People v. Livingston CA3 ( 2024 )

Filed 5/13/24 P. v. Livingston 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C099413
Plaintiff and Respondent, (Super. Ct. No. 95F05570)
v.
DON CORNELIOUS LIVINGSTON,
Defendant and Appellant.
Defendant Don Cornelious Livingston appeals an order denying his motion for a
Franklin1 hearing under Penal Code section 1203.01.2 Livingston is serving a sentence
of life without the possibility of parole (LWOP) for offenses he committed when he was
18 years four months old. Livingston’s opening brief argued the guarantees of equal
1 People v. Franklin (2016) 63 Cal.4th 271 (Franklin).
2 Undesignated statutory references are to the Penal Code.
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protection under the United States and California Constitutions were violated by the
youth offender parole statute’s exclusion of LWOP offenders whose offenses were
committed between the ages of 18 and 25. (See § 3051, subds. (b), (h).) Livingston’s
reply brief, however, concedes the California Supreme Court’s recent decision in People
v. Hardin (2024) 15 Cal.5th 834 (Hardin) forecloses his claim for relief. He nonetheless
maintains for purposes of an appeal to the Supreme Court of the United States that
section 3051’s exclusion of LWOP young adult offenders violates equal protection.
Following Hardin, we affirm.
BACKGROUND
In 1996, Livingston was convicted by jury of first degree murder (§ 187, subd. (a))
with the special circumstances that the murder was committed in the commission of a
rape or attempted rape (§ 190.2, subd. (a)(17)). The trial court imposed an LWOP
sentence, and a panel of this court upheld the judgment. (People v. Livingston (Feb. 25,
1999, C025145) [nonpub. opn.].)
On June 26, 2023, Livingston filed a pro. per. motion for a Franklin hearing to
preserve evidence for use at a future youth offender parole hearing. On August 10, 2023,
the trial court issued a written order denying his motion because Livingston was
ineligible for relief as an LWOP offender over the age of 18 at the time of the offense.
Nonetheless, the trial court’s order was without prejudice to refiling the motion if the
California Supreme Court affirmed the opinion in People v. Hardin (2022)
84 Cal.App.5th 273. Livingston filed a notice of appeal with this court in September
2023. His opening brief was filed in February 2024, and this case was fully briefed on
March 19, 2024.
DISCUSSION
Livingston argues the guarantees of equal protection under the United States and
California Constitutions were violated by the youth offender parole statute’s exclusion of
LWOP offenders whose offenses were committed between the ages of 18 and 25.
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“California’s youth offender parole statute offers opportunities for early release to
certain persons who are incarcerated for crimes they committed at a young age. (Pen.
Code, §§ 3051, 4801.) When it was first enacted in 2013, the statute applied only to
individuals who committed their crimes before the age of 18; the purpose of the statute
was to align California law with then-recent court decisions identifying Eighth
Amendment limitations on life without parole sentences for juvenile offenders. In more
recent years, however, the Legislature has expanded the statute to include certain young
adult offenders as well. Under the current version of the statute, most persons
incarcerated for a crime committed between ages 18 and 25 are entitled to a parole
hearing during the 15th, 20th, or 25th year of their incarceration. (Pen. Code, § 3051,
subd. (b).) But not all youthful offenders are eligible for parole hearings. The statute
excludes, among others, offenders who are serving [LWOP] sentences . . . for a crime
committed after the age of 18. (Id., subd. (h).)” (Hardin, supra, 15 Cal.5th at pp. 838-
839.)
In Hardin, our Supreme Court resolved the conflict among the Courts of Appeal as
to whether section 3051, subdivision (h) violates the Fourteenth Amendment’s equal
protection guarantee by irrationally discriminating against young adult offenders
sentenced to LWOP for special circumstance murder. (Hardin, supra, 15 Cal.5th at
p. 839.) In Hardin, as in this case, the defendant was serving an LWOP sentence for a
special circumstance murder he committed between the ages of 18 and 25. (Ibid.)
Hardin filed a Franklin motion to develop and preserve evidence for later use in a youth
offender parole hearing under section 3051, arguing section 3051, subdivision (h)’s
exclusion of young adult LWOP offenders violated equal protection principles (Hardin,
at p. 840.) The trial court rejected the argument, but the Court of Appeal reversed.
(Ibid.)
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The Supreme Court disagreed, concluding section 3051, subdivision (h)’s
exclusion of LWOP offenders whose crimes were committed after the age of 18 was not
irrational or constitutionally invalid. (Hardin, supra, 15 Cal.5th at p. 864.) In reaching
this conclusion, the Supreme Court reasoned that the statute reflects the Legislature’s
permissible balancing of “multiple considerations, including both concerns about
increasing opportunities for release for young adults able to show growth and maturity
and concerns about calibrating the level of punishment appropriate for certain serious
criminal offenses.” (Id. at p. 857.)
Moreover, the Supreme Court rejected Hardin’s argument that “the Legislature
could not rationally conclude that a conviction for special circumstance murder is a
reliable indication of the seriousness of an offense or the culpability of the offender, such
that it could rationally decide to exclude the offender from receiving the youth offender
parole consideration to which other young adults are statutorily entitled.” (Hardin, supra,
15 Cal.5th at p. 859.) Rather, the court noted numerous decisions have upheld that
special circumstance murder is “sufficiently serious and morally culpable as to justify
imposing the most severe sanctions available under the law, up to and including death.”
(Ibid.)
Therefore, Hardin had not demonstrated that “the decision to deny a parole
hearing to an offender convicted of special circumstance murder is irrational, even if it is
possible that in certain cases some might consider an individual offender convicted of
multiple violent crimes more culpable, in a holistic sense, than an individual convicted of
special circumstance murder.” (Hardin, supra, 15 Cal.5th at p. 863.) Accordingly, the
court concluded Hardin had not shown “section 3051’s exclusion of young adult [LWOP]
offenders . . . is constitutionally invalid under a rational basis standard, either on its face
or as applied to Hardin and other individuals who are serving life without parole
sentences for special circumstance murder.” (Id. at p. 839.)
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The Supreme Court decided Hardin while this appeal was pending, and Livingston
concedes it forecloses his claim for relief even though he maintains his claim in order to
preserve the issue for a possible appeal to the Supreme Court of the United States.
Hardin is binding authority we must follow. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.) We therefore deny Livingston’s equal protection claim.
DISPOSITION
The judgment is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
EARL, P. J.
/s/
KRAUSE, J.
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