People v. Vo CA3 ( 2021 )

Filed 12/15/21 P. v. Vo CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093676
Plaintiff and Respondent, (Super. Ct. No. 98F03454)
v.
RO VAN VO,
Defendant and Appellant.
Petitioner Ro Van Vo filed a petition under Penal Code1 section 1203.01 to make
a record of relevant evidence to be considered at an inevitable youth offender parole
hearing under Cook and Franklin. (In re Cook (2019) 7 Cal.5th 439, People v. Franklin
(2016) 63 Cal.4th 261.) The trial court denied petitioner’s petition finding that petitioner
did not qualify for a youth offender parole hearing under section 3051. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Several weeks after petitioner turned 18, he participated in a drive-by shooting
with members of the Insane Viet Boyz criminal street gang. As a result, petitioner was
1 Further section references are to the Penal Code unless indicated otherwise.
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convicted of one count of special-circumstance murder and one count of assault with a
firearm. The jury further found associated gun and gang enhancements true as to both
offenses. The trial court sentenced petitioner to life without the possibility of parole
(LWOP) for the murder, plus 25 year to life for the associated enhancements. The court
further sentenced petitioner to 11 years for the assault and the associated enhancements.
In 2020, petitioner filed a petition under section 1203.01 requesting the trial court
hold a hearing pursuant to Franklin and Cook, so that he could “make an accurate record
of the Juvenile/Youth Offender’s Characteristics, and circumstances at the time of the
offense so that the California Board of Parole Hearings, Years Later, May properly
discharge it’s obligation to give great weight to the Youth related factors under Penal
Code, Section[s] 4801 (c), in determining whether the Petitioner is fit to rejoin society.”
The trial court denied the petition finding petitioner was ineligible for a youth
offender parole hearing under section 3051, subdivisions (b)(4) and (h).
Petitioner appeals.
DISCUSSION
I
Section 3051 Does Not Violate Equal Protection
Petitioner agrees he is ineligible for a youth offender parole hearing under
section 3051. He argues instead that section 3051, which allows LWOP offenders who
committed their crimes as juveniles to be considered for youth offender parole hearings
but not LWOP offenders who committed their crimes when they were between 18 to 25
years old (referred to as young-adult offenders or young-adult LWOP offenders), violates
the equal protection clause of the Fourteenth Amendment to the U.S. Constitution
because the section excludes young-adult offenders like him from such hearings. We
disagree.
“The Fourteenth Amendment to the United States Constitution and article I,
section 7 of the California Constitution guarantee all persons the equal protection of the
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laws.” (People v. Edwards (2019) 34 Cal.App.5th 183, 195.) “The right to equal
protection of the law is violated when ‘the government . . . treat[s] a [similarly situated]
group of people unequally without some justification.’ ” (People v. Love (2020) 55
Cal.App.5th 273, 287.)
“To succeed on an equal protection claim, [petitioner] must first show that the
state has adopted a classification that affects two or more similarly situated groups in an
unequal manner.” (People v. Edwards, supra, 34 Cal.App.5th at p. 195.) “But equal
protection analysis does not require that two groups of defendants be the same, or even
that they be ‘ “ ‘similarly situated for all purposes.’ ” ’ [Citation.] It is enough that
‘ “ ‘ “they are similarly situated for purposes of the law challenged.” ’ ” ’ ” (Id. at
p. 198.)
If a class of criminal defendants is similarly situated for purposes of the law
challenged to another class of defendants who are treated differently, “courts look to
determine whether there is a rational basis for the difference.” (People v. Edwards,
supra, 34 Cal.App.5th at p. 195.) “[E]qual protection of the law is denied only where
there is no ‘rational relationship between the disparity of treatment and some legitimate
governmental purpose.’ ” (People v. Turnage (2012) 55 Cal.4th 62, 74.) “This standard
of rationality does not depend upon whether lawmakers ever actually articulated the
purpose they sought to achieve. Nor must the underlying rationale be empirically
substantiated. [Citation.] While the realities of the subject matter cannot be completely
ignored [citation], a court may engage in ‘ “rational speculation” ’ as to the justifications
for the legislative choice [citation]. It is immaterial for rational basis review ‘whether or
not’ any such speculation has ‘a foundation in the record.’ ” (Id. at pp. 74-75.)
To successfully challenge a law on equal protection grounds, petitioner must
negate “ ‘ “every conceivable basis” ’ ” on which “the disputed statutory disparity” might
be supported. (People v. Edwards, supra, 34 Cal.App.5th at p. 195.) “If a plausible basis
exists for the disparity, ‘[e]qual protection analysis does not entitle the judiciary to
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second-guess the wisdom, fairness, or logic of the law.’ ” (Id. at pp. 195-196.) We
independently review petitioner’s equal protection challenge to section 3051. (People v.
Jackson (2021) 61 Cal.App.5th 189, 195.)
Section 3051 “ ‘establish[es] a parole eligibility mechanism that provides a person
serving a sentence for crimes that he or she [or they] committed as a juvenile the
opportunity to obtain release when he or she [or they] has shown that he or she [or they]
has been rehabilitated and gained maturity.’ ” (In re Trejo (2017) 10 Cal.App.5th 972,
980; § 3051 et seq.) The statute was a response to decisions from the United States and
California Supreme Courts concerning Eighth Amendment limitations on juvenile
sentencing that rested on developments in science and social science showing
fundamental differences between juvenile and adult minds and parts of the brain involved
in behavior control. (People v. Acosta (2021) 60 Cal.App.5th 769, 775-776.) The
Legislature sought to address “lengthy life sentences [that] did not adequately account
for, first, the diminished culpability of youth, and second, youthful offenders’ greater
potential for rehabilitation and maturation.” (In re Williams (2020) 57 Cal.App.5th 427,
434.)
As originally enacted in 2013, section 3051 applied where the controlling offense
was committed before the offender was 18 years old (In re Trejo, supra, 10 Cal.App.5th
at p. 981 & fn. 6) but excluded juvenile LWOP offenders (People v. Acosta, supra, 60
Cal.App.5th at p. 776). Additional amendments based on scientific evidence showing
that areas of the brain that affect judgment and decision-making do not develop until
early to mid 20’s followed. (People v. Morales (2021) 67 Cal.App.5th 326, 346.) In
2016, the Legislature amended the statute to extend the availability of youth offender
parole hearings to offenders who were under 23 years old when they committed
controlling offenses. (Stats. 2015, ch. 471 (Sen. Bill No. 261), § 1, eff. Jan. 1, 2016; see
Trejo, at p. 981 & fn. 6.) In 2018, the hearings were extended to offenders who were 25
years old or younger when they committed their controlling offenses. (Stats. 2017,
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ch. 684 (Sen. Bill No. 394), § 3051, eff. Jan. 1, 2018.) The Legislature also amended
section 3051 to allow parole hearings for juveniles sentenced to LWOP. (Stats. 2017, ch.
684; Morales, at p. 346.)
In the statute’s current form, an offender who committed a controlling offense
under the age of 25 is entitled to a youth offender parole hearing during his or her or their
15th year of incarceration if he or she or they received a determinate sentence; during his
or her or their 20th year of incarceration if he or she or they received a life term of less
than 25 years to life; and during his or her or their 25th year of incarceration if he or she
or they 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 or
they was sentenced to LWOP is entitled to a youth offender parole hearing during his or
her or their 25th year of incarceration. (§ 3051, subd. (b)(4).) An offender convicted of a
controlling offense committed after the age of 18 for which he or she or they was
sentenced to LWOP, is not entitled to a youth offender parole hearing at any point.
(§ 3051, subd. (h).)
Several courts have recently grappled with equal protection challenges similar to
those raised by petitioner. For example, Division Three of the Fourth District Court of
Appeal issued Acosta, which rejected an equal protection challenge to section 3051.
(People v. Acosta, supra, 60 Cal.App.5th at p. 772.) There, the defendant argued that
section 3051 violated equal protection by granting future parole consideration to
juveniles sentenced to LWOP but not to young adults sentenced to LWOP. (Id. at
pp. 777-778.) After concluding that young-adult LWOP offenders were similarly
situated to juvenile LWOP offenders (id. at p. 778), the Acosta court concluded the
Legislature had a rational basis for excluding them from parole eligibility while
extending the benefit to juvenile LWOP offenders (id. at p. 779). The Acosta court
observed that extending section 3051 to include juvenile LWOP offenders was the result
of the United States Supreme Court’s decision in Montgomery v. Louisiana (2016) 577
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U.S. 190 [193 L.Ed.2d 599], which held that the prohibition on mandatory LWOP
sentence for juveniles established in Miller v. Alabama (2012) 567 U.S. 460 [183 L.Ed.2d
407], was retroactive. (Acosta, at pp. 777-779.) Montgomery provided that “[a] State
may remedy a Miller violation by permitting juvenile homicide offenders to be
considered for parole, rather than by resentencing them.” (Montgomery, at p. 212 [193
L.Ed.2d at p. 622].) As the Acosta court observed, section 3051 allows for compliance
with Montgomery “without resorting to costly resentencing hearings.” (Acosta, at
p. 779.) Because Montgomery did not compel the same treatment of young adult
offenders, age provided “a constitutionally sufficient basis for distinguishing juvenile
LWOP offenders from young adult LWOP offenders.” (Acosta, at p. 780.)
Other courts have similarly rejected equal protection challenges to section 3051
and have identified rational grounds for the different treatment of young-adult LWOP
offenders. In Williams, the court explained that the Legislature reasonably could have
decided that young-adult offenders who commit the crimes which have been deemed the
most morally depraved to justify lifetime incarceration are still sufficiently culpable and
sufficiently dangerous. (In re Williams, supra, 57 Cal.App.5th at pp. 435-436.) In
Jackson, the court noted that the United States and California Supreme Courts “have
repeatedly found the bright line drawn between juveniles and nonjuveniles to be a
rational one when it comes to criminal sentencing.” (People v. Jackson, supra, 61
Cal.App.5th at pp. 196-197.) The Jackson court further noted that “public safety, and the
desire to punish those persons who commit first degree special circumstance murder
more harshly than persons who commit first degree murder without aggravating
circumstances, provide a plausible basis for our Legislature to treat these two
classifications differently for purposes of section 3051.” (Id. at 200.) In the most recent
case, Morales, Division Four of the First District Court of Appeal echoed similar grounds
in its rational review analysis in denying the defendant’s equal protection challenge.
(People v. Morales, supra, 67 Cal.App.5th at pp. 348-349.)
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Here, even assuming that young adult LWOP offenders and juvenile LWOP
offenders are similarly situated for the purpose of section 3051, petitioner’s equal
protection challenge fails. We cannot say that the Legislature’s decision to exclude
young adult LWOP offenders from the benefits of section 3051 was made without any
rational basis. As discussed above, the courts in Acosta, Jackson, and Morales identified
several plausible reasons why the Legislature preserved the line between juveniles and
nonjuveniles with respect to eligibility for youth offender parole hearings. These reasons
apply equally to our analysis, and we likewise conclude petitioner’s equal protection
claim is without merit.
For similar reasons, we do not find persuasive petitioner’s citation to Edwards,
which considered the different question of whether a defendant who was convicted of a
one-strike sexual offense under section 667.61 could constitutionally be excluded from
youth offender parole hearings. (People v. Edwards, supra, 34 Cal.App.5th at pp. 198-
199.) The Edwards court concluded the exclusion violated equal protection principles
because it exempted “an entire class of youthful offenders convicted of a crime short of
homicide” from youth offender parole hearings, while making those hearings available to
defendants convicted of first degree murder. (Id. at p. 199.) Here, the converse is true:
petitioner was convicted of first degree special-circumstance murder, which our
Legislature has deemed more serious than first degree murder.2 Thus, even considering
the specific purpose of section 3051, petitioner’s case is distinguishable from the
defendant in Edwards.
2 We note Division One of the Fourth District Court of Appeal disagreed with
Edwards in People v. Williams (2020) 47 Cal.App.5th 475, 492, review granted July 22,
2020, S262229. Our Supreme Court has granted review of Williams to decide whether
section 3051’s exclusion of one-strike sex offenders from youth offender parole hearings
violates equal protection principles.
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In reaching this conclusion, we acknowledge that many courts which have rejected
equal protection challenges to section 3051 have expressed reservation in doing so. As
the majority in Morales explained, “[T]he United States and California Supreme Courts
have recognized that certain traits lessen a juvenile offender’s culpability, and that such
traits and a juvenile’s capacity for reform are not ‘crime-specific.’ [Citations.] It is, after
all, possible that a [young-adult] offender sentenced to LWOP would mature and prove
suitable for release at some point during his or her incarceration, just as would a juvenile
sentenced to LWOP.” (People v. Morales, supra, 67 Cal.App.5th at p. 349; see also
People v. Acosta, supra, 60 Cal.App.5th at p. 780.) Further, in our Supreme Court’s
denial of a petition to review in Jackson, Justice Liu added a concurring statement
asserting his view that section 3051’s parole eligibility scheme is in tension with equal
protection of the laws. (People v. Jackson, supra, 61 Cal.App.5th at p. 202 (conc.
statement of Liu, J.).) Indeed, several of our colleagues have encouraged the Legislature
to consider repealing the exclusion for young-adult LWOP offenders in section 3501,
subdivision (h). (See People v. Acosta, supra, 60 Cal.App.5th at p. 781; People v.
Jackson, supra, 61 Cal.App.5th at pp. 201-202 (conc. opn. of Dato, J.); People v.
Morales, supra, 67 Cal.App.5th at p. 349.)
However, as the Acosta court appropriately noted, “ ‘[e]qual protection analysis
does not entitle [us] to second-guess the wisdom, fairness, or logic of the law.’ ” (People
v. Acosta, supra, 60 Cal.App.5th at p. 781.) Even though we reject petitioner’s equal
protection challenge based on the several rational grounds for treating young-adult
LWOP offenders differently from juvenile LWOP offenders, for the reasons discussed
above, we join other courts in inviting the Legislature to reconsider section 3051’s
exclusion of young-adult LWOP offenders from eligibility to a youth offender parole
hearing after 25 years of incarceration. But the fact remains that section 3051 does not
violate equal protection and petitioner is not entitled to a youth offender parole hearing,
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and thus he is also not entitled to a proceeding pursuant to Franklin and Cook to preserve
evidence for an inevitable youth offender parole hearing.
II
Whether Petitioner’s Sentence Constitutes Cruel
And Unusual Punishment Is Forfeited And Not Cognizable On Appeal
Petitioner contends his mandatory LWOP sentence constitutes cruel and unusual
punishment. The People argue petitioner forfeited this claim by not raising it in the trial
court. Petitioner counters that he could not have raised this claim at the time of his
sentencing because the United States Supreme Court cases he relies upon on appeal were
not yet decided. The problem with petitioner’s argument is that he is not appealing from
the imposition of his sentence, but from the recent denial of his petition under
section 1203.01. At the time of that petition, the United States Supreme Court cases he
relies upon in his briefing had been decided. Indeed, those cases provided the very basis
for our Supreme Court’s holding that section 1203.01 could be used for the purpose of
creating a record for use at an eventual youth offender parole hearing. (In re Cook,
supra, 7 Cal.5th at pp. 447-452.) Petitioner failed to advance his cruel and unusual
punishment argument in his section 1203.01 petition, thus forfeiting it on appeal of that
petition. In any event, a cruel and unusual argument would not have been entertained by
the trial court when ruling on petitioner’s section 1203.01 petition. “In cases with final
judgments, section 1203.01 gives the trial court authority to conduct an evidence
preservation proceeding as envisioned in Franklin.” (In re Cook, at p. 452.) It does not
permit petitioner to advance legal arguments meant to undermine the validity of his
sentence or disturb the finality of his state conviction. (Id. at p. 451.) Thus, in addition
to being forfeited, petitioner’s cruel and unusual punishment argument is not cognizable
on appeal of his section 1203.01 petition. To the extent petitioner would like to challenge
the constitutionality of his imposed sentence based on cases decided after his judgment
was final, he may file a petition for writ of habeas corpus.
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DISPOSITION
The judgment is affirmed.
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Hull, J.
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