People v. Perez CA2/7 ( 2024 )

Filed 10/23/24 P. v. Perez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B332963
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA083397)
v.
JOSEPH PEREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard H. Kirschner, 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, Senior
Assistant Attorney General, Marc A. Kohm and Nikhil Cooper,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Joseph Perez appeals from a postjudgment order denying
his motion for a Franklin/Cook1 proceeding. The superior court
found Perez was ineligible for a youth offender parole hearing
under Penal Code section 30512 because he was sentenced to life
without the possibility of parole (LWOP) plus 25 years to life for
his convictions of special circumstance first degree murder with a
firearm enhancement, second degree robbery, and possession of a
firearm by a felon. The jury also found true gang and firearm
enhancement allegations. Perez was 22 years old when he
committed the offenses.
On appeal, Perez contends section 3051 violated his federal
and state constitutional rights to equal protection because young
adult offenders serving LWOP sentences for crimes they
committed when they were 18 to 25 years old are ineligible for
youth offender parole hearings, but young adult offenders serving
non-LWOP sentences and juvenile offenders who committed
crimes before the age of 18 serving LWOP sentences are eligible.
Perez also argues his LWOP sentence constituted cruel or
1 In People v. Franklin (2016) 63 Cal.4th 261, 283-284, the
Supreme Court held a juvenile offender who is eligible for a youth
offender parole hearing pursuant to Penal Code section 3051 is
entitled to a hearing to develop and preserve evidence of his or
her youth-related characteristics and the circumstances at the
time of the offense. In In re Cook (2019) 7 Cal.5th 439, 451, the
Supreme Court further held that “an offender entitled to a
hearing under sections 3051 and 4801 may seek the remedy of a
Franklin proceeding even though the offender’s sentence is
otherwise final.”
2 Further undesignated statutory references are to the Penal
Code.
2
unusual punishment in violation of the California Constitution.
(Cal. Const., art. I, § 17.) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial3
On May 5, 2016 Perez was at a motel in Sylmar with Cindy
Catalan and Perez’s friend, Evelyn Martinez. The three had been
using drugs, and Martinez arranged a purchase of Xanax from
her source, Miles Rose. Perez, Catalan, and Martinez drove to an
apartment building to meet Rose. Catalan drove; Martinez sat in
the front passenger seat, and Perez sat in the back seat behind
Martinez. On their way to meet Rose, Perez told Catalan that
they should “come up” on the seller, which meant to take the
drugs from Rose without paying.
At the apartment building, Rose came downstairs and
approached the passenger-side front window. After Rose handed
the pills to Martinez, which were ultimately passed to Perez, an
argument ensued over the price of the pills. Perez kicked
Catalan’s seat, and when she turned around, Perez nodded at
her. Catalan understood that Perez wanted her to drive away.
Perez was holding a gun in his lap. He pointed the gun at Rose
and said the pills were now his. Rose jumped in the car and
began fighting with Perez. As Catalan drove away, shots were
fired. Catalan jumped out of the moving car, which crashed.
Martinez and Perez ran away after the crash, and Rose exited the
car and left in a different direction. Rose later died from the
gunshot wound.
3 We summarize the evidence at trial from our prior opinion
in People v. Perez (Feb. 11, 2019, B284398) [nonpub. opn.] (Perez).
3
At trial a gang expert testified Perez was a member of the
San Fernando gang, and Catalan was an associate. The shooting
occurred in territory claimed by a newer, less powerful gang. The
expert opined based on a hypothetical mirroring the facts of the
case that the murder and robbery of the drug dealer were done
for the benefit of the San Fernando criminal street gang.
B. The Verdicts, Sentencing, Appeal, and Remand
The jury found Perez guilty of first degree murder (§ 187,
subd. (a)); count 1), second degree robbery (§ 211; count 2), and
possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3).
The jury found true as to count 1 the special circumstance
allegation Perez committed the murder while he was engaged in
the crime of robbery. The jury also found true the allegation that
Perez committed the three offenses for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)(C)) and, with respect to
counts 1 and 2, multiple firearm enhancement allegations.
The trial court sentenced Perez to an aggregate term of
LWOP, plus 25 years to life. On count 1 the court imposed a
sentence of LWOP, plus a consecutive term of 25 years to life for
the firearm enhancement (§ 12022.53, subd. (d)), plus a 10-year
term for the gang enhancement, which it stayed under
section 654. The court imposed but stayed the middle term of
three years on count 2 and imposed the middle term of two years
on count 3 to run concurrent with the sentence on count 1.
Perez appealed. We affirmed the judgment but reversed
the sentence and remanded for the trial court to exercise its
discretion whether to impose or strike the gang and firearm
enhancements. (Perez, supra, B284398.) On remand, the court
struck the gang enhancements on all counts. On count 1 the
4
court again imposed a sentence of LWOP, plus 25 years to life on
the firearm enhancement under section 12022.53, subdivision (d).
On count 2 the court imposed and stayed the lesser firearm
enhancements under section 12022.53, subdivisions (b) and (c).
C. Perez’s Motion for a Franklin/Cook Proceeding
On June 27, 2023 Perez, representing himself, filed a five-
page motion requesting a Franklin/Cook proceeding to make a
record of mitigating evidence tied to his youth and appointment
of counsel. (See In re Cook, supra, 7 Cal.5th at p. 451; People v.
Franklin, supra, 63 Cal.4th at pp. 283-284.) Perez asserted he
was sentenced to LWOP for first degree murder and was 22 years
old at the time of the offenses, citing the abstract of judgment.
Perez argued the exclusion from eligibility for youth offender
parole hearings for 18-to-25-year-old young adult offenders who
had been sentenced to LWOP violated his federal and state
constitutional rights to equal protection (U.S. Const., 14th
Amend.; Cal. Const., art. I, § 7, subd. (a)) and the state
Constitution’s ban on cruel or unusual punishment (Cal. Const.,
art. I, § 17).
On June 28, 2023 the superior court summarily denied
Perez’s request for a Franklin/Cook proceeding, describing
Perez’s motion as a petition for writ of habeas corpus. The court
explained in a written order, “Petitioner was sentenced to life
without the possibility of parole (LWOP), and is therefore
statutorily ineligible for a youth offender parole/Franklin
hearing.”4
4 Perez’s motion was titled a “Motion for a Franklin/Cook
Proceeding” (capitalization omitted), and we treat Perez’s appeal
as taken from a postjudgment order.
5
Perez timely appealed.
DISCUSSION
A. Section 3051 Does Not Violate Perez’s Constitutional Right
to Equal Protection
“Section 3051 provides that, at a time designated in the
statute, the Board of Parole Hearings must hold a parole hearing
‘for the purpose of reviewing the parole suitability of any prisoner
who was 25 years of age or younger . . . at the time of the
controlling offense.’ (§ 3051, subd. (a)(1); id., subd. (d).) How
much time must pass before an eligible youth offender receives a
parole hearing depends on the length of the original sentence for
the ‘“[c]ontrolling offense,”’ a term defined to mean ‘the offense or
enhancement for which any sentencing court imposed the longest
term of imprisonment.’ (Id., subd. (a)(2)(B).) An offender
sentenced to a determinate term becomes eligible for parole after
15 years (id., subd. (b)(1)); an offender sentenced to an
indeterminate life term of fewer than 25 years to life becomes
eligible after 20 years (id., subd. (b)(2)); and an offender
sentenced to an indeterminate life term of 25 years to life, or an
offender sentenced to life without parole for a crime committed
before the age of 18, becomes eligible after 25 years (id.,
subd. (b)(3), (4)).” (People v. Hardin (2024) 15 Cal.5th 834, 842-
843 (Hardin).)
“Certain persons are, however, categorically ineligible for
youth offender parole hearings, including offenders sentenced for
multiple violent or serious felonies under the ‘Three Strikes’ law
(Pen. Code, §§ 667, subds. (b)-(i), 1170.12); offenders sentenced
for sex offenses under the One Strike law (id., § 667.61); and
offenders who, ‘subsequent to attaining 26 years of age, commit[]
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an additional 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).) The statute also excludes those
who . . . are sentenced to life without parole for a controlling
offense committed after reaching the age of 18. (Ibid.)” (Hardin,
supra, 15 Cal.5th at p. 843.)
Perez contends section 3051’s exclusion of young adult
offenders (ages 18 to 25) with LWOP sentences from eligibility for
a youth offender parole hearing violated his federal and state
constitutional rights to equal protection. The Supreme Court
recently rejected this argument in Hardin, supra, 15 Cal.5th at
page 864.
In Hardin, Tony Hardin was sentenced to LWOP following
his conviction of first degree murder with a special circumstance
finding for an offense he committed when he was 25 years old.
(Hardin, supra, 15 Cal.5th at p. 840.) Hardin asserted
section 3051 violated his right to equal protection because “once
the Legislature decided to expand [youth offender parole]
opportunities to young adults, it could not rationally treat those
sentenced to life without parole differently from those convicted
of other serious crimes and serving lengthy parole-eligible
sentences.” (Hardin, at p. 846.) The Supreme Court clarified the
standard for rational basis review of an equal protection claim,
explaining, “[W]hen 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
7
applicable standard of review. The burden is on the party
challenging the law to show that it is not.” (Id. at pp. 850-851;
accord, People v. Williams (2024) 17 Cal.5th 99, 124 (Williams).)
Under rational basis review, applicable here, a court
“presume[s] that a given statutory classification is valid ‘until the
challenger shows that no rational basis for the unequal treatment
is reasonably conceivable.’ [Citation.] The underlying rationale
for a statutory classification need not have been ‘ever actually
articulated’ by lawmakers, nor ‘be empirically substantiated.’”
(Hardin, supra, 15 Cal.5th at p. 852; accord, Williams, supra,
17 Cal.5th at p. 124.) The Hardin court reviewed section 3051’s
legislative history and observed that “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.” (Hardin, at p. 855.) The court acknowledged that it
“may be true,” as Hardin had argued, that the crime-based
categories that affect at what age an offender is eligible for relief
may not be rationally related to the purpose of expanding
opportunities for early release based on the attributes of youth.
(Ibid.) But, the court continued, the Legislature was aware of
this point, and “nonetheless crafted a statutory scheme that
assigns significance to the nature of underlying offenses and
accompanying sentences.” (Ibid.) Therefore, the court reasoned,
“[t]he statutory framework indicates that the Legislature aimed
to increase opportunities for meaningful release for young adult
8
offenders, while taking into account the appropriate punishment
for the underlying crimes, depending on their severity.” (Ibid.)
The Supreme Court held Hardin could not establish that
“the Legislature’s decision to exclude offenders convicted of
special circumstance murder from the youth offender parole
system” is ‘so devoid of even minimal rationality that it is
unconstitutional as a matter of equal protection.’”5 (Hardin,
supra, 15 Cal.5th at p. 859.) The court explained that
section 190.2 adequately separates out the most egregious
murders (special circumstance murders), which are subject to the
most severe punishment—death or LWOP—from other murders
(id. at p. 859), and therefore, “it is difficult to see how the
Legislature that enacted section 3051 could have acted
irrationally in singling out special circumstance murder as a
particularly culpable offense.” (Id. at p. 860.) Accordingly,
Hardin failed to show “that the exclusion of offenders who are
serving sentences of life in prison without the possibility of parole
for a crime committed after the age of 18 from youth offender
parole eligibility is irrational.” (Id. at p. 864.)
Perez acknowledges that under Hardin he “may be unable
to prevail” on his equal protection claims based on the different
treatment of young adult offenders with LWOP from those who
committed murder but were not sentenced to LWOP.
Similar to the defendant in Hardin, Perez was sentenced to
LWOP after he was convicted of special circumstance murder.
However, Perez contends Hardin does not preclude his equal
5 In Hardin, the defendant raised only an equal protection
challenge under the equal protection clause of the Fourteenth
Amendment of the United States Constitution. (Hardin, supra,
15 Cal.5th at p. 847, fn. 2.)
9
protection argument that there is no rational basis to distinguish
between young adult offenders and juvenile offenders sentenced
to LWOP. Perez is correct that the Supreme Court in Hardin did
not consider this equal protection challenge, but the court
observed that this court had held, and Hardin did not dispute,
that it was unnecessary to address this argument, explaining
“the Legislature acted reasonably in distinguishing between
offenses committed before and after the age of 18 because the
Eighth Amendment (and the law more generally) makes the
same distinction.” (Hardin, supra, 15 Cal.5th at p. 846.)
Perez fails to show that the Legislature acted irrationally
in granting youth offender parole hearings to juvenile offenders
with LWOP sentences but denying such hearings to young adult
offenders with LWOP sentences. As explained by the Court of
Appeal in People v. Sands (2021) 70 Cal.App.5th 193, 204 in
rejecting a similar equal protection challenge to section 3051,
“The Legislature had a rational basis to distinguish between
offenders with the same sentence (life without parole) based on
their age. For juvenile offenders, such a sentence may violate the
Eighth Amendment. [Citations.] But the same sentence does not
violate the Eighth Amendment when imposed on an adult, even
an adult under the age of 26.” The Sands court reasoned “the
Legislature could rationally decide to remedy unconstitutional
sentences but go no further.” (Sands, at p. 204; accord, In re
Murray (2021) 68 Cal.App.5th 456, 463-464 [rejecting equal
protection challenge to section 3051 based on the different
treatment of juvenile and young adult offenders sentenced to
LWOP because “the United States and California Supreme
Courts have found the line drawn between juveniles and
nonjuveniles to be a rational one”]; People v. Morales (2021)
10
67 Cal.App.5th 326, 347 [“for purposes of LWOP offenders, the
line drawn at 18 is a rational one”]; People v. Acosta (2021)
60 Cal.App.5th 769, 779 [“[T]here is a rational basis for
distinguishing between juvenile LWOP offenders and young
adult LWOP offenders: their age.”].)
B. Section 3051 Does Not Violate the State Constitutional
Prohibition Against Cruel or Unusual Punishment
Perez contends his LWOP sentence constituted cruel or
unusual punishment under article 1, section 17 of the California
Constitution.6 He argues that sections 3051 and 48017 rendered
his LWOP sentence constitutionally excessive because the
Legislature, in enacting the sections, acknowledged that youthful
offenders who commit serious or violent offenses before they turn
26 years old are less culpable than older offenders, but it denied
youth offender parole hearings for young adult offenders
sentenced to LWOP. Perez has failed to meet his burden to show
his LWOP sentence constituted constitutionally excessive
punishment.
6 Perez does not contend his sentence constitutes cruel and
unusual punishment under the Eighth Amendment of the United
States Constitution.
7 Section 4801, subdivision (c), provides that “[w]hen a
prisoner committed his or her controlling offense . . . when he or
she was 25 years of age or younger, the board [of parole
hearings], in reviewing a prisoner’s suitability for parole
pursuant to Section 3041.5, shall give great weight to the
diminished culpability of youth as compared to adults, the
hallmark features of youth, and any subsequent growth and
increased maturity of the prisoner in accordance with relevant
case law.”
11
In In re Palmer (2021) 10 Cal.5th 959, 971-972, the
Supreme Court held with respect to excessive punishment claims
under the California Constitution that “the court’s inquiry
properly focuses on whether the punishment is ‘grossly
disproportionate’ to the offense and the offender or, stated
another way, whether the punishment is so excessive that it
‘“shocks the conscience and offends fundamental notions of
human dignity.”’” (Accord, In re Butler (2018) 4 Cal.5th 728, 746
[“A sentence violates the prohibition against unconstitutionally
disproportionate sentences only if it is so disproportionate that it
‘shocks the conscience.’”].) Palmer articulated “three analytical
techniques to aid our deferential review of excessiveness claims:
(1) an examination of the nature of the offense and the offender,
with particular attention to the degree of danger both pose to
society; (2) a comparison of the punishment with the punishment
California imposes for more serious offenses; and (3) a
comparison of the punishment with that prescribed in other
jurisdictions for the same offense.” (Palmer, at p. 973.) The
Supreme Court added, “A claim of excessive punishment must
overcome a ‘considerable burden’ [citation], and courts should
give ‘“the broadest discretion possible”’ [citation] to the legislative
judgment respecting appropriate punishment.” (Id. at p. 972.)
With respect to juvenile offenders, in Miller v. Alabama
(2012) 567 U.S. 460, 479, the United States Supreme Court held
that “the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile
offenders” (who committed their crime before they turned
18 years old). The court’s decision in Miller followed its decision
in Roper v. Simmons (2005) 543 U.S. 551, 574 (Roper), which held
the Eighth Amendment prohibited the imposition of the death
12
penalty for juvenile offenders. In People v. Caballero (2012)
55 Cal.4th 262, 268, the California Supreme Court held, in the
context of a 110-years-to-life sentence imposed on a juvenile for
nonhomicide offenses, that parole-eligible sentences for juvenile
offenders violate the Eighth Amendment if the parole eligibility
date falls beyond the offender’s natural life expectancy.
The California Supreme Court in People v. Flores (2020)
9 Cal.5th 371, 429, considered whether the Eighth Amendment’s
prohibition on the death penalty for juvenile offenders under
Roper should apply to youthful offenders who commit crimes
between the ages of 18 and 21. The court rejected the defendant’s
argument that the Legislature’s enactment of section 3051,
subdivision (a)(1), providing youth offender parole hearings to
most youthful offenders who were 25 or younger at the time of
their commitment offense, supported a “categorical bar on the
death penalty for individuals between the ages of 18 and 21 at
the time of their offenses.” (Flores, at p. 429; accord, People v.
Tran (2022) 13 Cal.5th 1169, 1234-1235 [rejecting argument
“that imposing the death penalty on persons for crimes
committed while they were 18 to 20 years old violates the state
and federal Constitutions because it is cruel and unusual
punishment”]; People v. Powell (2018) 6 Cal.5th 136, 191 [death
penalty did not constitute cruel and unusual punishment in
violation of the federal and state Constitutions where defendant
was 18 years old at the time of the killing].)
The Courts of Appeal have applied a similar analysis to
Eighth Amendment challenges to young adult LWOP sentences.
As the court explained in In re Williams, 57 Cal.App.5th 427,
439, “If the Eighth Amendment does not prohibit a sentence of
death for 21 year olds, then most assuredly, it does not prohibit
13
the lesser LWOP sentence.” (Accord, People v. Acosta, supra,
60 Cal.App.5th at p. 782 [LWOP sentences did not violate Eighth
Amendment where defendant was 21 years old at the time of the
murders]; People v. Montelongo (2020) 55 Cal.App.5th 1016, 1020,
1030-1032 [rejecting an 18-year-old defendant’s contention his
LWOP sentence was cruel and unusual punishment under the
Eighth Amendment].)
Perez argues that the cases that found young adult LWOP
sentences did not constitute cruel and unusual punishment relied
on the Eighth Amendment, and not article I, section 17 of the
California Constitution, which prohibits cruel or unusual
punishment. But Perez does not provide any authority or
rationale justifying a different result under the California
Constitution. And, as the California Supreme Court observed in
Hardin, supra, 15 Cal.5th at page 847, footnote 2, with respect to
Hardin’s equal protection challenge under the California
Constitution, there is “‘“no reason to suppose” that federal equal
protection analysis would yield a result different from what
would emerge from analysis of the state Constitution.’” (See
People v. Baker (2018) 20 Cal.App.5th 711, 733 [“There is
considerable overlap in the state and federal approaches.
‘Although articulated slightly differently, both standards prohibit
punishment that is “grossly disproportionate” to the crime or the
individual culpability of the defendant.’ [Citation.] ‘The
touchstone in each is gross disproportionality.’”].)
Applying the analytical framework established by In re
Palmer, supra, 10 Cal.5th at page 973, we conclude Perez’s
LWOP sentence does not constitute cruel or unusual punishment
under the California Constitution. Perez was convicted of special
circumstance murder when he was 22 years old, and we must
14
defer to the Legislature’s determination that his special
circumstance murder conviction warranted the severe
punishment of LWOP. (Id. at p. 972 [the Legislature is given
“considerable latitude in matching punishments to offenses”
because “‘[t]he choice of fitting and proper penalties is not an
exact science, but a legislative skill involving an appraisal of the
evils to be corrected, the weighing of practical alternatives,
consideration of relevant policy factors, and responsiveness to the
public will’”].) Perez’s LWOP sentence for special circumstance
murder is not “‘grossly disproportionate’ to the offense and the
offender,” nor is it “so excessive that it ‘“shocks the conscience
and offends fundamental notions of human dignity.”’” (Palmer, at
p. 972; see In re Butler, supra, 4 Cal.5th at p. 746.)
DISPOSITION
The order denying Perez’s motion for a Franklin/Cook
proceeding is affirmed.
FEUER, J.
We concur:
MARTINEZ, P. J.
SEGAL, J.
15