Opinion
F085512
01-03-2024
THE PEOPLE, Plaintiff and Respondent, v. ALFRED KIPP MCDONNELL, Defendant and Appellant.
Kendall Dawson Wasley, 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, Eric L. Christoffersen and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. CR-22-011518. Shawn D. Bessey, Judge.
Kendall Dawson Wasley, 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, Eric L. Christoffersen and Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 1990, appellant Alfred Kipp McDonnell was convicted by jury of first degree murder (Pen. Code, § 187). The jury further found true a special circumstance alleging that the murder was committed during the commission a robbery (§ 190.2, subd. (a)(17)(i)). McDonnell was 21 years old at the time of his commitment offense. He was sentenced to life without the possibility of parole (LWOP).
All further undefined statutory citations are to the Penal Code unless otherwise indicated.
In 2022, McDonnell filed a motion pursuant to section 1203.01 seeking to develop a record of youth-related mitigating factors for an eventual youth offender parole hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin) and In re Cook (2019) 7 Cal.5th 439 (Cook). In his motion, McDonnell argued, in relevant part, that section 3051, subdivision (h) of the youth offender parole hearing statute violated the equal protection clause of the Fourteenth Amendment by denying the right to a youth offender parole hearing to inmates sentenced to LWOP for crimes committed when they were 18 to 25 years old, while permitting youth offender parole hearings for similarly situated young adults who were sentenced to a parole eligible term. McDonnell further asserted that this prohibition violated the prohibitions against cruel and/or unusual punishment under the federal and state Constitutions.
The trial court put the matter on calendar for the appointment of counsel to represent McDonnell. However, the matter was dropped from the court's calendar at the request of the public defender, who conceded that McDonnell was statutorily ineligible for a youth offender parole hearing and was therefore ineligible for a Franklin/Cook hearing. A timely notice of appeal followed.
On appeal, McDonnell contends that remand for further proceedings is necessary so that the trial court can rule on his Equal Protection claim. The Attorney General agrees, as do we. We will therefore remand this matter back to the lower court for further proceedings, including, the appointment of counsel and a ruling on McDonnell's motion.
STATEMENT OF FACTS
No statement of facts is contained in the record on appeal. However, the parties agree that the facts underlying McDonnell's commitment offense are not relevant to the issues presented in this appeal.
ANALYSIS
Remand for Further Proceedings is Appropriate
McDonnell contends that the trial court erred by failing to rule on his motion for a Franklin hearing, asserting that he is entitled to such a hearing under the federal and state Constitutions. We agree that remand is appropriate for the appointment of counsel to represent McDonnell and for a ruling on his motion.
Young adult offenders serving a de facto term of LWOP for first degree murder are entitled to youth offender parole consideration under section 3051, but youth offenders sentenced to an actual term of LWOP are not. A growing minority of justices have invited our Legislature to consider the constitutionality of excluding young adult offenders sentenced to LWOP from section 3051's youth offender parole provisions. (See In re Jones (2019) 42 Cal.App.5th 477, 483 (conc. opn. of Pollak, J., joined by Streeter, J.); see also, People v. Montelongo (2020) 55 Cal.App.5th 1016, 1035 (conc. opn. of Segal, J.); In re Murray (2021) 68 Cal.App.5th 456, 464.)
However, as of the date of the filing of this opinion, only one appellate court has garnered a majority opinion finding that section 3051's exclusion of young adult offenders serving a term of LWOP violates the equal protection clause. (See People v. Hardin (2022) 84 Cal.App.5th 273, review granted Jan. 11, 2023, S277487.) Every other appellate court to have considered the issue has upheld the constitutionality of section 3051's exclusion of young adult offenders sentenced to LWOP from youth offender parole consideration. (See People v. Sands (2021) 70 Cal.App.5th 193, 204-205; People v. Morales (2021) 67 Cal.App.5th 326, 347-349; People v. Jackson (2021) 61 Cal.App.5th 199-200; People v. Acosta (2021) 60 Cal.App.5th 769, 778 [finding that although the defendant, who was 21 years old at the time of the offenses and was sentenced to LWOP was "similarly situated" to offenders who were granted parole under section 3051, his age and the severity of his crime supplied a rational basis for his exclusion from section 3051]; In re Williams (2020) 57 Cal.App.5th 427, 435 ["While a 21-year-old special circumstance murderer may, in fact, have diminished culpability compared with a 28 year old who commits the same crime, he is nonetheless more culpable and has committed a more serious crime than a 21 year old convicted of a nonspecial circumstance murder"]; People v. Ngo (2023) 89 Cal.App.5th 116, 126 [upholding the use of a special circumstance finding as "a bright-line test of culpability"], review granted May 17, 2023, S279458.)
The constitutionality of section 3051's exclusion of youthful offenders sentenced to LWOP is currently pending before our Supreme Court. (See People v. Hardin, supra, 84 Cal.App.5th 273, review granted Jan. 11, 2023, S277487.) In the interim, because the trial court has not ruled on McDonnell's motion, McDonnell's constitutional claims are not yet ripe for consideration. Any opinion as to the merits of McDonnell's claims would therefore be purely advisory, and therefore, improper to address at this juncture. (People v. Slayton (2001) 26 Cal.4th 1076, 1084 ["As a general rule, we do not issue advisory opinions."].)
According to the Supreme Court's docket, oral argument in Hardin occurred on December 5, 2023. (See https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2431876&doc_no=S277487&request_token=NiIwLSEmLkg%2BWyBVSCNNUEhJUEg0UDxTJCMuVzJSQCAgCg%3D%3D [last accessed: Jan. 3, 2024].)
DISPOSITION
The matter is remanded back to the trial court for the appointment of counsel and full consideration of McDonnell's motion for a Franklin hearing.
[*] Before Hill, P. J., Smith, J. and Meehan, J.