People v. Cano CA2/3 ( 2024 )

Filed 5/30/24 P. v. Cano CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B328232
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A705948)
v.
JAVIER O. CANO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hayden Zacky, Judge. Affirmed.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
In 1988, a jury convicted Javier Cano of two special
circumstance murders committed when he was 20 years old,
crimes for which he was sentenced to two terms of life without
parole. In 2022, Cano moved for a hearing under People v.
Franklin (2016) 63 Cal.4th 261 (Franklin), which held that a
defendant may develop a record for an eventual youth offender
parole hearing under Penal Code1 section 3051. The trial court
denied Cano’s motion because he was ineligible for a youth
offender parole hearing. Cano appeals, contending that section
3051 violates equal protection because it excludes young adult
offenders sentenced to life without parole and that his sentence is
cruel or unusual punishment under our California Constitution.
We reject these contentions and affirm the order.
BACKGROUND2
On July 11, 1986, Cano shot and killed Jose Venegas
during a confrontation at a gas station. Three days later, on July
14, 1986, Cano shot and killed Woodrow Nourse at a park. A jury
found Cano guilty of two counts of special circumstance first
degree murder (§§ 187, subd. (a), 190.3, subd. (a) [multiple
murder special circumstance]) and found that Cano personally
used a firearm (§ 12022.5). Cano was sentenced to two
consecutive life without parole terms plus two years.
1
All further undesignated statutory references are to the
Penal Code.
2
The facts underlying Cano’s conviction are from the Court
of Appeal opinion affirming his judgment of conviction, People v.
Cano (Mar. 21, 1995, B033571) [nonpub. opn.]. We grant Cano’s
motion to take judicial notice of that opinion. (Evid. Code, §§ 451,
subd. (a), 452, subd. (a).)
2
In November 2022, Cano, in propria persona, filed a motion
for a Franklin hearing and for appointment of counsel. Cano
argued that section 3051’s exclusion of 18 to 25 year olds
sentenced to life without parole violated equal protection and
state and federal constitutional bans on cruel and/or unusual
punishment. The trial court denied Cano’s motion, finding him
statutorily ineligible for a Franklin hearing. The trial court
rejected his equal protection arguments and did not address
whether Cano’s sentence was cruel and/or unusual punishment.
DISCUSSION
I. Equal protection
Over the past two decades, courts have recognized that
juveniles (persons under 18) are constitutionally different from
adults for sentencing purposes because of juveniles’ diminished
culpability and greater prospects for reform. (See generally
Miller v. Alabama (2012) 567 U.S. 460, 471.) Accordingly, the
Eighth Amendment prohibits imposing the death penalty on
juveniles (Roper v. Simmons (2005) 543 U.S. 551), life without
parole sentences on juveniles who commit nonhomicide offenses
(Graham v. Florida (2010) 560 U.S. 48), mandatory life without
parole sentences on juveniles (Miller, at p. 489), de facto life
without parole sentences on juvenile nonhomicide offenders
(People v. Caballero (2012) 55 Cal.4th 262), and a sentence of 50
years to life for juvenile nonhomicide offenders (People v.
Contreras (2018) 4 Cal.5th 349, 356).
In light of the judicial recognition of juveniles’ lessened
culpability and greater prospects for reform, our Legislature
enacted section 3051. Section 3051 requires the Board of Parole
Hearings to conduct a “youth offender parole hearing” at specified
3
times during the youth’s incarceration. Generally, persons who
were younger than 26 years old when they committed their
controlling offense are eligible for a youth offender parole hearing
if they were sentenced to a determinate term or a life term with
the possibility of parole. (§ 3051, subd. (b).) Persons sentenced to
life without parole are entitled to a hearing if they were younger
than 18 years old when they committed the controlling offense.
(§ 3051, subd. (b)(4).) However, persons sentenced to life without
parole who committed their controlling offense when they were
18 or older are ineligible for a youth offender parole hearing.3
(§ 3051, subd. (h).) Further, persons who are eligible for a youth
offender parole hearing must have a sufficient opportunity to
make a record of information relevant to that eventual hearing.
(Franklin, supra, 63 Cal.4th at p. 284.)
Here, Cano was 20 years old when he committed his
controlling offense and was sentenced to life without parole;
therefore, he was ineligible for a youth offender parole hearing
under section 3051. Although Cano had initially argued on
appeal that section 3051 violates equal protection and he is
therefore entitled to a Franklin hearing, our California Supreme
Court in People v. Hardin (2024) 15 Cal.5th 834 (Hardin), has
resolved the issue against Cano, as he now acknowledges.4
3
Similarly, persons sentenced under the Three Strikes or
One Strike laws and offenders who after attaining 26 years of age
commit an additional crime for which malice aforethought is an
element are ineligible for a youth offender parole hearing.
(§ 3051, subd. (h).)
4
In his opening brief on appeal, Cano appeared to argue that
section 3051 violates equal protection by (1) excluding young
adult offenders sentenced to life without parole from eligibility
4
Hardin held that when “plaintiffs challenge laws drawing
distinctions between identifiable groups or classes of persons, on
the basis that the distinctions drawn are inconsistent with equal
protection, courts no longer need to ask at the threshold whether
the two groups are similarly situated for purposes of the law in
question. The only pertinent inquiry is whether the challenged
difference in treatment is adequately justified under the
applicable standard of review,” which is rational basis review.
(Hardin, supra, 15 Cal.5th at pp. 850–851.) Under rational basis
review, courts “consider whether the challenged classification
ultimately bears a rational relationship to a legitimate state
purpose.” (People v. Chatman (2018) 4 Cal.5th 277, 289.)
while including juvenile offenders sentenced to life without
parole, and (2) treating young adult offenders sentenced to life
without parole for special circumstance murder differently from
young adult offenders serving parole-eligible life sentences for
other crimes. In his supplemental brief on appeal, Cano
appeared to concede both claims, acknowledging that Hardin
“foreclose[s] relief . . . in this appeal with respect to his equal
protection violation claim.” Cano then filed a letter stating that
his supplemental brief contained a typographical error, and that
he did not intend to concede any equal protection argument
regarding young adult offenders and juvenile offenders sentenced
to life without parole. To the extent Cano has not conceded that
equal protection claim, we agree with those courts finding that
age provides a rational basis for the Legislature to distinguish
between offenders with the same life without parole
sentence. (See, e.g., People v. Hardin (2022) 84 Cal.App.5th 273,
285–286, review granted Jan. 11, 2023, S277487, reversed on
other grounds by Hardin, supra, 15 Cal.5th 834; People v. Sands
(2021) 70 Cal.App.5th 193, 204; People v. Acosta (2021) 60
Cal.App.5th 769, 779-780.)
5
Hardin then turned to whether there was a rational basis
to exclude persons sentenced to life without parole for a crime
committed when they were 18 or older from a youth offender
parole hearing. The court found that while the Legislature’s
primary purpose in extending section 30515 to young adult
offenders was to give them the opportunity to obtain release
based on growth and rehabilitation, the Legislature balanced this
purpose with other concerns about culpability and the
appropriate punishment for certain very serious crimes. (Hardin,
supra, 15 Cal. 5th at p. 854.) In “designing section 3051, the
Legislature consciously drew lines that altered the parole
component of offenders’ sentences based not only on the age of
the offender (and thus the offender’s amenability to
rehabilitation) but also on the offense and sentence imposed. The
lines the Legislature drew necessarily reflect a set of legislative
judgments about the nature of punishment that is appropriate for
the crime.” (Id. at p. 855.)
Hardin rejected the argument that there is no rational
basis to distinguish between youthful offenders sentenced to life
without parole for special circumstance murder and youthful
offenders sentenced either to functionally equivalent life without
parole sentences or to indeterminate life terms for first degree
murder.6 (Hardin, supra, 15 Cal.5th at p. 858.) The court
observed that “legions of decisions” hold that “special
5
As originally enacted, only juveniles were eligible for youth
offender parole hearings, but, over the years, the age of eligibility
has been raised to 22 and then to 25. (See generally Hardin,
supra, 15 Cal.5th at pp. 845–846.)
6
The Hardin defendant, like Cano, was serving a life
without parole sentence for special circumstance murder
committed when he was over 18 years of age.
6
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.” (Id. at p. 859.) While the
court did not “foreclose the possibility of other challenges to the
distinctions drawn by the special circumstances statute based on
a more robust record or a more focused as-applied inquiry,
Hardin has not carried his burden to demonstrate that legislative
reliance on the special circumstance murder statute in section
3051, subdivision (h) is categorically irrational.” (Id. at p. 862.)
The court concluded that Hardin had not shown that the
“Legislature’s decision to expand youth offender parole hearings
to most young adult offenders, while excluding Hardin and others
similarly situated, violates equal protection under a rational
basis.” (Id. at p. 866.)
We are bound by Hardin. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455–456.) Accordingly, we
reject Cano’s equal protection challenge to section 3051.
II. Cruel or unusual punishment
Cano alternatively argues that evolving standards of
decency, as exemplified by the expansion of section 3051 to
include persons who committed their controlling offense at the
age of 25 and younger, have made his life without parole sentence
cruel or unusual punishment under the California Constitution.7
But, as we have said, section 3051 has its genesis in cases
concerning juveniles. That is, Miller v. Alabama, supra, 567 U.S.
460 prohibited mandatory life without parole terms for juveniles.
It did not apply to young adults like Cano who were 18 years or
older when they committed their crime. (People v. Acosta, supra,
7
Cano does not argue on appeal that his sentence violates
the federal Constitution.
7
60 Cal.App.5th at p. 782.) Our Supreme Court and numerous
Courts of Appeal have refused to extend Miller, as well as
Graham and Roper, to young adults 18 years of age or older.
(See, e.g., People v. Flores (2020) 9 Cal.5th 371, 429–430
[declining to extend Roper to 18-to-20-year-olds]; see People v.
Powell (2018) 6 Cal.5th 136, 191 [death penalty for 18 year old
with “intellectual shortcomings” does not violate federal and state
Constitutions]; People v. Gamache (2010) 48 Cal.4th 347, 407
[“lengthy confinement under death sentence does not constitute
cruel and unusual punishment” or violate federal and state
Constitutions]; In re Williams (2020) 57 Cal.App.5th 427, 437–
438 [life without parole for 21-year old offender not grossly
disproportionate to his culpability]; People v. Argeta (2012) 210
Cal.App.4th 1478, 1480–1481 [imposing functionally equivalent
life without parole sentence on 20 year old not cruel and unusual
punishment].) Thus, as Argeta observed, a line has been drawn
about at what age it is cruel or unusual punishment to impose a
life without parole sentence. That line currently stands at 17
years of age (i.e., those persons who are 17 and younger are
considered juveniles). Cano was 20 years old when he committed
the at-issue crimes and was not a juvenile. Accordingly, his life
without parole sentence does not constitute cruel or unusual
punishment.
8
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
ADAMS, J.
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