People v. Moore

Filed 9/20/21 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308386
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA043305)
v.
ORDER MODIFYING OPINION
GREGORY MOORE, [NO CHANGE IN JUDGMENT)
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on September 10,
2021, be modified as follows:
On page 2, first sentence under the heading Procedural
Background, the word “former” is added to the citation to Penal
Code section 12021, subdivision (a)(1), so the sentence reads as
follows:
In 1997, appellant was convicted following a jury trial of
one count of murder (§ 187, subd. (a); count 1), three counts of
possession of a firearm by a felon (former § 12021, subd. (a)(1);
counts 2, 5, & 10), two counts of second degree robbery (§ 211;
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counts 3 & 4), two counts of attempted willful, deliberate,
premeditated murder (§§ 664/187, subd. (a); counts 6 & 7),
and two counts of shooting at an inhabited dwelling (§ 246;
counts 8 & 9).
There is no change in the judgment.
CERTIFIED FOR PUBLICATION.
LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.
2
Filed 9/10/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308386
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA043305)
v.
GREGORY MOORE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. H. Clay Jacke II, Judge. Affirmed.
Wayne C. Tobin, 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, Noah P. Hill and Kathy S.
Pomerantz, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
1
Gregory Moore appeals from the order of the court denying
his petition for a youth offender evidence preservation proceeding
in accordance with People v. Franklin (2016) 63 Cal.4th 261(Franklin). Appellant also requests that the five-year prior
serious felony enhancement imposed under Penal Code 1 section
667, subdivision (a) be stricken.
PROCEDURAL 2 BACKGROUND
In 1997, appellant was convicted following a jury trial of
one count of murder (§ 187, subd. (a); count 1), three counts of
possession of a firearm by a felon (§ 12021, subd. (a)(1); counts 2,
5, & 10), two counts of second degree robbery (§ 211; counts 3 &
4), two counts of attempted willful, deliberate, premeditated
murder (§§ 664/187, subd. (a); counts 6 & 7), and two counts of
shooting at an inhabited dwelling (§ 246; counts 8 & 9).
Appellant was charged with and admitted one prior strike
conviction under the Three Strikes law. (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d).) The trial court sentenced appellant
under the Three Strikes law to an aggregate term of 107 years to
life in state prison.
On September 29, 2020, the trial court denied appellant’s
petition for a Franklin proceeding on the ground that appellant is
ineligible for a youth offender parole hearing under section 3051,
subdivision (h) because he was sentenced under the Three Strikes
law based on his prior strike conviction.
1 Undesignated statutory references are to the Penal Code.
2 Because this appeal raises no issues concerning the facts
of the underlying offenses, we omit a statement of facts. (See
People v. White (1997) 55 Cal.App.4th 914, 916, fn. 2.)
2
DISCUSSION
I. Section 3051, subdivision (h) Does Not Violate
Equal Protection
Appellant was 21 years old when he committed the offenses
in this case and contends that the exclusion of youth offenders
who were sentenced under the Three Strikes law from eligibility
for a youth offender parole hearing violates equal protection. We
disagree.
A. Youth offender parole hearings
With the enactment of section 3051 in 2013, the Legislature
declared its intent “to create a process by which growth and
maturity of youthful offenders can be assessed and a meaningful
opportunity for release established.” (Stats. 2013, ch. 312, § 1.)
To this end, section 3051 “establish[ed] a parole eligibility
mechanism that provides a person serving a sentence for crimes
that he or she committed as a juvenile the opportunity to obtain
release when he or she has shown that he or she has been
rehabilitated and gained maturity.” (Stats. 2013, ch. 312, § 1; see
In re Trejo (2017) 10 Cal.App.5th 972, 980–981.) Under section
3051, subdivisions (a) and (b), persons aged 25 years or younger
at the time of their controlling offenses 3 are eligible for a youth
offender parole hearing after serving 15, 20, or 25 years in prison,
depending on the sentence. (§ 3051, subds. (a)–(b); People v.
Wilkes (2020) 46 Cal.App.5th 1159, 1164 (Wilkes).) However,
section 3051, subdivision (h) specifically excludes from youth
offender parole consideration offenders such as appellant who
3 The “controlling offense” is “the offense or enhancement
for which any sentencing court imposed the longest term of
imprisonment.” (§ 3051, subd. (a)(2)(B).)
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were sentenced under the Three Strikes law. 4 (Ibid.) Appellant
maintains this disparate treatment of Three Strikes youth
offenders violates equal protection.
B. Equal protection jurisprudence
Under the Fourteenth Amendment to the United States
Constitution and article I, section 7 of the California Constitution
all persons are guaranteed equal protection under the law.
“ ‘ “ ‘The first prerequisite to a meritorious claim under the equal
protection clause is a showing that the state has adopted a
classification that affects two or more similarly situated groups in
an unequal manner.’ [Citations.] This initial inquiry is not
whether persons are similarly situated for all purposes, but
‘whether they are similarly situated for purposes of the law
challenged.’ ” [Citation.] In other words, we ask at the threshold
whether two classes that are different in some respects are
sufficiently similar with respect to the laws in question to require
the government to justify its differential treatment of these
classes under those laws.’ ” (People v. Foster (2019) 7 Cal.5th
1202, 1211–1212.) “ ‘Where a class of criminal defendants is
similarly situated to another class of defendants who are
4 Section 3051, subdivision (h) provides: “This section shall
not apply to cases in which sentencing occurs pursuant to Section
1170.12, subdivisions (b) to (i), inclusive, of Section 667, or
Section 667.61, or to cases in which an individual is sentenced to
life in prison without the possibility of parole for a controlling
offense that was committed after the person had attained 18
years of age. This section shall not apply to an individual to
whom this section would otherwise apply, but who, subsequent to
attaining 26 years of age, commits 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.”
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sentenced differently, courts look to determine whether there is a
rational basis for the difference.’ ” (Wilkes, supra, 46 Cal.App.5th
at p. 1165, quoting People v. Edwards (2019) 34 Cal.App.5th 183,
195 (Edwards); People v. Chatman (2018) 4 Cal.5th 277, 289
(Chatman).)
“A classification in a statute is presumed rational until the
challenger shows that no rational basis for the unequal treatment
is reasonably conceivable. [Citations.] The underlying rationale
for a statutory classification need not have been ‘ “ever actually
articulated” ’ by lawmakers, and it does not need to ‘ “be
empirically substantiated.” ’ [Citation.] Nor does the logic
behind a potential justification need to be persuasive or
sensible—rather than simply rational.” (Chatman, supra, 4
Cal.5th at p. 289.)
To successfully challenge a statute as violative of equal
protection under a rational basis standard, the party must negate
every conceivable basis for the disparate treatment. (Heller v.
Doe (1993) 509 U.S. 312, 320; Edwards, supra, 34 Cal.App.5th at
p. 195.) Indeed, a classification does not violate equal protection
if there is any rational relationship between the disparity of
treatment and some legitimate governmental purpose. (Heller, at
p. 320.) “If a plausible basis exists for the disparity, ‘[e]qual
protection analysis does not entitle the judiciary to second-guess
the wisdom, fairness, or logic of the law.’ ” (Edwards, at pp. 195–
196; Wilkes, supra, 46 Cal.App.5th at p. 1165; People v. Turnage
(2012) 55 Cal.4th 62, 74.)
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C. The exclusion of offenders sentenced under the Three
Strikes law from youth offender parole consideration is
rationally related to a legitimate penal interest
Appellant contends he is similarly situated to youth
offenders who were not sentenced under the Three Strikes law
and the differential treatment of youth offenders with prior
strikes and those without under section 3051, subdivision (h) is
not rationally related to any legitimate public interest. But even
assuming both groups of violent youthful offenders are similarly
situated for purposes of section 3051, we conclude the Legislature
could rationally determine that the youth offender with one or
more prior strikes“ ‘a recidivist who has engaged in significant
antisocial behavior and who has not benefited from the
intervention of the criminal justice system’ [citation]presents
too great a risk of recidivism to allow the possibility of early
parole,” thus justifying the disparate treatment. (Wilkes, supra,
46 Cal.App.5th at p. 1166, quoting People v. Cooper (1996) 43
Cal.App.4th 815, 829 (Cooper).)
Wilkes observed, “Numerous courts have rejected equal
protection challenges to the differential treatment of Three
Strikes offenders, concluding that such offenders are not
similarly situated to nonrecidivist offenders and/or that a
rational basis exists to treat them differently.” (Wilkes, supra, 46
Cal.App.5th at p. 1165.) Thus, as the court in Cooper 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.
He is the prototype of the repeat offender for whom the three
strikes legislation was drafted. It is reasonable for the
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Legislature to distinguish between those felons, like appellant,
who come to court with a history of serious or violent felony
convictions and those who do not. Such exercise of legislative
discretion cannot be defeated simply by the argument that at the
end of a mathematical process the offenders have committed an
equal number of serious and nonserious felonies. The Legislature
is entitled to treat recidivist felons of the type described in the
three strikes law more harshly than those recidivists who have
not yet qualified.” (Cooper, supra, 43 Cal.App.4th at p. 829; see
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, 1688 [“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”].)
Appellant relies on Edwards, supra, 34 Cal.App.5th 183 to
argue there is no rational basis to distinguish between a youth
offender whose immaturity, impulsiveness, and susceptibility to
peer pressure caused him to commit a crime earlier in his youth
that qualifies as a strike and the youth offender who, despite a
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long criminal record, has no prior strike convictions. In Edwards,
Division Four of the First District Court of Appeal held section
3051, subdivision (h) violated equal protection by categorically
excluding youth offenders sentenced under the “One Strike” law
(§ 667.61) from the early parole consideration available even to
youthful murderers. (Edwards, at p. 199.) Based on the
“consistent theme in constitutional jurisprudence” that
“ ‘ “[d]efendants who do not kill, intend to kill, or foresee that life
will be taken are categorically less deserving of the most serious
forms of punishment than are murderers,” ’ ” Edwards concluded:
“Because the Legislature made youthful-offender parole hearings
available even for first degree murderers (except those who
committed murder as an adult and received an LWOP sentence),
there is no rational basis for excluding One Strike defendants
from such hearings.” (Edwards, at pp. 196–197.)
We agree with Wilkes that Edwards is distinguishable. As
Wilkes explained, “ ‘The “One Strike” law is an alternative,
harsher sentencing scheme that applies to specified felony sex
offenses,’ such that ‘ “a first-time offense can result in one of two
heightened sentences.” ’ (Edwards, supra, 34 Cal.App.5th at
pp. 192, 193.) The distinguishing characteristic of Three Strikes
offenders, of course, is that they are not being sentenced for a
first-time offense. Thus, the ample authority rejecting equal
protection challenges from Three Strikes offenders did not apply
in Edwards. Indeed, Edwards itself took pains to ‘note that
criminal history plays no role in defining a One Strike crime’ and
that ‘[t]he problem in this case is’ the categorical exclusion of ‘an
entire class of youthful offenders convicted of a crime short of
homicide . . . , regardless of criminal history . . . .’ (Edwards, at
8
p. 199, italics added.)” (Wilkes, supra, 46 Cal.App.5th at
pp. 1166–1167.)
In sum, we conclude the differential treatment of youth
offenders sentenced under the Three Strikes law for purposes of
early parole consideration for youth offenders is rationally
related to the legitimate governmental purpose of addressing
recidivism and does not violate equal protection.
II. This Court Lacks Jurisdiction to Rule on
Appellant’s Claim that the Imposition of the
Five-year Enhancement Pursuant to Section
667, Subdivision (a) Resulted in an
Unauthorized Sentence
Wholly unrelated to the denial of his petition for a Franklin
proceeding, appellant also challenges his sentence on the ground
that the imposition of a five-year enhancement under section 667,
subdivision (a) was unauthorized and must be stricken because
the prosecution did not comply with the pleading and proof
requirements of section 1170.1, subdivision (e). 5 Appellant’s
claim, brought for the first time over 20 years after he was
sentenced in 1997, and not raised in the proceedings below, is not
subject to this court’s jurisdiction in an appeal from the denial of
a petition for a Franklin proceeding.
“As a general rule, a criminal defendant who fails to object
at trial to a purportedly erroneous ruling forfeits the right to
challenge that ruling on appeal.” (People v. Anderson (2020) 9
Cal.5th 946, 961.) But there is an exception to this rule for an
5 Section 1170.1, subdivision (e) provides that “[a]ll
enhancements shall be alleged in the accusatory pleading and
either admitted by the defendant in open court or found to be
true by the trier of fact.”
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unauthorized sentence, which may be challenged despite a final
judgment of conviction, even after affirmance on appeal. (In re
G.C. (2020) 8 Cal.5th 1119, 1130 (G.C.).) “The unauthorized
sentence doctrine is designed to provide relief from forfeiture for
‘obvious legal errors at sentencing that are correctable without
referring to factual findings in the record or remanding for
further findings.’ [Citation.] It applies when the trial court has
imposed a sentence that ‘could not lawfully be imposed under any
circumstance in the particular case.’ ” (Anderson, at p. 962; G.C.
at p. 1130.)
By permitting a defendant to challenge an unauthorized
sentence on appeal even in the absence of an objection below, the
unauthorized sentence rule constitutes a narrow exception to the
forfeiture doctrine (In re Sheena K. (2007) 40 Cal.4th 875, 886–
887), “ ‘not to the jurisdictional requirement of a timely notice of
appeal’ ” or other means of properly challenging the judgment of
conviction. (G.C., supra, 8 Cal.5th at p. 1129.) In order to invoke
the unauthorized sentence rule in the first instance, our Supreme
Court has held the reviewing court “must have jurisdiction over
the judgment.” (G.C. at p. 1130.)
In G.C., the juvenile court’s disposition order found the
minor had committed a so-called “wobbler” offense, but the court
failed to make the requisite declaration under Welfare and
Institutions Code section 702 that the offense was a misdemeanor
or a felony. (G.C., supra, 8 Cal.5th at p. 1122.) The question
before our Supreme Court was “whether G.C. may challenge the
[juvenile] court’s neglect of this mandatory duty in an appeal
from a later dispositional order after the time to appeal the
original disposition expired.” (Ibid.) The court held that because
there was no correlation between the Welfare and Institutions
10
Code section 702 error in the original disposition and the
judgment before the Court on Appeal, the appellate court lacked
jurisdiction to remedy the defect. (G.C. at p. 1130.)
So it is here. Not only is appellant attempting to challenge
his sentence more than 20 years after his judgment of conviction
became final, but he is doing so for the first time on appeal from
the denial of his request for a Franklin proceeding. A Franklin
proceeding, however, “is unrelated to the validity of the
defendant’s sentence. Neither the entitlement to a youth
offender parole hearing, nor the evidence preservation process
‘disturb[s] the finality of state convictions.’ ” (In re Cook (2019) 7
Cal.5th 439, 451.) By the same token, the trial court’s denial of
appellant’s petition for a Franklin proceeding and his appeal
from that denial did not confer jurisdiction on this court over the
judgment. The unauthorized sentence doctrine has no
application here, and we have no jurisdiction to consider
appellant’s challenge to his sentence in this appeal.
Moreover, even if we had jurisdiction to review appellant’s
claim, he has not presented a sufficient record on appeal to
permit consideration of the challenge to his sentence. In support
of his contention, appellant points to the omission of any
reference to the prior serious felony enhancement in the amended
information and the absence of an admission to the enhancement
by appellant or a true finding by the trier of fact in the record in
this appeal. But the record in this appealconsisting of the
amended information, minute orders from sentencing, the
abstract of judgment, and the transcript from the hearing on
appellant’s petition for a Franklin proceedingis woefully
inadequate for determining the merits of appellant’s claim. Of
course, “the defendant . . . bears the burden to provide a record on
11
appeal which affirmatively shows that there was error below, and
any uncertainty in the record must be resolved against the
defendant.” (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.)
Because appellant has failed to provide an adequate record for
review, his claim fails. (People v. Chubbuck (2019) 43
Cal.App.5th 1, 12.)
DISPOSITION
The postjudgment order is affirmed.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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