree murder, and in the same proceeding the defendant is convicted of more than one offense of first or second degree murder, section 190.2 removes the possibility that the defendant may be sentenced to 25 years to life in prison, and leaves as the only sentencing options death or LWOP. (§ 190.2, subd. (a)(3).) Here, appellant has been convicted of more than one first degree murder offenses in the same proceeding. As such, it follows that the punishment of life without the possibility of parole for both offenses is authorized.
Second, case law appears to support that the trial court is not precluded from imposing a separate consecutive sentence of LWOP for each first degree murder conviction based on the single multiple-murder special circumstance. (See People v. Garnica (1994) 29 Cal.App.4th 1558, 1563 (Garnica); People v. Anderson, supra, 43 Cal.3d at p. 1150; Harris, supra, 36 Cal.3d at p. 67 (plur. opn. of Broussard, J.), disapproved on other grounds in People v. Bell (1989) 49 Cal.3d 502, 526, fn. 12, abrogated on other grounds in People v. Melton (1988) 44 Cal.3d 713, 765-767.)
In People v. Sanders (1995) 11 Cal.4th 475, 537, the court struck three of the four multiple-murder special circumstance allegations as duplicative. (Ibid.) The court did not remand the matter to the trial court for resentencing or to reduce the sentence on the three murder convictions to 25 years to life. Rather, the court stated it "otherwise affirm[ed] the judgment." (Id. at p. 566.) In People v. Diaz (1992) 3 Cal.4th 495, 565, the court struck 11 of the 12 multiple-murder special-circumstance allegations and did not order the defendant's sentence reduced or remanded but otherwise affirmed the judgment. (Id. at p. 576.)
In Garnica, the Fourth District Court of Appeal rejected a similar argument that "because there can be only one multiple-murder special-circumstance allegation, there can be only one LWOP sentence." (Garnica, supra, 29 Cal.App.4th at p. 1562.) The Garnica court reasoned that: "The multiple-murder special circumstance is a legislative choice to treat as deserving of the most severe punishment a murderer convicted of more than one murder. In any one proceeding in which such a finding is made, the fact that a murder is one of multiple murders applies equally to all the murders of which the defendant is convicted. Each of the murders is deemed the more heinous because it is one of multiple killings. We cannot gainsay this legislative determination." (Id. at p. 1563.) Contrary to what appellant asserts, the Garnica court does not say "both murders in a multiple murder case should be treated as equally heinous" but that each "is deemed more heinous because it is one of multiple killings." As courts have recognized, "there is no crime more depraved or more injurious than intentional first degree murder .... This is doubly true in the case of a double murder ...." (In re Williams (2020) 57 Cal.App.5th 427, 438 (In re Williams); People v. Contreras (2018) 4 Cal.5th 349, 382 (Contreras) [nonhomicide crimes cannot compare to murder crimes in their"' "severity and irrevocability"' "].) A defendant's commission of more than one murder that results in the loss of more than one life is obviously more heinous than a defendant's commission of just one murder that results in the loss of only one life. (See Garnica, at p. 1563.)
We disagree with appellant that the reasoning in Garnica is faulty. The court in Garnica looked to the California Supreme Court and relied on multiple cases that had expressly held it is proper to require the jury to make separate penalty findings on each of the capital-liable murder counts. (Garnica, supra, 29 Cal.App.4th at p. 1563.) In People v. Sandoval (1992) 4 Cal.4th 155, the defendant was convicted of four counts of first degree murder with a multiple-murder special-circumstance finding (§ 190.3, subd. (a)(3)), one count of attempted murder, and a finding that defendant personally used a firearm in the commission of each offense. (Sandoval, at pp. 167-168.) The jury returned a verdict of death for one murder conviction and life without the possibility of parole as to the remaining murder convictions. (Id. at p. 168.) On appeal the defendant contended the court erred by requiring the jury to return a separate penalty verdict as to each murder victim. However, the court stated that "[a] defendant who kills more than one person may be convicted and punished for each murder" and "the jury [may] return a separate penalty verdict for each capital murder count." (Id. at p. 197.) Consequently, it upheld one verdict of death and three verdicts of LWOP for four counts of murder in which the sole special circumstance was an allegation of multiple murder. (Ibid.) Although appellant argues the defendant in Sandoval "did not challenge whether a single multiple[-]murder special circumstance could support more than one death sentence" it is highly persuasive that the court affirmed the defendant's one death sentence and four LWOP sentences based on one multiple-murder special circumstance finding. (See id. at pp. 167-168.)
The defendant in People v. Bittaker (1989) 48 Cal.3d 1046 was convicted of first degree murder of five victims and was given separate death verdicts as to each murder victim. While the jury found true 20 multiple-murder special-circumstance allegations, the court held that only "[o]ne such special circumstance would suffice to determine that defendant had in this proceeding been convicted of more than one murder; the remaining [19] are superfluous." (Id. at p. 1102.) The court held that "[a] single valid specialcircumstance finding was sufficient to determine that defendant is eligible for the death penalty." (Ibid.) And any errors involving additional special circumstances, "do not undermine the verdict." (Ibid.) Likewise, here, the error regarding one additional multiple-murder special-circumstance allegation does not undermine the sentence.
Additionally, in People v. Bonin (1988) 46 Cal.3d 659, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1, a jury found the defendant guilty of four counts of murder and found true four multiple-murder special-circumstance allegations and four felony-murder-robbery special-circumstance allegations; defendant received the death penalty for each of the four murder convictions. (Id. at p. 668.) On appeal, the court agreed that it was error for the prosecution to allege more than one multiple-murder special-circumstance allegation. (Id. at p. 691.) The court vacated three of the four special circumstance allegations but upheld the four death penalties for the four murders. (Ibid.; see also id. at pp. 702-703.)
Based on these authorities, we conclude that striking the extra multiple-murder special-circumstance allegation does not change to outcome of the LWOP sentences. We affirm the LWOP sentence for each murder conviction.
III. Appellant's LWOP Sentences Do Not Violate Federal and State Proscriptions Against Cruel and/or Unusual Punishment
Appellant claims that it is cruel and/or usual punishment to impose life without parole on a mentally ill teenager. The People contend appellant's LWOP sentences do not violate federal or state proscriptions against cruel and/or unusual punishment. We agree with the People and reject appellant's claim.
A. Standard of Review
An Eighth Amendment challenge involves a question of law, which we review de novo. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1368; People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)
B. Applicable Law
The Eighth Amendment prohibits only sentences that are" 'grossly disproportionate to his or her individual culpability for the commitment offense.'" (In re Williams, supra, 57 Cal.App.5th at p. 437; Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of Kennedy, J.) [Eighth Amendment "forbids only extreme sentences that are 'grossly disproportionate' to the crime"].) Reviewing courts must" 'grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.'" (Harmelin, at p. 999 (conc. opn. of Kennedy, J.), quoting Solem v. Helm (1983) 463 U.S. 277, 290; People v. Edwards (2019) 34 Cal.App.5th 183, 190-191 (Edwards).)
"' "Article I, section 17, of the California Constitution separately and independently lays down the same prohibition" '" as the Eighth Amendment. (Edwards, supra, 34 Cal.App.5th at p. 191; People v. Marshall (1990) 50 Cal.3d 907, 938, quoting People v. Poggi (1988) 45 Cal.3d 306, 349 (conc. &dis. opn. of Mosk, J.).) A punishment may violate article I, section 17 of the California Constitution if "it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted, superseded by statute on another ground as explained in People v. West (1999) 70 Cal.App.4th 248, 256.) It requires that we "examine the circumstances of the offense" and the defendant in determining whether the "the penalty imposed is 'grossly disproportionate to the defendant's culpability.'" (People v. Cox (2003) 30 Cal.4th 916, 969-970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, quoting People v. Dillon (1983) 34 Cal.3d 441, 479, superseded by statute on another ground as explained in People v. Sifuentes (2022) 83 Cal.App.5th 217, 228.) We assess three factors in making this determination: (1) the nature of the offense and the offender, and the degree of danger posed to society; (2) a comparison with sentences for more serious offenses under California law; and (3) a comparison with sentences imposed by other states for the same offense. (In re Lynch, at pp. 425-427; Edwards, at p. 191.)
Whether a sentence is "grossly disproportionate" to an offense is measured by" 'circumstances existing at the time of the offense.'" (In re Williams, supra, 57 Cal.App.5th at p. 437.)"' "[A] petitioner attacking his sentence as cruel or unusual must demonstrate his punishment is disproportionate in light of (1) the nature of the offense and defendant's background, (2) the punishment for more serious offenses, or (3) punishment for similar offenses in other jurisdictions." '" (Ibid.; see also People v. Mendez (2010) 188 Cal.App.4th 47, 64-65.)
C. Analysis
Appellant claims his LWOP sentence amounts to cruel and/or unusual punishment under both state and federal standards because he was 18 years six months old and mentally ill when he committed the murders. The People contend appellant fails to demonstrate he was mentally ill when he committed the murders, and that regardless, as an adult, his LWOP sentences do not violate federal or state proscriptions against cruel and/or unusual punishment.
1. Young Adults
a. Eighth Amendment
"The United States Supreme Court has interpreted the Eighth Amendment to impose unique constraints on the sentencing of juveniles who commit serious crimes. This case law reflects the principle that 'children are constitutionally different from adults for purposes of sentencing.'" (Contreras, supra, 4 Cal.5th at p. 359; Miller v. Alabama (2012) 567 U.S. 460, 471 (Miller).) "From this principle, the high court has derived a number of limitations on juvenile sentencing: (1) no individual may be executed for an offense committed when he or she was a juvenile (Roper [v. Simmons (2005) 543 U.S. 551, 578]); (2) no juvenile who commits a nonhomicide offense may be sentenced to LWOP (Graham [v. Florida (2010) 560 U.S. 48, 74]); and (3) no juvenile who commits a homicide offense may be automatically sentenced to LWOP (Miller, at p. [465])." (People v. Franklin (2016) 63 Cal.4th 261, 273-274; Contreras, at p. 359.)
In Roper v. Simmons, supra, 543 U.S. 551 (Roper), the United States Supreme Court held that the Eighth Amendment prohibits the imposition of the death penalty on juvenile offenders under 18 years old. (Roper, at p. 568.) It explained that "[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest." (Id. at p. 574.) In Miller, supra, 567 U.S. 460, the United States Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders." (Miller, at p. 479; Graham v. Florida, supra, 560 U.S. at p. 75 ["A State is not required to guarantee eventual freedom," but must provide "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."].)
Notably, our Supreme Court has refused to extend the principles under Miller, Graham and Roper to young adults 18 years of age or older. (See People v. Flores (2020) 9 Cal.5th 371, 429-430; People v. Powell (2018) 6 Cal.5th 136, 191 (Powell); People v. Gamache (2010) 48 Cal.4th 347, 405; see also People v. Abundio (2013) 221 Cal.App.4th 1211, 1220-1221 (Abundio); People v. Argeta (2012) 210 Cal.App.4th 1478, 1482 (Argeta); In re Williams, supra, 57 Cal.App.5th at p. 438.)
In In re Williams, the petitioner argued that his LWOP sentence was "grossly disproportionate to his diminished culpability as a 21-year-old offender." (In re Williams, supra, 57 Cal.App.5th at p. 437.) He argued that he was less culpable than a mature adult who commits the same crimes, yet both he and the mature adult would serve the same LWOP sentence. (Id. at pp. 437-438.) The Williams court recognized that aside from death, "LWOP is the most severe penalty available under our Penal Code" and that "[s]ome LWOP inmates may be more culpable than other LWOP inmates." (Id. at p. 438.) However, it concluded that "the Eighth Amendment does not require us to finely calibrate sentences among inmates." (Ibid.; see Graham, supra, 560 U.S. at p. 60; Harmelin v. Michigan, supra, 501 U.S. at pp. 996-1005 (conc. opn. of Kennedy, J.); In re Coley (2012) 55 Cal.4th 524, 542.) Nor do they need to "rank every convicted defendant on a continuum of culpability and ensure each of their sentences are precisely matched to their particular culpability as compared to another defendant's culpability." (In re Williams, at p. 438; see People v. Mincey (1992) 2 Cal.4th 408, 476 ["intercase" proportionality review not required].) Rather, the Eighth Amendment prohibits only sentences that are grossly disproportionate to an individual's crime, which our Supreme Court has cautioned" 'will rarely apply to those serious offenses and offenders currently subject by statute to life-maximum imprisonment.'" (In re Williams, at p. 438; In re Dannenberg (2005) 34 Cal.4th 1061, 1071.) In In re Williams, the petitioner shot and killed two people in the course of a robbery. He admitted to a fellow inmate that he shot one of the victims because the victim recognized him, and then shot the other victim as he turned to run away. The petitioner then took one of the victim's credit cards and used it at least 10 times before his arrest. (In re Williams, at p. 438.)
The Williams court concluded that "[i]n light of the severity of this crime and the magnitude of the harm inflicted, we cannot say that an LWOP sentence is 'grossly disproportionate' to petitioner's culpability." (In re Williams, supra, 57 Cal.App.5th at p. 439.) The United States and California Supreme Courts have recognized there is no crime more depraved or more injurious than intentional first degree murder. (See Contreras, supra, 4 Cal.5th at p. 382 [nonhomicide crimes" 'may be devastating in their harm, ... but "in terms of moral depravity and of the injury to the person and to the public," they cannot be compared to murder in their "severity and irrevocability."' "].) "This is doubly true in the case of a double murder, even when committed by a 21 year old." (In re Williams, at p. 438; see Garnica, supra, 29 Cal.App.4th at p. 1563 [in case involving a multiple-murder special-circumstance finding, "[e]ach of the murders is deemed the more heinous because it is one of multiple killings"].) The court concluded that in light of the severity of this crime and the magnitude of the harm inflicted, it could not say that an LWOP sentence is "grossly disproportionate" to petitioner's culpability. (In re Williams, at p. 438.) Similarly, here, although appellant was 18 years six months old at the time he committed the crimes, the murders were planned ahead of time, where appellant shot and killed his father while sleeping and then grabbed his brother who was trying to run away before shooting him in the head. In terms of moral depravity, these murders are even more heinous because of the multiple killings, killing of his brother who had done nothing wrong, and the plan to blame the murders on the brother as a murder-suicide. Under these circumstances, we cannot say the LWOP sentence is grossly disproportionate to the appellant's culpability.
The Williams court also rejected the petitioner's claim that an LWOP sentence is an unconstitutional cruel and unusual punishment when imposed on any 21-year-old defendant. The Williams court noted that Flores acknowledged research that youths ages 18 to 21 share many of the same cognitive and developmental deficiencies as adolescents under age 18. (In re Williams, supra, 57 Cal.App.5th at p. 439; People v. Flores, supra, 9 Cal.5th at p. 429.) Quoting from the court's earlier opinion in Powell, the court nonetheless held that 18 is"' "the age at which the line for death eligibility ought to rest." '" (In re Williams, at p. 439; Powell, supra, 6 Cal.5th at p. 192.) The court concluded that "[i]f the Eighth Amendment does not prohibit a sentence of death for 21 year olds, then most assuredly, it does not prohibit the lesser LWOP sentence." (In re Williams, at p. 439, fn. omitted.)
In Argeta, the defendant was 18 years five months old when he committed murder. (Argeta, supra, 210 Cal.App.4th at p. 1482.) He was convicted of one count of first degree murder and five counts of attempted murder and was sentenced to an aggregate sentence of 100 years, which the parties conceded was the equivalent of life without the possibility of parole. (Ibid.) The Argeta court rejected the defendant's argument that the rationale applicable to the sentencing of juveniles set forth in Graham, Mendez, Miller and People v. Caballero (2012) 55 Cal.4th 262 should apply to him since he was only 18 years old. (Argeta, at p. 1482.) However, the court relied on Roper, supra, 543 U.S. 551 in reiterating that 18 years old" 'is the point where society draws the line for many purposes between childhood and adulthood'" and "[m]aking an exception for a defendant who committed a crime just five months past his 18th birthday opens the door for the next defendant who is only six months into adulthood. Such arguments would have no logical end." (Argeta, at p. 1482.) The court concluded that at 18 years old, the defendant's sentence was not cruel and/or unusual. (Ibid.)
At almost the same age, appellant was 18 years six months old when he committed the double murders. As in Argeta, we must follow Roper and recognize society has drawn the line between childhood and adulthood at 18 years old and "respect the line our society has drawn and which the United States Supreme Court has relied on for sentencing purposes." (See Artega, supra, 210 Cal.App.4th at p. 1482; People v. Fletcher (1996) 13 Cal.4th 451, 469, fn. 6 [decisions of United States Supreme Court on questions of federal constitutional law are binding on all state courts under U.S. Const. supremacy clause]; People v. Montelongo (2020) 55 Cal.App.5th 1016, 1032 [republished at 274 Cal.Rptr.3d 267, 280] ["Unless and until the United States Supreme Court, the California Supreme Court, the Legislature, or the voters by initiative change the law, we are bound to apply it"].) We conclude the court's sentence of LWOP on an 18 year six month old is not cruel and/or unusual punishment.
Nevertheless, appellant asks the court to reconsider the United States Supreme Court's precedent. Appellant contends that the United States Supreme Court has banned the death penalty for minors (Roper, supra, 543 U.S. at p. 578) and mentally disabled defendants (Atkins v. Virginia (2002) 536 U.S. 304, 321 (Atkins)), LWOP sentences for minors convicted of nonhomicide offenses (Graham, supra, 560 U.S. at p. 58), and the automatic imposition of LWOP for minors convicted of murder (Miller, supra, 567 U.S. at p. 479). With these principles in mind, appellant asks this court to extent Miller to find imposition of LWOP on appellant violates the Eighth Amendment and California constitution's ban on cruel and/or unusual punishment.
As appellant acknowledges, the United States Supreme Court in Roper, supra, 543 U.S. 551 reasoned that "[d]rawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach." (Id. at p. 574.) But "[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood" (ibid.), and that is the line the high court has drawn in its Eighth Amendment jurisprudence. (People v. Gutierrez, supra, 58 Cal.4th at p. 1380.)
Appellant fails to persuade this court to reconsider the Supreme Court's precedent. Appellant references an article from the American Medical Association about Roper and Graham explaining brain development in teens and young adults. He also includes a nonprecedential opinion from Washington state's supreme court which included scientific research supporting the notion that young adults' brains are not fully developed until early adulthood. (See State v. O'Dell (2015) 183 Wash.2d 680, 692, fn. 5.) Similar to the unsuccessful challenge in Flores, defendant has not "presented much in the way of new scientific evidence that might be relevant to the issue." (See Flores, supra, 9 Cal.5th at p. 429.) Consequently, we follow the high court's position that the federal constitution draws the line at age 18, and conclude appellant fails to demonstrate his LWOP sentence violates the Eighth Amendment. (See Flores, at p. 430.)
b. California Constitution
" 'To determine whether a sentence is cruel or unusual under the California Constitution as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts. The court must also consider the personal characteristics of the defendant, including his or her age, prior criminality, and mental capabilities. [Citation.] If the penalty imposed is "grossly disproportionate to the defendant's individual culpability" [citation], so that the punishment"' "shocks the conscience and offends fundamental notions of human dignity" '" [citation], the court must invalidate the sentence as unconstitutional.'" (People v. Gonzales (2012) 54 Cal.4th 1234, 1300; Abundio, supra, 221 Cal.App.4th at p. 1218.)
In Abundio, the defendant was 18 years old at the time he committed murder and was therefore, not a juvenile. (Abundio, supra, 221 Cal.App.4th at pp. 1213, 1219.) The defendant relied on Graham and Miller in asking the court to apply their holdings to his case. (Abundio, at p. 1220.) The court followed its previous decision in Argeta and concluded Abundio's sentence was not cruel and/or unusual. (Abundio, at p. 1221.) Despite his young age, the court found that based on the planning by the defendant, with the unprovoked and vicious nature of the crime, the defendant's sentence was not grossly disproportionate to the nature of the offense or to appellant's culpability. (Ibid.) The Abundio court concluded his sentence was not cruel and/or unusual punishment under either federal or state laws. (Ibid.) Here, appellant was also 18 years old when he planned the double murders in order to make it look like a murder-suicide, then murdered his father while he was sleeping, and grabbed his younger mentally disabled brother and shot him in the head. Based on these circumstances, we cannot conclude appellant's LWOP sentence is grossly disproportionate to the nature of the offense or to his culpability.
Appellant concedes that "[n]o Supreme Court of California case has extended the Miller rule to ... defendants who were older than 18, even by a few months, like [appellant]." Our Supreme Court in Powell, Flores, and other cases have already addressed similar challenges in an attempt to extend the line past 18 years old and rejected them. We decline to deviate from settled precedent. (See Powell, supra, 6 Cal.5th at p. 192; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [decisions of the Supreme Court are binding on the lower courts].) We conclude appellant's LWOP sentences are not cruel and/or unusual punishment under either state or federal constitutions.
2. Mental Illness
Appellant claims that "life without parole is a cruel and unusual sentence when imposed on a mentally ill teenager." He argues that the reasoning in Atkins, supra, 536 U.S. 304, that intellectually disabled Persons should be excluded from death due to diminished culpability, applies "to [appellant] in light of his youth and schizotypal personality disorder." However, the record does not support appellant's claim that he was mentally ill.
The issue regarding appellant's mental capacity arose when defense counsel entered a plea of not guilty by reason of insanity, which appellant later changed to a no contest plea. The subsequent psychological evaluation report showed appellant's MFAST score suggested he "may have been attempting to feign or exaggerate symptoms of mental illness." The evaluator's impressions of appellant were that he had depression that was in partial remission and "provisional-schizotypal personality disorder," meaning not confirmed or that more information is required. The evaluator further opined that appellant was sane at the time of the offense and that he "understood the nature and quality of his acts and he was able to distinguish right from wrong." Consequently, the record does not support appellant's claim that he was mentally ill.
MFAST (the Miller Forensic Assessment of Symptoms Test) is a screening tool for detecting feigned or malingering mental illness. "Psychometric Performance of the Miller Forensic Assessment of Symptoms Test (M-FAST) in Veteran PTSD Assessment" by Erika J. Wolf, Stephanie Ellickson-Larew, Rachel E. Guetta, Shaline Escarfulleri, Karen Ryabchenko, Mark W. Miller, Psychological Injury and Law March 1, 2020.
"Diagnostic Categories: Provisional, Not Otherwise Classified, or Place-holder?" by William T. Carpenter and Darrel Regier, Schizophr Bull, 2016 Nov; 42(6); 13051306; see also Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) "a temporary or working diagnosis that a doctor makes after looking at a person's presenting symptoms, medical history, examination, and preliminary tests."
In Powell, the defendant asserted his IQ was 75, he had "high levels of paranoia and suffered from symptoms of schizophrenia," had trouble reading, and that he performed poorly in school, which made him prone to manipulation and impulse. (Powell, supra, 6 Cal.5th at p. 192.) The court rejected any suggestion that defendant was entitled to relief on a showing less than that required in Atkins. (Powell, at p. 192; In re Hawthorne (2005) 35 Cal.4th 40, 47.) After Atkins, the Legislature enacted section 1376 which states that in order to make out a prima facie case, a petitioner must file a declaration "by a qualified expert stating his or her opinion that the defendant is a person with an intellectual disability" (§ 1376, subd. (b)(1)), defined as "the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before 18 years of age" (id., subd. (a)). (Powell, at p. 192; see In re Hawthorne, at pp. 47-48.)
In order to assert a claim of error, a defendant must demonstrate that he was aggrieved by the alleged error. (In re S.C. (2006) 138 Cal.App.4th 396, 414.) Therefore, since the record does not demonstrate defendant was mentally ill, it is not a proper consideration as to whether his LWOP sentence constitutes cruel and unusual punishment on him as a mentally ill teenager.
Even considering appellant had some level of depression and schizotypal personality disorder, there is no case law stating that LWOP is cruel and/or unusual under these circumstances. The United States Supreme Court in Atkins prohibited death sentences for intellectually disabled offenders, who were defined as individuals with "not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18." (Atkins, supra, 536 U.S. at p. 318.) Here, appellant has not demonstrated he was intellectually disabled as set forth in Atkins.
Additionally, the California Supreme Court has rejected similar claims by mentally ill capital defendants. In People v. Castaneda (2011) 51 Cal.4th 1292, abrogation recognized in People v. Hardy (2018) 5 Cal.5th 56, 100, the defendant claimed that imposition of the death penalty on an offender who suffered from "mental and emotional deficits that developed during his childhood," and which" 'impaired his ability to perceive right from wrong, contributed to impulsive behavior, and substantially diminished his culpability for the crime,'" violated prohibitions against cruel and unusual punishment. (Id. at p. 1344.) Our Supreme Court rejected his claim, finding that he had failed to demonstrate that his mental condition - an antisocial personality disorder - was "analogous to mental retardation or juvenile status for purposes of imposition of the death penalty." (Id. at p. 1345.) Here as well, appellant fails to demonstrate his provisional schizotypal personality disorder is analogous to mental retardation or juvenile status.
In People v. Hajek and Vo (2014) 58 Cal.4th 1144 (Hajek), overruled on a different ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216, our Supreme Court revisited the question of whether sentencing a mentally ill defendant to death constitutes cruel and unusual punishment. The defendant suffered from cyclothymic disorder, bipolar disorder, and borderline personality disorder with antisocial traits, which impaired his judgment and prevented him from forming the requisite mental state for the murder and attempted murder charges. (Hajek, at pp. 1165-1166, 1250.) The court rejected the defendant's claim that the underlying rationales of Atkins applied to severely mentally ill offenders, observing both that the defendant had not cited any controlling federal authority barring imposition of the death penalty on mentally ill offenders and that it had previously found Atkins inapplicable under California law to mentally ill offenders in Castaneda. (Hajek, at p. 1251.)
As the Hajek court explained: "Our analysis rejecting the defendant's claim in Castaneda applies with similar force to Hajek's claim. Most significantly, the circumstance that an individual committed murder while suffering from a serious mental illness that impaired his judgment, rationality, and impulse control does not necessarily mean he is not morally responsible for the killing. There are a number of different conditions recognized as mental illnesses, and the degree and manner of impairment in a particular individual is often the subject of expert dispute. Thus, while it may be that mentally ill offenders who are utterly unable to control their behavior lack the extreme culpability associated with capital punishment, there is likely little consensus on which individuals fall within that category or precisely where the line of impairment should be drawn. Thus, we are not prepared to say that executing a mentally ill murderer would not serve societal goals of retribution and deterrence. We leave it to the Legislature, if it chooses, to determine exactly the type and level of mental impairment that must be shown to warrant a categorical exemption from the death penalty." (Hajek, supra, 58 Cal.4th at p. 1252; see also People v. Boyce (2014) 59 Cal.4th 672, 722 ["there is no objective evidence that a national consensus has developed against executing persons with intellectual impairments short of intellectual disability or insanity"].)
The reasoning and holdings of our Supreme Court in Castaneda and Hajek apply here. In light of controlling authority holding that the execution of the mentally ill is not cruel and unusual punishment, the lesser sentence of LWOP for a mentally ill person cannot be cruel and unusual punishment. (Cf. People v. Marsh (2018) 20 Cal.App.5th 694, 699 ["If mental illness is not sufficient to forestall execution, a fortiori it is not sufficient to exculpate a juvenile from a conviction for homicide"].) Thus, we reject appellant's claim that his provisional mental illness rendered him categorically ineligible for LWOP sentences.
Appellant's argument that he "is bringing a facial challenge to California's sentencing law" and need not make a showing that he is mentally ill fails. Appellant relies on In re Sheena K. (2007) 40 Cal.4th 875, 889 and Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 in raising this argument. However, Sheena K. addressed whether the defendant's claim that her probation condition was unconstitutionally vague and overbroad was forfeited by her failure to raise it in juvenile court. (Sheena K., at p. 889.) Here, the People are not claiming appellant's challenge that his LWOP sentence was cruel and/or unusual based on mental illness is forfeited for failure to object, but that his alleged mental illness is not supported by the record. And in Tobe, the court explained a defendant"' "cannot prevail [on a facial claim] by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute." '" (Tobe, at p. 1084.)"' "Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions." '" (Ibid.) Based on the high court's precedent, appellant fails to demonstrate the California's automatic LWOP for persons 18 years old or older with provisional mental disorder who are convicted of murder under special circumstances presents a "total and fatal conflict with applicable constitutional prohibitions."
IV. Equal Protection Claim
Appellant claims that his exclusion to the benefits of youthful offender parole under section 3051 violates the equal protection clause of both the United States and California constitutions. The People contend there is a rational basis for the different treatment. We agree and reject appellant's equal protection claim.
A. Standard of Review and Applicable Law
An equal protection claim presents a pure question of law based on undisputed facts, which is reviewed de novo. (People v. Laird (2018) 27 Cal.App.5th 458, 469.) Therefore, we independently review appellant's challenge to section 3051. (People v. Jackson (2021) 61 Cal.App.5th 189, 195.)
The United States Constitution's Fourteenth Amendment and California Constitution, article I, section 7 guarantee to all persons the right of equal protection of the laws. (People v. Jackson, supra, 61 Cal.App.5th at p. 195.) That right "is violated when 'the government ... treat[s] a [similarly situated] group of people unequally without some justification.' [Citations.] 'The California equal protection clause offers substantially similar protection to the federal equal protection clause.'" (Id. at p. 195.)
A state violates equal protection when it adopts a classification that affects two or more similarly situated groups in an unequal manner. (People v. Wilkinson (2004) 33 Cal.4th 821, 836; Edwards, supra, 34 Cal.App.5th at p. 195.) Under an equal protection challenge to a law, the court first determines whether the two groups who are treated differently under the law are similarly situated. (In re Eric J. (1979) 25 Cal.3d 522, 530; Edwards, at p. 195.) If the two groups are similarly situated, the court must determine whether the reasons for disparate treatment are legally justified. (People v. McKee (2010) 47 Cal.4th 1172, 1207; Edwards, at p. 195.)
Under this highly deferential standard, "equal protection of the law is denied only where there is no 'rational relationship between the disparity of treatment and some legitimate governmental purpose.'" (People v. Turnage (2012) 55 Cal.4th 62, 74.) "The rational basis test sets a very high bar." (People v. Sands (2021) 70 Cal.App.5th 193, 204.) "A classification in a statute is presumed rational until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable." (People v. Chatman (2018) 4 Cal.5th 277, 289; accord, Sands, at p. 204.) For a successful rational basis challenge, a party must negate"' "every conceivable basis"' that might support the disputed statutory disparity." (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) "It is both the prerogative and the duty of the Legislature to define degrees of culpability and punishment, and to distinguish between crimes in this regard. [Citation.] Courts routinely decline to intrude upon the 'broad discretion' such policy judgments entail. [Citation.] Equal protection analysis does not entitle the judiciary to second-guess the wisdom, fairness, or logic of the law." (Turnage, at p. 74.) Thus, an appellate court "must accept any plausible rational basis without questioning its wisdom, logic, persuasiveness, or fairness, and regardless of whether the Legislature ever articulated it." (Sands, at p. 204, citing Chatman, at p. 289.)
"[S]ection 3051 provides that an offender who committed a 'controlling offense' as a youth is entitled to a 'youth offender parole hearing' after a fixed period of years set by statute. The 'controlling offense' is 'the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.' [Citation.] [¶] As originally enacted, section 3051 applied only to non-LWOP offenses committed before the offender was 18 years old. (Stats. 2013, ch. 312, § 4.) An amendment effective January 1, 2016, raised the age of eligibility to 23 years; and an amendment effective January 1, 2018, raised the age of eligibility to 25 years and included LWOP offenses committed before age 18. [Citations]." (In re Jenson (2018) 24 Cal.App.5th 266, 277.)
"Thus, section 3051 now provides that an offender who committed a 'controlling offense' under the age of 26 is entitled to a 'youth offender parole hearing' during his or her 15th year of incarceration if he received a determinate sentence; during his or her 20th year of incarceration if he or she received a life term of less than 25 years to life; and during his or her 25th year of incarceration if he or she received a term of 25 years to life. (§ 3051, subd. (b)(1)-(3).) An offender convicted of a controlling offense committed before the age of 18 for which he or she was sentenced to LWOP is entitled to a youth offender parole hearing during his or her 25th year of incarceration. (§ 3051, subd. (b)(4).)" (In re Jenson, supra, 24 Cal.App.5th at p. 277.) However, as discussed above, the statute provides no relief for defendants "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." (§ 3051, subd. (h).)
B. Analysis
Appellant points out that because he was 18 years six months old at the time he committed the murders, he will not be eligible for youthful offender parole consideration under section 3051, which allows parole consideration for defendants sentenced to LWOP who had not yet turned 18 years at the time of their offense. Appellant argues there is no rational basis for distinguishing between a murderer who is 17 years 364 days old and a murderer who is 18 years 180 days old. He also argues there is no rational basis distinguishing between a young offender who is sentenced to de facto LWOP and a young offender who is given "true" LWOP. The People argue appellant's claims fail because as a young adult LWOP offender, he is not similarly situated to a juvenile LWOP offender or de facto LWOP offender. Moreover, the People offer rational bases to distinguish the groups.
The first step in the equal protection analysis is to determine whether two groups are similarly situated. (People v. Cervantes (2020) 44 Cal.App.5th 884, 888.) The question" 'is not whether persons are similarly situated for all purposes, but "whether they are similarly situated for purposes of the law challenged." '" (People v. Brown (2012) 54 Cal.4th 314, 328; People v. Acosta (2021) 60 Cal.App.5th 769, 778 (Acosta); see also Edwards, supra, 34 Cal.App.5th at p. 198.) Appellant contends that as an 18 year old who committed special circumstance murder, he is similarly situated to a 17 year old who commits special circumstance murder. Appellant further contends that young adult offenders sentenced to LWOP are similarly situated to young adult offenders sentenced to de facto LWOP.
Section 3051 was originally enacted to remedy the constitutional challenges to de facto LWOP sentences for juvenile offenders. (In re Williams, supra, 57 Cal.App.5th at p. 434.) The Legislature's focus was no longer on juveniles when it first extended section 3051 to certain crimes committed by adults under 24 years old and later to adults under 26. (In re Williams, at p. 434.) As explained in In re Williams, the legislative history suggests the Legislature was motivated 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." (Ibid.)
As the In re Williams court explained, "youth offenders sentenced to LWOP and those sentenced to a parole-eligible life terms are similarly situated with respect to the Legislature's second goal" which is "to account for youthful offenders' potential for growth and rehabilitation." (In re Williams, supra, 57 Cal.App.5th at p. 435; Acosta, supra, 60 Cal.App.5 at p. 778 ["young adult LWOP offenders are similarly situated to young adult offenders sentenced to life and juvenile offenders sentenced to life or LWOP" for purposes of § 3051].)" 'Both a person sentenced to LWOP for a crime committed while under 18 and a person receiving the same sentence for a crime committed when 18 or slightly older committed their offenses before their character was necessarily "well formed" and when their judgment and decisionmaking were likely to improve. Both are similarly situated for the purpose of evaluating whether they have outgrown the youthful impulses that led to the commission of their offenses.'" (Acosta, at p. 779; In re Williams, at p. 435; In re Jones (2019) 42 Cal.App.5th 477, 485-486 (conc. opn. of Pollak, J.).) Thus, under the Legislature's second goal, appellant as an 18 year old convicted of a multiple-murder special-circumstance crime is similarly situated to a person under 18 years old who is also convicted of a special circumstance murder as both groups are "equally likely to demonstrate improved judgment and decisionmaking as they reach emotional and cognitive maturity." (In re Williams, at p. 435.)
" 'Likewise, 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 purpose of determining whether they have outgrown the youthful impulses that led to the commission of their offenses.'" (Acosta, supra, 60 Cal.App.5th at p. 779; In re Jones, supra, 42 Cal.App.5th at p. 486 (conc. opn. of Pollak, J.).) As between" 'youth offenders sentenced to LWOP and those sentenced to a parole-eligible life terms,'" " 'one could say that both groups committed their crimes before their prefrontal cortexes reached their full functional capacity, when their characters were not yet fully formed. Both groups are equally likely to demonstrate improved judgment and decisionmaking as they reach emotional and cognitive maturity.'" (Acosta, at p. 779; In re Williams, supra, 57 Cal.App.5th at p. 435.)
However, with respect to the Legislature's first goal, "which is to calibrate sentences in accordance with youthful offenders' diminished culpability," courts have held that youth offenders sentenced to LWOP are not similarly situated to those sentenced to parole-eligible terms. (See In re Williams, supra, 57 Cal.App.5th at p. 435.) The In re Williams court reasoned that although a 21-year-old special-circumstance murderer may have diminished culpability compared to 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, at p. 435; People v. Descano (2016) 245 Cal.App.4th 175, 182 [" 'Persons convicted of different crimes are not similarly situated for equal protection purposes.' "]; People v. Pecci (1999) 72 Cal.App.4th 1500, 1503 ["[p]ersons convicted of different offenses can be punished differently"].) We agree and conclude that appellant as an 18 year old convicted of multiple-murder special-circumstance murder may have diminished culpability compared to a 28 year old who committed the same crime, but is more culpable, and thus not similarly situated, to an 18 year old that is convicted of a nonspecial circumstance crime. (See In re Williams, at p. 435; In re Jones, at p. 481.)
Moreover, juveniles as a group are not similarly situated to adults who commit otherwise comparable crimes because of their lack of maturity, vulnerability to negative influences, and incomplete character development. (In re Jones, supra, 42 Cal.App.5th at p. 481; Roper, supra, 543 U.S. at pp. 569-570 [same]; Miller, supra, 567 U.S. at p. 471 ["Because juveniles have diminished culpability and greater prospects for reform ... 'they are less deserving of the most severe punishments.' "].) "The United States Supreme Court has repeatedly found that 'children are constitutionally different from adults for purposes of sentencing.'" (In re Jones, at p. 481; Miller, supra, 567 U.S. at p. 471 [mandatory LWOP sentence for juvenile offender violates the 8th Amend.]; see also Graham, supra, 560 U.S. at p. 68 [8th Amend. prohibits imposing LWOP sentence on juvenile offender for nonhomicide offense]; Roper, at p. 569 [8th Amend. prohibits imposing death penalty on juvenile offender under the age of 18].) LWOP offenders who were between the ages of 18 and 25 when they committed their offenses are adult offenders, and therefore, not similarly situated to juvenile offenders who were sentenced to LWOP. (See In re Jones, at p. 481.) Consequently, we conclude that appellant as an 18 year old convicted of multiple-murder special-circumstance murder is not similarly situated to a juvenile 17 years old or younger who is also convicted of a specialcircumstance murder. Where two groups are not similarly situated for purposes of the law being challenged, we need not proceed to the next step of the equal protection analysis. (In re Williams, supra, 57 Cal.App.5th at p. 435; People v. Moreno (2014) 231 Cal.App.4th 934, 941-942.)
Even considering if appellant is similarly situated to a juvenile LWOP offender or a young non-LWOP offender,"' "equal protection of the law is denied only where there is no 'rational relationship between the disparity of treatment and some legitimate governmental purpose.'" '" (In re Williams, supra, 57 Cal.App.5th at p. 436.) The Acosta court concluded age was a rational basis explaining that "[t]he Legislature thus had a constitutionally sufficient basis for distinguishing juvenile LWOP offenders from young adult LWOP offenders." (Acosta, supra, 60 Cal.App.5th at p. 780; In re Murray (2021) 68 Cal.App.5th 456, 463 [a rational basis exists for treating juvenile and adult LWOP offenders in an unequal manner]; see also Roper, supra, 543 U.S. at p. 574 ["a line must be drawn," and "[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood"].) We agree that age is a rational basis for distinguishing between juvenile LWOP offenders and young adult LWOP offenders. (Acosta, at p. 779; see also Roper, at p. 574.)
Courts have also concluded the severity of the crime constitutes a rational basis for distinguishing between a young adult LWOP offender and a young adult offender serving a non-LWOP sentence. (See Acosta, supra, 60 Cal.App.5th at p. 780; In re Williams, supra, 57 Cal.App.5th at p. 436.)" '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.'" (Acosta, at p. 780; In re Williams, at p. 436 [same].)" 'The Legislature rationally judged [special circumstance multiple murder] to be more severe and more deserving of lifetime punishment than nonspecial circumstance first degree murder. This judgment is "both the prerogative and the duty of the Legislature" and "[e]qual protection analysis does not entitle the judiciary to second-guess the wisdom, fairness, or logic" of that judgment.'" (Acosta, at p. 780; In re Williams, at p. 436.) Here, appellant was convicted of special circumstance multiple murder, which carries a mandatory sentence of either LWOP or death, "which are the harshest penalties available under our penal system and are reserved for crimes of the most heinous nature." (See In re Williams, at p. 460, fn. omitted.)" '[W]hen conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature seems to have made' [¶]_ [and] the Legislature is afforded considerable latitude in defining and setting the consequences of criminal offenses." (Johnson v. Department of Justice, supra, 60 Cal.4th at p. 887.) Thus, we conclude there is a rational basis to distinguish between a young offender's LWOP sentence and non-LWOP or de facto LWOP sentence. Accordingly, appellant's equal protection claim fails.
We are not persuaded by appellant's reliance on People v. Hardin (2022) 84 Cal.App.5th 273, which did not view special circumstance murder differently from murder without special circumstance, and thus concluded section 3051 violates the equal protection clause by excluding young adults with LWOP from youth offender parole consideration while considering young adults sentenced to parole-eligible terms. (Hardin, at p. 290.) This case is currently pending before the California Supreme Court, which granted review January 11, 2023, in case No. S277487, and is therefore not binding or precedential authority. (See rule 8.1115(e)(1).)
DISPOSITION
We vacate one of the multiple-murder special circumstance findings and order the abstract of judgment amended to reflect that the remaining multiple murder special circumstance is not attached to a particular count. Additionally, we order the trial court to amend the first corrected minute order and abstract of judgment to reflect that the two LWOP terms for counts 1 and 2 are concurrent terms. We also order the court to amend the abstract of judgment to indicate that the murder conviction for count 2 was by plea. The trial court shall prepare and forward to all appropriate parties a certified copy of the amended abstract of judgment. In all other respects, the judgment is affirmed.
WE CONCUR: SMITH, J., DE SANTOS, J.