People v. Turner CA1/3 ( 2021 )

Filed 3/4/21 P. v. Turner CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A156920
v.
TAJIRI HAMISI TURNER, JR., (San Mateo County
Defendant and Appellant. Super. Ct. No. SC082805A)
This is the second appeal in this case, which comes to us after the trial
court resentenced Tajiri Hamisi Turner, Jr., to a term of 144 years to life in
prison.1 Turner again appeals. He challenges, on equal protection grounds,
Penal Code section 3051, subdivision (h),2 which excludes youth offenders
sentenced pursuant to the “Three Strikes” law (§§ 667, subds. (b)–(i),
1170.12)—such as Turner—from early youth offender parole consideration.
Turner also contends the court failed to award him 84 additional days of
presentence conduct credits, as directed by this court in our prior opinion.
(Turner, supra, A148401, p. 13.) We will modify the judgment to award
This court granted Turner’s motion for judicial notice of our opinion in
1
the first appeal (People v. Turner (June 1, 2018, A148401) [nonpub. opn.]
(Turner)).
2 All undesignated statutory references are to the Penal Code.
1
Turner 84 days of presentence conduct credits. In all other respects, we will
affirm.
BACKGROUND
Given the nature of Turner’s appellate claims, we need only briefly
recount the facts, which were summarized in detail in this court’s prior
opinion. (Turner, supra, A148401, pp. 1–5.)
Turner “was charged with robbing three cell phone stores in San Mateo
County using a similar modus operandi. The first such robbery occurred at a
Radio Shack . . . on February 13, 2014; the second at another Radio Shack . . .
on May 14, 2014; and the third at a Verizon store . . . on September 3, 2014.”
(Turner, supra, A148401, p. 2.) In all three incidents, Turner allegedly
entered the various retail stores; pointed a gun at the workers, each of whom
was working alone; and instructed the workers to fill his duffel bag with cell
phones. The workers complied. (Turner, supra, A148401, pp. 2–4.)
During the first incident, Turner ordered the worker, M.M., to sit down
and warned her against calling the police after she filled his duffel bag with
the cell phones. Turner then told M.M. that he was taking her purse so that
he would know where she lived and that if she called the police he would kill
her and harm her family. M.M. subsequently suffered from anxiety and
required therapy. (Turner, supra, A148401, pp. 2–3.)
During the second incident, Turner locked the worker, D.R., in the cage
where the cell phones were kept and left with the filled duffel bag. D.R. was
able to retrieve his phone from inside the cage and call the police, who
arrived and let him out of the cage. (Turner, supra, A148401, pp. 3–4.)
As for the third incident, the worker, Y.M., was able to escape through
the back door and screamed for help. Y.M. suffered from fear and nightmares
as a result of the incident. (Turner, supra, A148401, pp. 3–4.)
2
In addition to these incidents, “[t]he prosecution also presented
evidence that defendant committed three additional cell phone store
robberies, in San Francisco, San Mateo and Alameda Counties, respectively.”
(Turner, supra, A148401, p. 2.)
The operative amended information charged Turner with three counts
of kidnapping to commit robbery (§ 209, subd. (b)(1)) (counts one, four, and
six); three counts of second degree robbery (§ 212.5, subd. (c)) (counts two,
five, and seven); one count of dissuading a witness by force or threat (§ 136.1,
subds. (b)(1), (c)(1)) (count three); one count of resisting an officer by force or
violence (§ 69) (count eight); and two counts of simple kidnapping (§ 207,
subd. (a)) (counts nine and ten).
The amended information also alleged numerous enhancements,
including two prior robbery convictions qualifying as strikes (§§ 667, subds.
(a)(1) & (d), 1170.12, subds. (b) & (c)(2)) (all counts); two prior prison terms
(§ 667.5, subd. (b)) (all counts); and use of a deadly or dangerous weapon in
the commission of the underlying felonies (§ 12022, subd. (b)(1)) (all counts
but count eight).
Turner moved for an acquittal on the kidnapping to commit robbery
counts charged in counts one, four, and six. The trial court granted the
motion as to counts one and six.
After a trial, the jury found Turner guilty of remaining counts two
through five, seven, nine, and ten. Count eight was dismissed after the jury
was unable to reach a verdict. The jury found true all enhancement
3
allegations. The trial court found true the prior convictions and prior prison
terms allegations. The court sentenced Turner to 144 years to life in prison.3
On appeal, this court reversed the convictions for kidnapping charged
in counts nine and ten and the allegations associated with those charges.
(Turner, supra, A148401, pp. 10–12.) We also remanded the matter with
instructions to the trial court to award Turner 84 days of presentence conduct
credits, in addition to the 563 days of credit for actual time served in custody.
(Turner, supra, A148401, pp. 12–13.)
On remand, the trial court dismissed counts nine and ten and the
accompanying enhancement allegations. Turner renewed his motion for
dismissal of his strike priors, pursuant to section 1385 and People v. Superior
Court (Romero) (1996) 13 Cal. 4th 497 (Romero). The court declined to strike
the prior convictions.
During resentencing, the court imposed the same aggregate sentence of
144 years to life in prison. On count four, kidnapping for robbery (§ 209,
subd. (b)(1)), which was designated as the principal term, the court sentenced
Turner to a term of 36 years to life. This term consisted of 25 years to life,
imposed pursuant to the Three Strikes law (§§ 667, subd. (e), 1170.12, subd.
(c)), plus a one-year consecutive term for using a deadly or dangerous weapon
(§ 12022, subd. (b)(1)) and consecutive terms of five years for each of the two
serious felony priors (§ 667, subd. (a)).
The court imposed the same term of 36 years to life consecutively for
three other counts: counts two (robbery; § 212.5, subd. (c)), three (dissuading
a witness; § 136.1, subds. (b)(1), (c)(1)), and seven (robbery; § 212.5, subd. (c)).
3 Turner filed an augmented clerk’s transcript on appeal which contains
documents related to his original sentence and a confidential probation
officer’s report.
4
The court imposed but stayed the same term for count five, as well as the
accompanying allegations, pursuant to section 654.
The court awarded Turner 563 days plus 1,106 days of credit for actual
time served in custody since he was originally sentenced on March 18, 2016.
This timely appeal followed.4
While this appeal was pending, Turner submitted a letter to the trial
court, a copy of which we received, indicating the court neglected to award
him the 84 additional days of presentence custody credits as directed in our
prior opinion. He requested that we modify the amended abstract of
judgment to include the credits. We have received no opposition from the
People regarding Turner’s request for modification of the amended abstract of
judgment.
DISCUSSION
I. Equal Protection Challenge
Pursuant to section 3051, subdivisions (a) and (b), offenders 25 years of
age and younger at the time of their offense are eligible for a youth offender
parole hearing after 15, 20, or 25 years in prison, depending on the sentence.
(§ 3051, subds. (a)–(b).) Section 3051, subdivision (h) (section 3051(h)),
however, excludes several categories of youth offenders: offenders sentenced
under the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12); sex offenders
sentenced under the “One Strike” law (§ 667.61); offenders sentenced to life
without the possibility of parole (LWOP) for controlling offenses committed
after age 18; and “individual[s] to whom [the] section would otherwise apply,
but who, subsequent to attaining 26 years of age, commit[] an additional
4Aside from his equal protection claim and his challenge to the
omission of presentence conduct credits, Turner does not contend that his
sentence was otherwise unlawful.
5
crime for which malice aforethought is a necessary element of the crime or for
which the individual is sentenced to life in prison.” (§ 3051, subd. (h).)
Turner was 22 years old when he committed some of the instant
offenses and 23 years old when he committed the others. However, because
he was sentenced to a “three strike” term based on his prior serious felony
convictions, Turner is statutorily ineligible for a youth offender parole
hearing. (§ 3051, subd. (h).)
Turner contends his categorical ineligibility, as a Three Strikes
offender, for an early youth offender parole hearing violates his rights under
the federal and state equal protection clauses.
A. Legal Principles Related to Equal Protection
We review Turner’s equal protection claim—which we perceive is a
facial challenge—de novo.5 (People v. Laird (2018) 27 Cal. App. 5th 458, 469.)
“The Fourteenth Amendment to the United States Constitution and article I,
5 We disagree with Turner that he raised his equal protection claim
below. The forfeiture rule applies to claims involving an alleged
constitutional violation (In re Seaton (2004) 34 Cal. 4th 193, 197–198) and
specifically “in the context of sentencing . . . .” (In re Sheena K. (2007) 40
Cal. 4th 875, 881.) Turner maintains he asserted the “gist” of his equal
protection claim, such as commenting, for example, “When someone convicted
of murder can be considered for parole, why not Mr. Tuner [sic]?” However,
as the People note, such remarks were made in the context of Turner’s
renewed motion to dismiss his prior strikes pursuant to Romero, supra, 13
Cal. 4th 497, so that he could be eligible for a youth offender parole hearing
under section 3051, subdivision (b)(3). Such assertion presumes the validity
of the statute and is different from the more fundamental issue he now
raises—whether section 3051 treats youth Three Strikes offenders differently
than other youth offenders, in violation of equal protection. “However, the
forfeiture rule does not extend to facial constitutional challenges presenting
pure questions of law that can be resolved without referring to the particular
sentencing record developed below.” (People v. Patton (2019) 41 Cal. App. 5th
934, 945, citing In re Sheena K., supra, 40 Cal.4th at pp. 885, 889.) We thus
consider Turner’s arguments.
6
section 7 of the California Constitution guarantee all persons the equal
protection of the laws.” (People v. Edwards (2019) 34 Cal. App. 5th 183, 195
(Edwards).) “The concept of equal protection recognizes that persons who are
similarly situated with respect to a law’s legitimate purposes must be treated
equally. [Citation.] Accordingly, ‘ “[t]he first prerequisite to a meritorious
claim under the equal protection clause is a showing that the state has
adopted a classification that affects two or more similarly situated groups in
an unequal manner.” ’ [Citation.] ‘This initial inquiry is not whether persons
are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.” ’ [Citation.]” (People v. Brown
(2012) 54 Cal. 4th 314, 328.)
The parties disagree on the applicable standard for determining
whether differential treatment of similarly situated persons violates equal
protection. Turner contends strict scrutiny applies here, relying on People v.
Olivas (1976) 17 Cal. 3d 236 (Olivas), while the People argue that rational
basis review applies. (See People v. Wilkinson (2004) 33 Cal. 4th 821, 836
(Wilkinson) [“ ‘we apply different levels of scrutiny to different types of
classifications. At a minimum, a statutory classification must be rationally
related to a legitimate governmental purpose. [Citations.] Classifications
based on race or national origin . . . and classifications affecting fundamental
rights . . . are given the most exacting scrutiny’ ”].)
In Olivas, supra, 17 Cal. 3d 236, the Supreme Court addressed the
commitment of a juvenile convicted in adult court to the California Youth
Authority for a period longer than the maximum prison sentence that might
have been imposed for the same offense if committed by a person over the age
of 21 years. (Id. at p. 239.) The court held that “personal liberty” constitutes
7
a fundamental right that triggers application of the strict scrutiny standard.
(Id. at pp. 250–251.)
Our Supreme Court, however, later held that Olivas should not be read
as requiring strict scrutiny review “whenever one challenges upon equal
protection grounds a penal statute or statutes that authorize different
sentences for comparable crimes . . . .” (Wilkinson, supra, 33 Cal.4th at p.
837.) Such a broad reading of Olivas “would ‘intrude[] too heavily on the
police power and the Legislature’s prerogative to set criminal justice policy.’ ”
(Id. at p. 838.) As explained in People v. K.P. (2018) 30 Cal. App. 5th 331, 343,
“where the issue is not whether a deprivation of an individual’s liberty will
occur, but rather the duration of that deprivation, rational basis review is
appropriate because ‘ “ ‘ “the power to define crimes and fix penalties is
vested exclusively in the legislative branch.” ’ ” ’ ” (Citing People v. Farley
(2009) 46 Cal. 4th 1053, 1119.) In light of these principles, we are
unpersuaded that a fundamental interest is at stake here, warranting strict
scrutiny analysis. The issue in this case is not akin to that in Olivas, which
concerned a law that resulted in greater punishment for separate defendants
convicted of the same crime in the same court based solely on the ages of the
defendants. Furthermore, Turner does not argue he is a member of a
protected class, and section 3051 does not classify by race, national origin, or
any other protected classification. Accordingly, we find the rational basis
standard applies.
Under that standard, “ ‘[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.” ’ [Citation.] ‘This standard of
rationality does not depend upon whether lawmakers ever actually
articulated the purpose they sought to achieve. Nor must the underlying
8
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.” ’ [Citation.] To mount a
successful rational basis challenge, a party must ‘ “negat[e] every conceivable
basis” ’ that might support the disputed statutory disparity. [Citations.] If a
plausible basis exists for the disparity, ‘[e]qual protection analysis does not
entitle the judiciary to second-guess the wisdom, fairness, or logic of the law.’
[Citation.]” (Edwards, supra, 34 Cal.App.5th at pp. 195–196.) “Moreover,
equal protection does not require a perfect fit between a statute’s means and
the legitimate state ends those means can serve.” (People v. Chatman (2018)
4 Cal. 5th 277, 290.)
We now turn to the merits.
B. The statutory exclusion of Three Strikes offenders from youth
offender parole hearings does not violate equal protection.
Turner argues that he is similarly situated to youth offenders who were
not sentenced pursuant to the Three Strikes law. He further contends that
under any standard of scrutiny, the differential treatment of Three Strikes
offenders violates equal protection.6 We disagree.
In People v. Wilkes (2020) 46 Cal. App. 5th 1159 (Wilkes), our First
District colleagues in Division Five rejected a challenge similar to Turner’s.7
There, the jury found the defendant guilty of, among other offenses,
attempted murder and found true an allegation it was committed willfully,
6Turner does not present an analysis of his claim under the strict
scrutiny standard.
7In his reply brief, Turner addresses the Wilkes decision, which was
decided after he filed his opening brief.
9
deliberately, and with premeditation. (Id. at pp. 1163–1164.) The defendant
admitted prior conviction allegations, and the court sentenced him pursuant
to the Three Strikes law to a term of 59 years four months to life. (Id. at p.
1164.) On appeal, the defendant, who was 25 years old when he committed
the offenses, raised an equal protection challenge to section 3051(h), arguing
that he was similarly situated to youth offenders who were not sentenced
pursuant to the Three Strikes law and that there was no rational basis for
the different treatment. (Id. at pp. 1164–1165.)
The Wilkes court disagreed. It cited several appellate decisions that
“have rejected equal protection challenges to the differential treatment of
three strikes offenders, concluding that such offenders are not similarly
situated to nonrecidivist offenders and/or that a rational basis exists to treat
them differently.” (Wilkes, supra, 46 Cal.App.5th at pp. 1165–1166.) For
example, in People v. Cooper (1996) 43 Cal. App. 4th 815, 829, the court
explained, “A person who has committed and been convicted of two serious or
violent felonies before the instant offense is a recidivist who has engaged in
significant antisocial behavior and who has not benefited from the
intervention of the criminal justice system. . . . It is reasonable for the
Legislature to distinguish between those felons . . . who come to court with a
history of serious or violent felony convictions and those who do not.” (See
People v. Kilborn (1996) 41 Cal. App. 4th 1325, 1332 [“The system of imposing
greater punishment on all persons who commit a felony-grade crime after
having committed one or more serious or violent felonies in the past, is
rationally related to the legitimate public objective of discouraging
recidivism”]; People v. Spears (1995) 40 Cal. App. 4th 1683, 1687 [“It is clear
the Legislature intended to set appellant and other recidivists with prior
‘strike’ convictions apart from first time offenders and those with less serious
10
criminal histories; it is equally clear it did so with a legitimate objective in
mind”]; People v. McCain (1995) 36 Cal. App. 4th 817, 820 [“The Legislature
has seen fit to increase the severity of punishment for recidivists who have
committed serious or violent felonies and who again commit felony
offenses. . . . [W]e cannot say harsher treatment for such recidivists is
irrational or arbitrary such that it denies them equal protection under the
law”].)
Wilkes, supra, 46 Cal. App. 5th 1159, applied the reasoning of the
foregoing cases. It explained, “The purpose of section 3051 is ‘to give youthful
offenders “a meaningful opportunity to obtain release” after they have served
at least 15, 20, or 25 years in prison (§ 3051, subd. (e)) and made “ ‘a showing
of rehabilitation and maturity’ ” ’ and ‘to account for neuroscience research
that the human brain—especially those portions responsible for judgment
and decisionmaking—continues to develop into a person’s mid-20s.’
[Citation.]” (Id. at p. 1166.)
The Wilkes court then pointed out that a distinguishing characteristic
of Three Strikes offenders is that they are not being sentenced for a first-time
offense: “Assuming a Three Strikes youth offender is similarly situated to
other youth offenders for purposes of section 3051, the Legislature could
rationally determine that the former—‘a recidivist who has engaged in
significant antisocial behavior and who has not benefited from the
intervention of the criminal justice system’ [citation]—presents too great a
risk of recidivism to allow the possibility of early parole.” (Wilkes, supra, 46
Cal.App.5th at p. 1166.)
We agree with the reasoning in Wilkes and apply it to the instant case.
We do not find that Turner, who has committed repeat serious or violent
felonies, is similarly situated to other youth offenders without strike priors
11
for purposes of the law. Even assuming they are similarly situated, the
Legislature’s treatment of youths sentenced under the Three Strikes law so
as to exclude them from the benefit of early parole consideration is rationally
related to the legitimate governmental objective of discouraging recidivism.
(See Wilkes, supra, 46 Cal.App.5th at p. 1166.)
Indeed, in his reply brief, Turner acknowledges that the Wilkes “court
rejected the argument that [he] makes here.” However, he asks us to reach
the opposite conclusion, arguing that “recidivism is not a rational basis for
the distinction in section 3051” and pointing us to Edwards, supra, 34
Cal. App. 5th 183. In Edwards, the court held the statutory exclusion of
youths convicted and sentenced for sex crimes under the One Strike law
(§ 667.61) violated equal protection.8 (Edwards, at p. 199.) The Edwards
court found “no rational relationship between the disparity of treatment [of
One Strike offenders] and a legitimate governmental purpose” (id. at p. 197),
noting that section 3051 included “first degree murderers but exclude[d] One
Strikers” (id. at p. 195).
Edwards is distinguishable. By definition, Three Strikes offenders,
unlike those sentenced for sex offenses under the One Strike law such as the
defendant in Edwards, are not being sentenced for a first-time offense. (See
8 The California Supreme Court has taken up the equal protection issue
raised in Edwards as to youth sentenced under the One Strike law, which
another appellate court addressed in People v. Williams (2020) 47
Cal. App. 5th 475, review granted July 22, 2020, S262229.) In Williams, the
court, applying a rational basis test, rejected a One Strike defendant’s equal
protection challenge based on Edwards. (Williams, at pp. 490, 493.) The
court disagreed with Edwards and held “the threat of recidivism by violent
sexual offenders—as demonstrated by the Legislature’s enactment of several
comprehensive statutory schemes to curb such recidivism among such
offenders—provides a rational basis for the Legislature’s decision to exclude
one strikers from the reach of section 3051.” (Williams, at p. 493.)
12
Wilkes, supra, 46 Cal.App.5th at p. 1166 [“ ‘The “One Strike” law is an
alternative, harsher sentencing scheme that applies to specified felony sex
offenses,’ such that ‘ “a first-time offense can result in one of two heightened
sentences” ’ ”].) Indeed, as observed in Wilkes, the Edwards court “took pains
to ‘note that criminal history plays no role in defining a One Strike crime’ and
that ‘[t]he problem in this case is’ the categorical exclusion of ‘an entire class
of youthful offenders convicted of a crime short of homicide . . . , regardless of
criminal history . . . .’ ” (Wilkes, at pp. 1166–1167, quoting Edwards, supra,
at p. 199.) Accordingly, Edwards is inapplicable.
Turner also relies on the concurring opinion in In re Jones (2019) 42
Cal. App. 5th 477 (Jones). Jones, however, addressed a different statute—
section 1170, subdivision (d). (Jones, supra, 42 Cal.App.5th at p. 480.) The
defendant argued the statute violates equal protection because it treats
youthful offenders who commit murder and are sentenced to LWOP
differently than juveniles who commit murder and are sentenced to LWOP;
the former are not entitled an opportunity to petition for resentencing while
the latter are. (Ibid.) The Jones court rejected that argument, concluding
that “[t]he Legislature could reasonably decide that for those convicted of
LWOP crimes, the line should be drawn at age 18, rather than at some later
date when the brain is fully developed.” (Id. at p. 483.)
The concurring opinion in Jones, supra, 42 Cal. App. 5th 477, then
introduced the separate question of whether section 3051’s disparate
treatment of young adult offenders serving LWOP sentences and those
serving non-LWOP sentences violates equal protection. (Jones, supra, 42
Cal.App.5th at pp. 485–486 (conc. opn. of Pollak, P. J.).) The concurrence
suggested that it may, explaining: “The presumptive fact that the LWOP
sentence was based on a more serious offense provides no rational basis for
13
the distinction because the statute is not designed to determine the degree of
appropriate punishment but to determine whether the individual has
outgrown his or her criminality. There is no reason to conclusively presume
that one such person is more likely to have satisfactorily matured than the
other.” (Id. at p. 486.) The concurrence, however, declined to ultimately
resolve the equal protection question. (Id. at pp. 483–484, 486–487.)
Turner’s reliance on the concurrence in Jones is misplaced. Jones did
not consider whether Three Strikes youth offenders are similarly situated to
other youth offenders without strike priors for purposes of the statute and, if
so, whether exclusion of the former from early parole consideration is
rationally related to a governmental objective. In any event, we are
unpersuaded that its reasoning compels the conclusion Turner seeks here.
As the concurrence noted, “the statute is . . . designed . . . to determine
whether the individual has outgrown his or her criminality.” (Jones, supra,
42 Cal.App.5th at p. 486 (conc. opn. of Pollak, P. J.).) We think that the
Legislature rationally could have concluded that a young adult’s recidivist
behavior made him or her more dangerous and less likely to have “outgrown
his or her criminality” than nonrecidivists. (Ibid.) That this conclusion may
be wrong in some cases does not render the Legislature’s measure irrational.
(See People v. Turnage (2012) 55 Cal. 4th 62, 77–78.)
Similarly unavailing is Turner’s reliance on Graham v. Florida (2010)
560 U.S. 48, Miller v. Alabama (2012) 567 U.S. 460, and People v. Contreras
(2018) 4 Cal. 5th 349. These cases curtailed the imposition of LWOP
sentences for juvenile offenders on Eighth Amendment grounds. (See
Graham, supra, 560 U.S. at p. 74 [forbids a juvenile who commits a
nonhomicide offense from being sentenced to LWOP]; Miller, supra, 567 U.S.
at p. 465 [forbids the automatic imposition of LWOP on juveniles in homicide
14
cases]; see also Contreras, supra, 4 Cal.5th at pp. 356, 379 [held
unconstitutional sentences of 50 years to life and 58 years to life imposed
under the One Strike Law on 16-year-old nonhomicide offenders].) We do not
find these cases controlling because they were analyzed under the Eighth
Amendment’s prohibition against cruel and unusual punishment and not as
to whether such sentences violated the equal protection clause. In addition,
they only addressed the constitutional implications of juvenile offenders
sentenced to LWOP. (See Contreras, supra, 4 Cal.5th at p. 360 [“The [U.S.]
Supreme Court has interpreted the Eighth Amendment to impose unique
constraints on the sentencing of juveniles who commit serious crimes”]; see
also ibid. [“This case law reflects the principle that ‘children are
constitutionally different from adults for purposes of sentencing’ ”].) Here, in
contrast, Turner was a 22- or 23-year-old adult when he committed repeat
serious and violent felonies. Accordingly, Graham and its progeny are
inapposite.
Accordingly, we find Turner has not demonstrated that his disparate
treatment under section 3051(h) runs afoul of the equal protection clause.
We acknowledge Turner’s general point, however. Section 3051
appears to reflect a legislative judgment that offenders who are not yet
neurologically developed at the time of their offense should have an
opportunity to demonstrate rehabilitation after an extended period of
incarceration. Notwithstanding this intent, the Legislature could rationally
determine that recidivist offenders, including those who commit offenses
during their youth, “present[] too great a risk of recidivism to allow the
possibility of early parole.” (Wilkes, supra, 46 Cal.App.5th at p. 1166.) We
conclude there is a rational basis for the Legislature’s choice and that is
enough to satisfy equal protection.
15
II. Presentence Conduct Credits
In the first appeal in this matter, we determined that the trial court
should have awarded Turner 84 days of presentence conduct credits, in
addition to 563 days of credit for actual time he served in custody (§§ 2933.1,
4019). (Turner, supra, A148401, pp. 12–13.) We remanded the case and
directed the court to award Turner 84 additional days of presentence conduct
credits. (Turner, supra, A148401, p. 13.)
On remand, the trial court awarded Turner 563 days plus 1,106 days of
credit for actual time served in custody between the time he was first
sentenced on March 18, 2016, and resentenced on March 29, 2019. While this
appeal was pending, Turner submitted a letter to the trial court, which he
forwarded to this court, indicating that the amended abstract of judgment
does not include the 84 additional days of presentence custody credits.
Accordingly, Turner requests that it be corrected to include those credits. We
have received no opposition from the People regarding Turner’s request to
correct the amended abstract of judgment. We grant Turner’s request and
modify the judgment accordingly.
DISPOSITION
The judgment is modified to award 84 additional days of presentence
conduct credit. As so modified, the judgment is affirmed. The trial court is
directed to prepare and forward to the Department of Corrections and
Rehabilitation an amended abstract of judgment that has been modified
accordingly.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Wiseman, J.*
A156920/People v. Tajiri Hamisi Turner, Jr.
*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
17