People v. Gary CA2/2 ( 2024 )

Filed 10/10/24 P. v. Gary CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B330533
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA001887)
v.
RICKEY LYNN GARY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, 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, Zee Rodriguez, Supervising Deputy
Attorney General, and Charles S. Lee, Deputy Attorney General,
for Plaintiff and Respondent.
******
Rickey Lynn Gary (defendant) argues that he is entitled to
a hearing under People v. Franklin (2016) 63 Cal.4th 261(Franklin) in anticipation of a future youth offender parole
hearing under Penal Code section 3051, even though he is
ineligible for relief under section 3051 because he was 19 years
old when he committed the crime and was sentenced to prison for
life without the possibility of parole (LWOP).1 Specifically,
defendant argues that the statute’s denial of relief to young
offenders sentenced to LWOP violates equal protection and
constitutes cruel and unusual punishment. Precedent either
forecloses or counsels strongly in favor of rejecting his arguments.
We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crimes
In June 1989, defendant and Richard Henry Ponton
(Ponton) robbed an Arco gas station in Redondo Beach,
California. The station manager was shot four to six times, and
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We draw these facts from our prior unpublished appellate
opinion in People v. Gary (Jan. 13, 2022, B310296), which was
drawn in turn from our prior unpublished opinion affirming
defendant’s convictions (People v. Gary (Mar. 26, 1993,
B055726)).
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died from his wounds. Defendant and Ponton made away with
$2,500.
B. Prosecution, conviction and appeal
A jury convicted defendant (and Ponton) of second-degree
robbery (§ 211) and the murder of the station manager (§ 187).
The jury also found true the special circumstance allegation that
defendant committed the murder during the course of the robbery
(§ 190.2, subd. (a)(17)). As to both crimes, the jury also found
true the allegations that defendant “personally used a firearm”
(former § 12022.5) and that “a principal . . . was armed” during
those crimes (§ 12022, subd. (a)). The trial court sentenced
defendant to life without the possibility of parole for the murder
plus seven years for the robbery. Defendant appealed, and this
division affirmed his convictions and sentence in an unpublished
opinion.
II. Procedural Background
In October 2022, defendant filed a writ of habeas corpus in
the trial court. Among other claims, defendant requested a
Franklin hearing because he was under 25 years of age at the
time of his crimes. In March 2023, the trial court denied
defendant’s petition, reasoning that he was not entitled to a
Franklin hearing because he was “statutorily ineligible for youth
offender parole by the plain language of section 3051, subdivision
(h).”
Defendant filed this timely appeal.3
3 Because defendant is challenging the denial of his
noncapital habeas petition, the proper vehicle for review is not an
appeal but rather a separate habeas petition filed in this court.
(People v. Gallardo (2000) 77 Cal.App.4th 971, 983.) However,
we have the discretion to overlook defendant’s procedural misstep
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DISCUSSION
Defendant argues that he is entitled to a so-called Franklin
hearing. In Franklin, supra, our Supreme Court held that
defendants eligible for a youth offender parole hearing under
section 3051 at some point in the future are entitled to an
evidentiary hearing now to preserve youth-related mitigation
evidence. (63 Cal.4th at pp. 283-284; In re Cook (2019) 7 Cal.5th
439, 449.) Thus, a defendant is entitled to a Franklin hearing
only if, as a threshold matter, he is entitled to a youth offender
parole hearing under section 3051. In its current iteration, that
statue entitles defendants who were 25 or under at the time of
their crimes to a “youth offender parole hearing” during the 15th,
20th, or 25th year of their incarceration (depending on the
severity of the offense). (§ 3051, subds. (a) & (b).) But not every
defendant may invoke section 3051; as relevant here, section
3051 does not apply to persons sentenced to LWOP for crimes
they committed “after [they] had attained 18 years of age.” (§
3051, subd. (h).) Because defendant was 19 years old when he
committed the crimes in this case and received an LWOP
sentence, he is not eligible for relief under the plain terms of
section 3051 (and hence not entitled to a Franklin hearing).
Defendant thus urges that section 3051’s statutory bar violates
equal protection and constitutes cruel and unusual punishment.
We review these constitutional challenges de novo. (In re Taylor
(2015) 60 Cal.4th 1019, 1035.)
I. Equal Protection
Defendant makes two equal protection challenges.
by construing his appeal as a habeas petition. (People v. Hodges
(2023) 92 Cal.App.5th 186, 190.)
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First, he argues that our Legislature acted irrationally—
and thus violated equal protection—by allowing young adults
(ages 18 to 25) who received sentences other than LWOP to obtain
relief under section 3051 while denying such relief to young
adults sentenced to LWOP. Our Supreme Court squarely rejected
that argument in People v. Hardin (2024) 15 Cal.5th 834(Hardin), reasoning that our Legislature could rationally
“assign[] significance to the nature of the underlying offenses and
accompanying sentences.” (Id. at pp. 839, 852-855.)
Second, defendant argues that our Legislature acted
irrationally—and thus violated equal protection—by allowing
juveniles sentenced to LWOP to obtain relief under section 3051
while denying such relief to young adults sentenced to LWOP.
Although Hardin did not address this argument, the weight of
Court of Appeal precedent has rejected this argument, reasoning
that our Legislature could rationally treat offenders differently
depending on whether they were juveniles or adults. (E.g., People
v. Sands (2021) 70 Cal.App.5th 193, 204; In re Murray (2021) 68
Cal.App.5th 456, 464; People v. Morales (2021) 67 Cal.App.5th
326, 347; People v. Jackson (2021) 61 Cal.App.5th 189, 196-197;
People v. Acosta (2021) 60 Cal.App.5th 769, 779; accord, Miller v.
Alabama (2012) 567 U.S. 460, 471 [“children are constitutionally
different from adults for purposes of sentencing”]; Roper v.
Simmons (2005) 543 U.S. 551, 574 [“The age of 18 is the point
where society draws the line for many purposes between
childhood and adulthood”].) We agree with these cases.
II. Cruel and/or Unusual Punishment
In arguing that his LWOP sentence constitutes cruel and
unusual punishment, defendant seems to acknowledge that
imposing an LWOP sentence on an adult for a murder is not
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inherently cruel and/or unusual; instead, he argues that his
LWOP sentence became cruel and/or unusual once the
Legislature granted other similar defendants relief under section
3051. As phrased, this appears to be little more than an equal
protection argument dressed up in Eighth Amendment clothing;
yet it is meritless no matter what garb it is wearing.
To the extent defendant is also making a more typical cruel
and/or unusual punishment argument, it also lacks merit. Both
the federal prohibition on “cruel and unusual punishment”
contained in the Eighth Amendment and the state prohibition on
“cruel or unusual punishment” enshrined in our Constitution
(Cal. Const., art. I, § 17, italics added) bar sentences that are
“grossly disproportionate” to the crime (the federal parlance) or
“so disproportionate . . . that it shocks the conscience and offends
fundamental notions of human dignity.” (Ewing v. California
(2003) 538 U.S. 11, 20; Harmelin v. Michigan (1991) 501 U.S.
957, 996-997 (conc. opn. of Kennedy, J.); People v. Boyce (2014) 59
Cal.4th 672, 721.) Applying this disproportionality principle, our
Supreme Court held in People v. Flores (2020) 9 Cal.5th 371, 429
that a death sentence was not unconstitutionally
disproportionate for a homicide committed by 18- to 21-year-olds.
If a death sentence for young adults in this age range is not
disproportionate, then a lesser sentence of LWOP for young
adults in the same age range is not. (Accord, In re
Williams (2020) 57 Cal.App.5th 427, 439.) Defendant argues that
most of this precedent focuses on the federal, Eighth Amendment
standard rather than California’s standard, but both standards
turn on proportionality and defendant provides no basis for
interpreting proportionality differently in the context of this case.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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