People v. Boiser CA4/1 ( 2024 )

Filed 10/15/24 P. v. Boiser CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081987
Plaintiff and Respondent,
(Super. Ct. No. 16CR009210)
v.
GREGORY DERRICK BOISER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, John Peter Vander Feer, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, A. Natasha Cortina, Paige B. Hazard
and Kelley Johnson, Deputy Attorneys General for Plaintiff and Respondent.
After a jury convicted Gregory Derrick Boiser of second degree murder
(Pen. Code,1 § 187, subd. (a); count 1) and attempted murder (§§ 664/187,
1 Undesignated statutory references are to the Penal Code.
subd. (a); count 2) with true findings on various firearm allegations,2 the
court sentenced him to 23 years plus 80 years to life, an upper term
determinate sentence that took into account Boiser’s admission to a prior
2010 conviction constituting both a serious felony (§ 667, subd. (a)(1)) and a
strike (§§ 1170.12, subds. (a)-(d), 667.5, subds. (b)-(i)).
On appeal of his convictions (People v. Boiser (May 18, 2022, D078985)
[nonpub. opn.]), this court vacated Boiser’s sentence and remanded the
matter for resentencing consistent with section 1170, subdivision (b), which
makes the middle term the presumptive sentence in the absence of
aggravating circumstances stipulated to by the defendant or found true
beyond a reasonable doubt by a trier of fact.
Thereafter, the trial court resentenced Boiser3 to the middle term of 7
years, doubled to 14 years for the count 2 attempted murder, plus 5 years for
the admitted prior conviction, which the court declined to strike under section
1385 or any other basis. Finding that dismissing the firearm enhancements
would endanger public safety, it imposed the same indeterminate sentence:
15 years to life doubled to 30 years to life for Boiser’s count 1 murder
conviction, and consecutive 25-year-to-life terms for the two section 12022.53,
subdivision (d) firearm enhancements, giving Boiser a total sentence of 19
years plus 80 years to life.
2 These were allegations that in the commission of count 1 and count 2,
Boiser personally and intentionally discharged a firearm that caused death or
great bodily injury (§ 12022.53, subds. (d), (e)), and in the commission of both
counts, he personally and intentionally discharged and used a firearm
(§ 12022.53, subds. (b), (c)).
3 As Boiser points out, the minute order from the hearing erroneously
states that he was resentenced under section 1170.95.
2
In this appeal, Boiser contends the court abused its discretion and
deprived him of his right to due process by imposing a de facto term of life
without the possibility of parole and by failing to dismiss his firearm
enhancements under section 1385, subdivision (c), in part because it did not
give “great weight” to various mitigating factors, nor did it realistically
“consider whether there was a likelihood [his] release at age 70, 80, or 90
would actually result in ‘physical injury or serious danger to others.’ ” Boiser
further contends his ineligibility from the Elderly Parole Program (§ 3055)
due to his prior strike violates his right to equal protection.
We asked the parties for supplemental briefing to address the impact, if
any, of the California Supreme Court’s decision in People v. Walker (2024) 16
Cal.5th 1024 on this appeal.4 Having considered Walker and Boiser’s
contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The detailed background facts are stated in our prior opinion, People v.
Boiser, supra, D078985, and we need not repeat them here. As more fully
recounted there, in April 2016, Boiser used a shotgun to shoot a man point
blank at his chest, killing him. Then in a kneeling “hunting position,” he shot
another man trying to escape the scene, essentially blowing apart his
4 The question on review in Walker was: “Does the amendment to . . .
section 1385, subdivision (c) that requires trial courts to ‘afford great weight’
to enumerated mitigating circumstances . . . create a rebuttable presumption
in favor of dismissing an enhancement unless the trial court finds dismissal
would endanger public safety?” The parties in Walker subsequently agreed in
briefing before the high court that the Court of Appeal had misinterpreted
the language as imposing a rebuttable presumption. (People v. Walker,
supra, 16 Cal.5th at p. 1029.) Thus, in Walker, the court considered the
parties’ dispute over “the proper construction of that phrasing and its impact
on a trial court’s authority under section 1385, subdivision (c).” (Ibid.)
3
stomach, requiring him to undergo multiple surgeries and use a colostomy
bag. Before the events, Boiser told everyone present he was going to kill
them, then after the shooting said to his second victim something like, “I got
you now.”
Before his February 2023 resentencing hearing, Boiser asked the court
to dismiss his enhancements under section 1385, subdivision (c), claiming
that statute “mandate[d]” their dismissal. Pointing out he was 59 years old,
he argued that because he would serve at least 22 years before being eligible
for release, the court was required to dismiss all of the enhancements because
they would result in a sentence in excess of 20 years, one of the mitigating
circumstances of section 1385. Boiser further argued the court could impose
only one enhancement (§ 1385, subd. (c)(2)(B)), and that his serious felony
and strike allegations were “premised upon convictions that are more than
five years old.” Boiser maintained given his age and possibility of release it
would be “all but impossible to make a finding [he] would be a danger to
public safety if the lesser sentence was imposed.” He finally argued section
1385 applied to strike allegations.
The People opposed the request, arguing that dismissal under section
1385 was not mandatory in cases involving multiple enhancements or
enhancements resulting in over-twenty-year sentences. The People argued
that prior strike allegations were not considered enhancements for purposes
of applying section 1385.
At the outset of Boiser’s February 2023 resentencing hearing, the court
stated it had read the parties’ papers concerning section 1385, the People’s
sentencing recommendation, the abstract of judgment and probation report,
as well as case authorities concerning the court’s discretion to strike or
impose a lesser penalty to firearm enhancements. After imposing the 19-year
4
determinate term, the court imposed the same indeterminate term of 80
years to life, including the 25-year-to-life firearm enhancements on counts 1
and 2. As to the enhancements, the court stated:
“The court is well aware of its discretion. I cited [People v. Tirado
(2022) 12 Cal.5th 688] for the record, so it should be clear to any reviewing
court that I recognize I have the discretion to strike the firearm
enhancements or to impose some lesser punishment . . . . [¶] I also looked at
[section] 1385, and I understand [section] 1385.” The court then discussed
two cases taking different approaches on the issue, People v. Walker (2022) 86
Cal.App.5th 386, affirmed but criticized (Aug. 15, 2024, S278309) 16 Cal.5th
1024 (Walker) and People v. Ortiz (2023) 87 Cal.App.5th 1087 (Ortiz). It
ultimately declined to strike the enhancements notwithstanding the
disagreement:
“[M]y position is under either Walker or Ortiz, under [section] 1385,
the—in my view, dismissing the enhancement, unless—would endanger the
public safety. Meaning, there’s likelihood dismissal of [the] enhancement
would result—and I know the argument by defense is well, the sentence is so
long, he’s not that young. So he won’t be a danger. [¶] This—I think in my
review of the evidence, if this was a semi-automatic shotgun, or a pump-
action shotgun that’s capable of having five rounds or more, instead of a
single-shot shotgun, we would probably be dealing with multiple murders
here. He threatened to kill everyone in that room. He killed one individual,
almost killed the other one. That individual now has a colostomy bag. Had,
basically, his intestines outside of his body and survived. [¶] And in looking
at the egregious nature of this case, going to that location, trying to chase
down—well, shooting the one individual, going after the others, and chasing
down and then fleeing, Mr. Boiser is a danger. He’s always going to be a
5
danger. It doesn’t take a lot of strength, even at 80 or 90 to pull a trigger of a
firearm. There’s not a lot of strength involved. It’s not like you’re attacking
somebody with a bludgeon and trying to beat them death. To pull a trigger
has very little muscle [sic]. Just pull of the trigger. That’s what happened in
this case, twice. [¶] And so, under [section] 1385, although there’s multiple
enhancements, the court doesn’t believe it’s appropriate, and would not strike
them. Although, I know I can. Or I can strike them—I know I understand
what I can do. I can strike the enhancement. I can also . . . not strike the
enhancement and impose the punishment is the other option. I don’t believe
it’s appropriate in the circumstances, regardless of what ultimately becomes
the decisions of the Supreme Court, now that we have a split authority.”
“[S]o, in looking at the circumstances of this case, you know, it could
have been—you know, it’s just a horrific act to shoot one person and go after
another. And then the threats to kill everybody else in that room that
fortunately did not occur. The fact that Mr. Boiser is probably not going to be
released in his lifetime, that doesn’t change the court’s perspective as a basis
for either striking under [section] 1385.”
The court concluded: “So, either way, under Walker or Ortiz, and under
. . . section 1385, however it’s ultimately interpreted, the court believes that
based on the circumstances of this case, and what occurred—one person is
dead, another person is suffering injuries that will be affected by the rest of
his life [sic]—that there’s a likelihood result of physical injury or serious
dangerous to others. Specifically, that additionally that he threatened to kill
everybody else in that room, and was unsuccessful in doing so.”
The court invited counsel’s argument. The prosecutor stated the court
had touched on all points he would have addressed. Defense counsel then
made his points in the following colloquy:
6
“[Defense counsel]: “Your Honor, as to the determinate term, I’ll
submit. As to whether the court should exercise its discretion, frankly, I
think the statute is strangely written. I think there’s a lot of things—
“The court: I agree with you on that point.
“[Defense counsel]: —with the way [section] 1385 is written, that will
always be the case. One such is what we have applied here, is that any time
a person is given a life sentence of any type, the parole board is going to have
to make an assessment before their release, as to whether or not they are a
danger to public safety. By definition, one would indicate that someone can’t
be a danger to public safety under that scheme. And if so, they would be kept
in a state prison. There’s no danger, and no requirement that a court make
an attempt to predict someone’s future conduct 15 and/or 25 years or 30 years
down the . . . road. [¶] As to the court’s interpretation, how is it doing now, I
think that’s probably a more prudent way of doing things.
“The court: We’ll all find out at some point.
“[Defense counsel]: I suppose we’ll ultimately find out in this case. I’m
not sure it makes a lot of sense for us to even set this case up to have any real
issues on appeal, when we know the reality is that Mr. Boiser, at the very
earliest, is going to be in his 70’s when he gets released—or if he gets
released. And if he’s ever released, the parole board will determine that he’s
not a danger to public safety. With those two things, I’ll submit.
“The court: I don’t base my sentencing decision on what the parole
board may or may not do. I base my decision based on the evidence that I
heard. And that’s going to be my decision. Anything else?
“[Defense counsel]: No, sir. I’ll submit.”
The court resentenced Boiser to 19 years plus 80 years to life as stated
above, along with restitution, fines, fees and custody/conduct credits.
7
DISCUSSION
I. Application of Section 1385 to Boiser’s Firearm Enhancements
A. The Law and Standard of Review
Under the present version of section 12022.53, a court “may, in the
interest of justice pursuant to Section 1385 and at the time of sentencing,
strike or dismiss an enhancement otherwise required to be imposed by this
section.” (§ 12022.53, subd. (h); People v. Tirado, supra, 12 Cal.5th at pp.
695-696; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15-16.)
Effective January 1, 2022, the Legislature in Senate Bill No. 81 (Stats.
2021, ch. 721, § 1) amended section 1385 to provide that, with an exception
not applicable here, a court “[n]otwithstanding any other law, . . . shall
dismiss an enhancement if it is in the furtherance of justice to do so . . . .”
(§ 1385, subd. (c)(1); see People v. Walker, supra, 16 Cal.5th at p. 1033; People
v. Mendoza (2023) 88 Cal.App.5th 287, 295.)
Subdivision (c)(2) of section 1385 provides in part: “In exercising its
discretion under this subdivision, the court shall consider and afford great
weight to evidence offered by the defendant to prove that any of [nine listed]
mitigating circumstances . . . are present. Proof of the presence of one or
more of these circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the enhancement
would endanger public safety. ‘Endanger public safety’ means there is a
likelihood that the dismissal of the enhancement would result in physical
injury or other serious danger to others.” The statute goes on to say that
“[w]hile the court may exercise its discretion at sentencing, this subdivision
does not prevent a court from exercising its discretion before, during, or after
trial or entry of plea.” (§ 1385, subd. (c)(3).)
8
Three mitigating circumstances are relevant here. One is when an
enhancement is based on a defendant’s prior conviction that is over five years
old. (§ 1385, subd. (c)(2)(H).) Another relates to multiple enhancements.
(§ 1385, subd. (c)(2)(B).) Specifically, subdivision (c)(2)(B) of section 1385
states that when “[m]ultiple enhancements are alleged in a single case . . . all
enhancements beyond a single enhancement shall be dismissed.” The third is
when applying an enhancement could result in a sentence of over 20 years.
(§ 1385, subd. (c)(2)(C).) Subdivision (c)(2)(C) of section 1385 states that
when “[t]he application of an enhancement could result in a sentence of over
20 years[ ] . . . the enhancement shall be dismissed.”5
Following the completion of briefing in this matter, the California
Supreme Court decided People v. Walker, supra, 16 Cal.5th 1024, and
addressed how section 1385, subdivision (c)(2)’s “great weight” language
5 Despite the “shall be dismissed” language in subdivisions (c)(2)(B) and
(c)(2)(C) of section 1385, California courts have rejected arguments that
dismissal is mandated in every case when those mitigating circumstances
exist irrespective of a court’s finding that an enhancement’s dismissal would
endanger public safety. (People v. Mendoza, supra, 88 Cal.App.5th at pp.
295-298; People v. Lipscomb, supra, 87 Cal.App.5th at pp. 17-20.) In
Mendoza, the court considered the directive in section 1385, subdivision
(c)(2)(C) in the context of the entire statutory framework and concluded that
the statute meant “that if the court finds that dismissal of an enhancement
‘would endanger public safety,’ then the court need not consider the listed
mitigating circumstances. [Citation.] The ‘shall be dismissed’ language in
section 1385[, subdivision] (c)(2)(C), like the language of all of the listed
mitigating circumstances, applies only if the court does not find that
dismissal of the enhancement would endanger public safety.” (Mendoza, 88
Cal.App.5th at p. 296.) Boiser does not argue that dismissal of his
enhancements was mandated based on the “shall be dismissed” language, or
that that language in those mitigating circumstances warrants a different
treatment than the others, so, like the court in People v. Walker (supra, 16
Cal.5th at p. 1035, fn. 5), “we have no occasion to consider that question
here.” (Ibid.)
9
impacted a trial court’s sentencing discretion. Based on that section’s plain
language (Walker, 16 Cal.5th at p. 1033), the court found it “clear that the
structure [of section 1385, subdivision (c)] does not ‘presume’ [citation] an
enhancement should be dismissed whenever an enumerated mitigating
circumstance is present, but instead ‘the ultimate question before the trial
court remains whether it is in the furtherance of justice to dismiss an
enhancement’ [citation] and this ‘furtherance of justice’ (§ 1385, subd. (c)(2))
inquiry requires a trial court’s ongoing exercise of ‘discretion’ (id, subd. (c)(2)).
Thus, notwithstanding the presence of a mitigating circumstance, trial courts
retain their discretion to impose an enhancement based on circumstances
‘long deemed essential to the “furtherance of justice” inquiry.’ ” (Walker, 16
Cal.5th at p. 1033, citing Ortiz, supra, 87 Cal.App.5th at pp. 1098-1099.)6
The court held that the statute’s plain language did not create a
rebuttable presumption that can only be overcome by a finding that dismissal
endangers public safety, but “emphasize[d] . . . that in most cases, ‘if the trial
court finds that dismissal of an enhancement would endanger public safety,
then it is hard to see how dismissal would further the interests of justice,’
notwithstanding the applicability of any mitigating factors identified in
subdivision (c)(2).” (People v. Walker, supra, 16 Cal.5th at p. 1033.)
Walker proceeded to “consider what it means for a mitigating
circumstance to ‘weigh[ ] greatly in favor’ . . . of dismissal.” (People v. Walker,
6 The court also cited in part to the Advisory Committee comment to
California Rules of Court, rule 4.428, which addresses “[f]actors affecting
imposition of enhancements” and provides: “Case law suggests that in
determining the ‘furtherance of justice’ the court should consider . . . the
factors in aggravation and mitigation including the specific factors in
mitigation of section 1385(c); and the factors that would motivate a
‘reasonable judge’ in the exercise of their discretion.” (People v. Walker,
supra, 16 Cal.5th at p. 1033.)
10
supra, 16 Cal.5th at p. 1034.) The court adopted the Ortiz court’s
understanding as consistent with the statute’s construction: “[A] trial court
must ‘engage[ ] in a holistic balancing with special emphasis on the
enumerated mitigating factors,’ in which the mitigating factors weigh
‘strongly in favor of . . . dismissal . . . .’ ” (Walker, at p. 1029, quoting Ortiz,
supra, 87 Cal.App.5th at p. 1096.) And “mitigating circumstances are
entitled to ‘increased significance and importance in the [court’s] overall
balancing of factors’ under section 1385.” (Walker, at p. 1036.) The court
explained: “Stated simply, if the court does not conclude that dismissal would
endanger public safety, then mitigating circumstances strongly favor
dismissing the enhancement. But ultimately, the court must determine
whether dismissal is in furtherance of justice. This means that, absent a
danger to public safety, the presence of an enumerated mitigating
circumstance will generally result in the dismissal of an enhancement unless
the sentencing court finds substantial, credible evidence of countervailing
factors that ‘may nonetheless neutralize even the great weight of the
mitigating circumstance, such that dismissal of the enhancement is not in
furtherance of justice.’ ” (Id. at p. 1036, italics added.)
Walker concluded its formulation gave “force to the ‘great weight’
standard: Pursuant to section 1385, subdivision (c)(2), absent a finding that
dismissal would endanger public safety, a court must assign significant value
to the enumerated mitigating circumstances when they are present. In
practice, the presence of an enumerated mitigating circumstance will
generally result in the dismissal of an enhancement unless the sentencing
court finds substantial, credible evidence of countervailing factors that ‘may
nonetheless neutralize even the great weight of the mitigating circumstance,
11
such that dismissal of the enhancement is not in furtherance of justice.’ ”
(People v. Walker, supra, 16 Cal.5th at p. 1037.)
We review for abuse of discretion the “court’s determination that
dismissal of [an] enhancement would endanger public safety.” (People v.
Mendoza, supra, 88 Cal.App.5th at p. 298.) Further, in assessing sentencing
issues, we apply a presumption of regularity of judicial exercises of discretion.
(People v. Mosley (1997) 53 Cal.App.4th 489, 496.) It is Boiser’s burden in the
face of those presumptions to affirmatively demonstrate error. (People v.
White Eagle (1996) 48 Cal.App.4th 1511, 1523.)
B. Contentions
In his original opening brief, Boiser contended that in resentencing
him, the court “disregarded” section 1385 by not giving “great weight” to the
mitigating factors. According to Boiser, the court abused its discretion by
failing to “consider whether there was a likelihood that [his] release at age
70, 80, or 90 would actually result in ‘physical injury or serious danger to
12
others,’ ” and imposing a life-without-the-possibility-of-parole term.7 He
asserted the court did not “realistically consider [his] danger to public safety
at the earliest time he would be eligible for parole even if given the minimum
term, and instead focused solely on the date at the time of resentencing,
which was approximately six years after the offense.” He argued we must
remand “with instructions to realistically view [his] danger to public safety in
terms of conditions present at the time he would be released if enhancements
were dismissed such that would allow for the possibility of a parole hearing
during his lifetime” and “consider whether, if a parole board determines he is
not a danger to others, the governor does not overrule the parole board’s
decision, and [he] is actually released in his 70[’]s, 80[’]s, or even 90[’]s, there
is a likelihood that [his] release ‘would result in physical injury or other
serious danger to others.’ ”
7 Boiser also argued that the California Supreme Court has defined the
meaning of “great weight” in People v. Martin (1986) 42 Cal.3d 437 to mean
that giving great weight to a factor or circumstance means the factor or
finding recommendation “must be followed in the absence of ‘substantial
evidence of countervailing considerations of sufficient weight to overcome the
[factor].’ ” (Id. at p. 447.) But Walker addressed and rejected the same
contention: that “great weight” in section 1385 must be defined in a manner
consistent with its definition of that same phrase in Martin in that “a court
must dismiss an enhancement when an enumerated mitigating circumstance
is present ‘in the absence of “substantial evidence of countervailing
considerations of sufficient weight to overcome the recommendation.” ’ ”
(People v. Walker, supra, 16 Cal.5th at p. 1035.) Pointing to the statute’s
enumeration of the nine specific mitigating factors, Walker held that “by its
very terms, section 1385, subdivision (c) provides trial courts with clear
direction, without the need to import an extratextual definition from Martin,
supra, 42 Cal.3d at page 447.” (Walker, at p. 1037.) It found “no indication
the Legislature as a whole intended to incorporate Martin’s ‘great weight’
standard into section 1385, subdivision (c)(2) when it adopted Senate Bill No.
81.” (Id. at p. 1037, fn. 7.)
13
In his supplemental briefing addressing Walker, Boiser argues the
decision does not change his position that the trial court abused its discretion
“by assuming that anything less than a defacto term of LWOP would
endanger public safety.” He maintains “[i]t was not reasonable for the court,
without ever having weighed or considered mitigating circumstances, to
decide decades before [he] reached his 70[’]s or 80[’]s that [he] would still
endanger public safety.” According to Boiser, Walker becomes “relevant only
upon remand, when the trial court must apply the formulation as determined
by the Supreme Court, and ‘assign significant value’ to any enumerated
mitigating circumstances, which should ‘result in the dismissal of an
enhancement unless the sentencing court finds substantial, credible evidence
of countervailing factors that “may nonetheless neutralize even the great
weight of the mitigating circumstance, such that dismissal of the
enhancement is not in furtherance of justice.” ’ ”
For their part, the People argue Walker supports their position, namely
“the trial court was not required to consider any of the mitigating
circumstances in section 1385, subdivision (c) because it found that dismissal
of the enhancements would endanger public safety.” They characterize
Walker as holding “section 1385, subdivision (c)(2) requires a court to afford
great weight to enumerated mitigating factors unless dismissal would
endanger public safety . . . , but it does not create a rebuttable presumption
in favor of dismissing an enhancement.”
C. Analysis
We conclude Boiser has not shown the trial court abused its discretion
in resentencing him and by declining to dismiss his firearm enhancements.
The court’s explicit finding that such dismissal would endanger public safety,
under Walker’s formulation of section 1385, subdivision (c)(2), means it was
14
not required to “assign significant value to the [applicable] mitigating
circumstances . . . .” (People v. Walker, supra, 16 Cal.5th at p. 1037 [“absent a
finding that dismissal would endanger public safety, a court must assign
significant value to the enumerated mitigating circumstances when they are
present,” italics added]; accord, People v. Mendoza, supra, 88 Cal.App.5th at
p. 296 [“if the court finds [under section 1385, subdivision (c)(2)] that
dismissal of an enhancement ‘would endanger public safety,’ then the court
need not consider the listed mitigating circumstances”]; People v. Renteria
(2023) 96 Cal.App.5th 1276, 1289-1290 [“the Legislature understood that the
mitigating circumstances for multiple enhancements and sentences over 20
years do not require dismissal of enhancements where dismissal would
endanger public safety”].) Boiser does not assign error to the fact that the
court did not explicitly use the words “furtherance of justice” in declining to
dismiss the enhancements, but that omission in any event is of no moment
when the court’s result is legally proper. (People v. Zapien (1993) 4 Cal.4th
929, 976 [appellate court reviews result, not rationale]; People v. Malbry
(2024) 103 Cal.App.5th 1174, 1184 [“It is unnecessary for the trial court to
have stated the right rationale if its result is legally proper”].)
Likewise, the court did not err by its findings concerning public safety.
Contrary to Boiser’s argument, its remarks did in fact show it conducted a
forward-looking view of Boiser’s potential danger at an advanced age,
specifically noting, “It doesn’t take a lot of strength, even at 80 or, 90 to pull a
trigger of a firearm.” (Italics added.) The court observed that before his
shootings, Boiser threatened to kill all the individuals present—“everyone in
that room.” It focused on Boiser’s “horrific” and “egregious” conduct, which is
supported by the evidence that Boiser killed one individual by shooting him
at point blank range, tried to chase down others, and finally shot his last
15
victim hunting style, blowing apart his stomach. Though the court
interrupted its own thought, it in fact expressly found a “likelihood” that
dismissal of Boiser’s enhancements, and an eventual earlier release, would
“result in physical injury or other serious danger to others.” (§ 1385, subd.
(c)(2).) Boiser provides no authority for the proposition that the court was
required to consider actions of the parole board in its analysis.
In sum, we reject Boiser’s contentions that the trial court abused its
discretion in declining to dismiss his firearm enhancements under section
1385.
II. Equal Protection Argument
Boiser contends his exclusion from section 3055’s Elderly Parole
Program resulting from the trial court’s refusal to strike his prior conviction
(§ 3055, subd. (g)8) violates his right to equal protection under the United
States and California Constitutions (see U.S. Const., 14th Amend.; Cal.
Const., art. I, § 7). Boiser argues he is similarly situated to other older
offenders and “[t]here is no plausible basis for the disparity in treating [him]
different from other elderly inmates.”9 He asks us to reach the same
8 Section 3055, subdivision (g) provides: “This section does not apply to
cases in which sentencing occurs pursuant to Section 1170.12, subdivisions
(b) to (i), inclusive, of Section 667, or in cases which an individual was
sentenced to life in prison without the possibility of parole or death.”
9 Boiser gives the following example: “[I]f appellant had been convicted
in the current case of a mass homicide with multiple verdicts of first degree
murder committed with a gun, he would be subject to multiple consecutive
terms of 25 years to life. Absent a single strike offense, however, his
eligibility for parole would be determined by a [p]arole [b]oard and subject to
the governor’s veto after serving 20 years in prison. Because of a single prior
conviction, though, this sentencing judge made the unilateral decision to deny
appellant any possibility of release during appellant’s lifetime.”
16
conclusion as the court did for the offenders in People v. Edwards (2019) 34
Cal.App.5th 183, which has now been disapproved by the California Supreme
Court in People v. Williams (2024) 17 Cal.5th 99.)10 Boiser goes on to point
out that the underlying facts about his prior conviction are absent from the
record but it was assault not involving a firearm, a wobbler, and argues it
does not justify imposition of a de facto life-without-the-possibility-of-parole
sentence. He maintains it violated both due process and equal protection to
deprive him of an opportunity for release on “such a sketchy and unclear
record . . . .”
The People respond first that the claim is forfeited because Boiser did
not raise it in the trial court. They further argue he cannot satisfy the
requirements for an equal protection violation in any event; that as a
recidivist he is not similarly situated to non-recidivist offenders, and even if
he were so situated, there is a rational basis for treating repeat and non-
repeat offenders differently.
We agree Boiser forfeited the claims. (People v. Alexander (2010) 49
Cal.4th 846, 880, fn. 14 [defendant’s failure to raise equal protection in the
trial court forfeited it]; People v. Rogers (2006) 39 Cal.4th 826, 854 [same];
People v. Gray (2024) 101 Cal.App.5th 148, 168 [same].) “ ‘ “[A] constitutional
10 The court in People v. Williams, supra, 17 Cal.5th 99 held that the
Legislature’s exclusion of One Strike offenders from youth offender parole
consideration under section 3051 “is rationally related to legitimate state
interests in addressing recidivism of serious and dangerous sex offenders and
setting punishments that are appropriate for the triggering crimes committed
under the specified circumstances. Because a plausible basis exists for the
Legislature’s differential treatment of One Strike offenders, we may not
second-guess whether this decision was wise, fair, or logical.” (Id. at p. 136.)
It thus disapproved of People v. Edwards, supra, 34 Cal.App.5th 183, which
had sustained an equal protection challenge in those circumstances.
(Williams, at pp. 113, 137, fn. 12.)
17
right,” or a right of any other sort, “may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right before a
tribunal having jurisdiction to determine it.” ’ ” (In re Sheena K. (2007) 40
Cal.4th 875, 880-881.)
Neither an equal protection claim nor the Elderly Parole Program was
mentioned in Boiser’s section 1385 papers, and defense counsel’s remarks at
the resentencing hearing cannot reasonably be interpreted as arguing Boiser
would be treated differently from other elderly offenders without justification.
(See People v. Hardin (2024) 15 Cal.5th 834, 847 [“ ‘At core, the requirement
of equal protection ensures that the government does not treat a group of
people unequally without some justification’ ”].)
Even if we were to consider an equal protection claim for the first time
on appeal, we would reject it. As the People point out, the California
Supreme Court has changed the inquiry “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 . . . .”
(People v. Hardin, supra, 15 Cal.5th at p. 850; see also People v. Williams,
supra, 17 Cal.5th at p. 124 [applying that inquiry “where the issue presented
is whether section 3051(h) [an early parole eligibility mechanism for youth
offenders] violates equal protection ‘by excluding young adults convicted and
sentenced for serious sex crimes under the One Strike law (§ 667.61) from
youth offender parole consideration, while young adults convicted of first
degree murder are entitled to such consideration’ ”].) In that instance,
“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.” (Hardin, at pp. 850-
18
851.11) And the burden is on the party challenging the law to show it is not.
(Id. at p. 851.)
Boiser cannot meet that burden. “The degree of justification required
to satisfy equal protection depends on the type of unequal treatment at issue.
When a challenged statute involves a suspect classification such as race, or a
fundamental right such as the right to vote, courts will apply a heightened
scrutiny and will demand greater justification for the differential treatment.
[Citation.] Where the challenged statutes involve neither a suspect
classification nor a fundamental right, the ‘ “general rule is that legislation is
presumed to be valid and will be sustained if the classification drawn by the
statute is rationally related to a legitimate state interest.” ’ ” (People v.
Barner (2024) 100 Cal.App.5th 642, 663, citing People v. Hardin, supra, 15
Cal.5th at p. 847.) “Rational basis review ‘sets a high bar’ for litigants
challenging legislative enactments.” (Hardin, at p. 852.)
Though he does not squarely argue the point, by citing People v.
Edwards, supra, 34 Cal.App.5th 183, which applied rational basis review,
Boiser suggests that standard applies. Indeed, “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.” ’ ” ’ ” (People v. Barner, supra, 100 Cal.App.5th at p. 664
accord, People v. Williams, supra, 17 Cal.5th at p. 123 [rational basis review
applies to equal protection challenges based on disparate sentencing
treatment for comparable crimes].) “Under the rational basis standard,
11 Boiser did not file a reply brief on appeal so he had an opportunity to,
but did not, address People v. Hardin, supra, 15 Cal.5th 834.
19
‘ “equal protection of the law is denied only where there is no ‘rational
relationship between the disparity of treatment and some legitimate
governmental purpose.’ ” [Citation.] . . . To mount a successful rational
basis challenge, a party must “ ‘negative every conceivable basis’ ” that might
support the disputed statutory disparity. [Citations.] If a plausible basis
exists for the disparity, courts may not second-guess its “ ‘wisdom, fairness,
or logic.’ ” ’ ” (People v. Barner, at p. 664.; accord, People v. Hardin, supra, 15
Cal.5th at p. 852 [under rational basis deferential standard “we presume 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’ ”]; People v. Williams, supra, 17 Cal.5th at p. 124.)
In Barner, the Court of Appeal held the defendant had “not met his
burden to negate every conceivable basis for treating him, a recidivist
offender, differently from nonrecidivist offenders” in the context presented
there. (People v. Barner, supra, 100 Cal.App.5th at p. 664.) So it is here.
“Numerous courts have rejected equal protection challenges to the
differential treatment of [‘Three Strikes’ law] offenders, concluding that such
offenders are not similarly situated to nonrecidivist offenders and/or that a
rational basis exists to treat them differently. As one such court reasoned: ‘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.’ ”
20
(People v. Wilkes (2020) 46 Cal.App.5th 1159, 1165 [rejecting equal protection
challenge to section 3051, subdivision (h), making youth offenders sentenced
under the Three Strikes law ineligible for youth offender parole hearings].) A
Three Strikes offender “presents too great a risk of recidivism to allow the
possibility of early parole.” (See id. p. 1166; see also 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 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”].)
Because the Legislature had a rational basis for excluding recidivist
elderly offenders such as Boiser from the Elderly Parole Program, the
exclusion does not violate equal protection. The existence of a plausible basis
for such differential treatment prevents us from “second-guess[ing] whether
this decision was wise, fair, or logical.” (People v. Williams, supra, 17 Cal.5th
at p. 136.)
21
DISPOSITION
The judgment is affirmed.
O’ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
22