People v. Wilson CA2/1

Filed 3/1/23 P. v. Wilson CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B322501
Plaintiff and Respondent, (Riverside County
Super. Ct. No. INF1500163)
v.
KENNETH MICHAEL WILSON
et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Riverside
County, Johnnetta E. Anderson, Judge. Affirmed as modified
with directions (as to appellant Kenneth Michael Wilson);
conditionally reversed with directions (as to appellant Jesse
Keith Cottom).
Patricia Ihara, under appointment by the Court of Appeal,
for Defendant and Appellant Kenneth Michael Wilson.
Allen G. Weinberg, under appointment by the Court of
Appeal, for Defendant and Appellant Jesse Keith Cottom.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Charles C. Ragland, Assistant
Attorney General, A. Natasha Cortina, Annie Featherman Fraser
and Alan Amann, Deputy Attorneys General, for Plaintiff and
Respondent.
______________________
In January 2015, appellant Kenneth Michael Wilson, his
older brother Wayne Wilson, and appellant Jesse Keith Cottom1
planned to sell fake cocaine to an acquaintance. This ultimately
resulted in Jesse fatally shooting the acquaintance in the neck.
At the time of the incident, Jesse was 17 years old and Kenneth
was 20 years old. A jury convicted Kenneth and Jesse of felony
murder and attempted robbery.
We conditionally reverse the judgment against Jesse
pending the outcome of a new juvenile court transfer hearing
pursuant to newly amended but retroactive Welfare and
Institutions Code section 707, at which the juvenile court shall
determine whether he should be tried in adult criminal court.
We modify the judgment against Kenneth to require
a Penal Code section 30512 youth offender parole hearing in
Kenneth’s 25th year of incarceration, and further instruct the
court to gather evidence in anticipation of that hearing pursuant
to People v. Franklin (2016) 63 Cal.4th 261, 283 (Franklin).
We do so because we agree with Kenneth that section 3051,
1Because multiple individuals involved in this case have
the same surnames, we use first names. No disrespect is thereby
intended.
2Unless otherwise indicated, subsequent unspecified
statutory references are to the Penal Code.
2
subdivision (h) violates the equal protection clause to the extent
it denies youth offender parole hearings to those who committed
life-without-parole (LWOP) offenses while between the ages of
18 and 25 years but guarantees such hearings for 18- to 25-year-
olds who commit offenses that result in the functional equivalent
of LWOP. (See § 3051, subds. (b)(4) & (h).)
We reject the other constitutional challenges and
arguments of trial error raised by either Kenneth or Jesse.3
Specifically: (1) Jesse contends that the prosecutor engaged
in misconduct during her closing argument by impugning
the character and credibility of defense counsel; (2) Kenneth
contends that substantial evidence does not support that he
acted with the “reckless indifference to human life” necessary to
support the felony murder conviction against him4; (3) Kenneth
contends that the trial court reversibly erred in admitting
evidence of Kenneth’s involvement in a later, unrelated robbery
to prove intent to rob in the instant case; (4) Kenneth and Jesse
both challenge the statute under which they were sentenced
(§§ 190.2 & 190.5, respectively) as violating constitutional
prohibitions on cruel and unusual punishment; (5) Kenneth
challenges his LWOP sentence as cruel and unusual because
3 In the interest of judicial efficiency, because our reversal
of the judgment against Jesse is conditional and, depending on
the outcome of the juvenile court transfer hearing, the judgment
against Jesse may be reinstated, we address Jesse’s other
arguments on appeal.
4 Kenneth does not challenge that substantial evidence
supports he was a major participant in the robbery. (See § 189,
subd. (e)(3) [defining applicable version of first degree felony
murder as requiring both that the defendant “was a major
participant in the underlying felony and acted with reckless
indifference to human life”].)
3
it is disproportionate to his culpability for the murder; and
(6) Kenneth contends that section 190.5 violates the equal
protection clause. None of these arguments warrant relief
on appeal.
Lastly, we agree with the parties that the restitution
order must be modified, certain fees imposed on Jesse canceled,
and that Kenneth should receive presentence custody credits.
FACTS AND PROCEEDINGS BELOW
A. Background: Individuals and Witnesses
Involved
In 2019, the Riverside County District Attorney charged
Kenneth and Jesse with first degree felony murder and
attempted robbery. Both counts also alleged that Jesse
personally discharged a weapon causing death (§ 12022.53,
subd. (d)), and that Kenneth was a principal armed with a
firearm (§ 12022, subd. (a)(1)).
The events relevant to these charges involved a group
of adolescent males, comprised of then 20-year-old Kenneth,
Kenneth’s older brother Wayne, Kenneth’s neighbors Miguel
“Mike” Ramirez and his brother Lorenzo Ramirez, then 17-year-
old Jesse, and Jesse’s younger brother Justin Cottom. Around
the time of the crimes at issue (January 2015), this group
regularly gathered in the driveway of Mike and Lorenzo’s home
in La Quinta Cove, which was across the street from Kenneth
and Wayne’s home. There were surveillance cameras on Mike
and Lorenzo’s home.
Adrian Vivas and Bradley Olds also had been part of
this group at one point, and occasionally joined the others in
front of Mike’s house.
4
Dylan Sniffin, a friend of Adrian’s who lived outside
La Quinta Cove, was acquainted with Jesse and Mike from
juvenile hall. His cousin, Ryan Sniffin, is the victim of the
crimes at issue.
B. January 30, 2015 Fake Drug Deal
Around the end of January 2015, Ryan asked his cousin
Dylan if Dylan could connect Ryan with someone to buy an ounce
of cocaine. Dylan thought of Jesse, and Jesse and Ryan arranged
to meet on January 30.
At 5:22 p.m. that day, Jesse texted Ryan, “come around
6:30.” At 5:52 p.m., Jesse called Ryan, and at 5:59 p.m., Jesse
texted Ryan and arranged to meet at “51960 Ramirez” in
La Quinta Cove.
Around 6:19 p.m., Ryan drove his car to the agreed-upon
address, taking with him Dylan and Ryan’s roommate Noel
Reimers. Once there, Noel knocked on the door of the home,
which appeared to be vacant, but no one answered. She then
returned to the car and sat in the front passenger seat. Dylan
sat in the back seat. At 6:19 p.m., Ryan texted Jesse, “What’s up,
man?” At 6:22 p.m., Ryan called Jesse.
Surveillance footage shows Jesse standing in Mike and
Lorenzo’s driveway at 6:26 p.m. and Kenneth riding up to him on
a mountain bike, wearing a sweatshirt.5 At 6:27 p.m., both rode
their bikes down the driveway and in the direction of the crime
scene.
5 Although there was testimony that the time was
7:25 p.m., it is later described as being 6:28 p.m. Testimony
established that the time on the surveillance video was
57 minutes later than the actual time.
5
At 6:31 p.m., Ryan texted Jesse, “Hey, I got to get headed
up the hill.” Soon thereafter, Dylan saw three bike riders
wearing hooded sweatshirts ride past the car in which Dylan,
Ryan and Noel were sitting.
What happened over the course of the next few minutes—
the specific circumstances under which Jesse shot Ryan, and
what Kenneth was doing when this happened—was the subject
of conflicting testimony at trial, which we outline in more detail
in the following section.
By 6:38 p.m., Noel and Dylan called 911 on a cell phone,
and Dylan told the 911 operator that Jesse had shot Ryan.
A few minutes later, at 6:40 p.m., surveillance footage
shows someone running up Mike’s driveway. Moments later,
surveillance footage shows a person riding down the driveway
on a bicycle and to the north and the person who ran up the
driveway walking south. At 6:47 p.m., Mike appears in his
driveway. At 6:53 p.m., a female walks up the driveway. At
6:58 p.m., Mike walks south. At 7:21 p.m., a person walks,
then runs, south.
At the scene of the homicide, in the trunk of Ryan’s car,
the police found a jacket stained with what appeared to be blood.
A pocket contained a gray case holding six little baggies of white
powder. A test of the powder taken at the scene was negative for
methamphetamine or cocaine. Police also found $555 in cash on
the floorboards inside the car and a cigarette butt on the ground
by the driver’s door. The parties stipulated that forensic testing
of the cigarette butt detected male DNA that was not Kenneth’s.
Ryan died later that night from the gunshot wound.
6
C. Evidence at Trial Regarding Circumstances
of Ryan’s Death
The evidence presented at trial included testimony and
other evidence establishing the general sequence of events, which
we summarized above. It also included testimony presenting
conflicting accounts of what happened between the time Dylan
saw three individuals in hoodies approaching Ryan’s car and the
time Jesse shot Ryan.
1. Dylan’s Eyewitness Testimony Suggesting
Kenneth Was Not Near Jesse at the Time
of the Shooting
The only witness to the shooting who testified at trial was
Dylan, Ryan’s cousin, called by the prosecution. Dylan testified
that, after seeing the three individuals in hoodies drive past on
bikes, “one stayed at the top of the street . . . [then] two of them
rode down, and one rode back up, which was Jesse. And he rode
up to . . . the car.” The individual who rode back down did not
come to the car with Jesse, but instead waited behind a car at a
nearby intersection at the top of the street. Dylan described this
rider as being more heavy set than the others, and subsequently
identified him as Mike, whom Dylan knew from juvenile hall.
Dylan was not sure whether the third rider waited at the top of
the street or went elsewhere.
7
Dylan testified that Jesse, alone, rode his bike to the
driver’s side of the car. Ryan opened his door but stayed seated
inside. Dylan got out of the car and shook hands with Jesse.
Jesse “got to business” and handed Ryan two baggies of white
powder. Ryan opened one of the baggies, examined it, then gave
it back. He told Jesse, “ ‘Let me know if . . . you get some better
stuff.’ ” They said, “Later” and Ryan said, “Bye.”
Dylan got back in the car and Ryan closed his door as Jesse
rode his bike to the intersection. Jesse then got off his bike and
walked back to Ryan’s car with his hand in his sweatshirt pocket.
The car windows were open. Pulling a gun from his pocket, Jesse
told Ryan, “What’s up. Give me all your money,” and pointed the
gun at him. Jesse’s hand was shaking. When he touched Ryan’s
head and neck with the gun, Ryan pushed the gun away. Jesse
fired a shot into Ryan’s neck.
Jesse fled as Ryan screamed and lunged over Noel and
out the passenger side window. Dylan got out of the car and
ran trying to get help while Noel held Ryan.
About 10 to 15 minutes after the shooting, Dylan saw
Kenneth and another person drive by in a red car. Kenneth and
the other individual hung out the windows staring and giving
Dylan a “dirty look.”
8
2. Testimony Suggesting Kenneth Was Armed
and Near Jesse at the Time of the Shooting
a. Adrian’s testimony6
Adrian testified that around 10:00 a.m. the day Ryan was
shot, Jesse visited Adrian’s home, where they used drugs.7 Jesse
told Adrian that he and Kenneth were going to “do a lick” later
that night, which Adrian defined as “[a] fast way to get money or
something,” possibly by committing a robbery. Their plan was to
ride their bicycles to Ramirez and Durango streets and try to sell
two bags halfway full of baking soda or another white substance
as cocaine for $600 or $700. If they could not sell the fake
cocaine, they would just take the money. Jesse told him the
“lick” was Kenneth’s idea, and that Wayne and Kenneth helped
plan it. During this same visit, Kenneth showed Adrian a silver
.38 revolver.
Two days after Ryan’s death, Kenneth again visited
Adrian. Kenneth told Adrian that he and Jesse had ridden bikes
to Ramirez and tried to sell “these boys in their car” fake cocaine.
Adrian testified that Kenneth explained the “guy” had tested it
and gave it back saying, “ ‘What the hell is this?’ ” “[T]he guy”
then reached for something and both Kenneth and Jesse told
6 Adrian testified about things he claimed Jesse and
Kenneth had told him about the evening Ryan died. Adrian
testified that, after he found out that he was facing over 16 years
in prison for an armed robbery (unrelated to this case), he agreed
to testify about statements Jesse and Kenneth had made to him
over a year earlier, in exchange for which Adrian would serve no
actual jail or prison time for the armed robbery charges he was
facing.
7 Jesse’s brother and mother testified that Jesse was at
school that day.
9
him to stop. Jesse got nervous and shot the guy in “the head.”
When asked at trial whether Kenneth said anything to Adrian
“about whether [Kenneth] was there during the time of the lick,”
Adrian responded, “Yes. . . . [H]e said he was . . . there pointing—
pointing his gun [at Ryan]. A little—I can’t—I don’t know what
kind of gun it was. I—a TEC-9—but he said—he said he was
pointing the gun, too, right there on the side of [Jesse] and
watching everything that was happening.” Adrian later more
unequivocally testified that Kenneth told him that Kenneth “was
right there at the scene with Jesse . . . [¶] . . . [¶] . . .[and] that
[Kenneth] had his gun pointed, too, at the people.”
b. Bradley’s statements
The prosecution presented testimony regarding statements
Kenneth made to his neighbor and friend Bradley. Because
Bradley ultimately refused to testify,8 his statements were
testified to by police investigator Bruce Moore (the investigator),
and Bradley’s live-in girlfriend, Lea Martin.
i. The investigator’s testimony
relaying Bradley’s statements
The investigator testified at trial that Bradley told him the
following: Approximately two weeks after Ryan’s death, Kenneth
told him that he (Kenneth) had been involved in a homicide and
had smoked in the area of the crime scene, possibly leaving a
cigarette butt. Kenneth stated he was worried that he would
be going away for a long time because the cigarette butt might
contain his DNA. Kenneth also told Bradley that Kenneth felt
8The evidence presented at trial supported that Wayne
and Jesse had intimidated and threatened Bradley and that
Bradley feared retribution if he testified.
10
he had given Jesse the wrong gun, a .38, and wished he had given
Jesse a “TEC-9 or MAC-10 or Glock 19,” because if he had, “this”
would not have happened. Kenneth said that he was armed with
a MAC-10 when Jesse shot Ryan. Bradley had been to Kenneth’s
house and had seen a TEC-9, MAC-10, Glock 19, and shotguns.
Bradley and Kenneth were both using methamphetamine at
Bradley’s house when Kenneth made these statements to
Bradley.
ii. Lea’s testimony conveying Bradley’s
statements
Lea testified as follows regarding Bradley’s statements to
her: Early one morning in February 2015, she had found Bradley
“quite zoned [out]” and “completely terrified” in their garage.
Bradley stated to Lea that Kenneth had told him about “some
sort of drug deal gone wrong” and that Kenneth “was sitting next
to the kid when it had happened” and “after the initial death of
the kid, they had parted ways,” which she understood to mean
they walked off in different directions. Kenneth told Bradley he
was worried that he would be caught because he may have left a
cigarette butt behind at the crime scene.
c. Raul’s testimony
Raul Barazza testified that while he was in juvenile hall
with Jesse, Jesse told Raul that Jesse was in for murder because
he was “gonna do a lick.” “He was trying to rob somebody, but
then it went wrong[,] so he shot him.” Raul testified that Jesse
said, “They [the victims] wanted to buy some [cocaine], but I
guess the guy didn’t want to give them nothing; so he shot him.”
Raul further testified that Jesse said he had done the “lick” with
a “friend[ ],” and that the friend was “[b]ehind him” during the
“transaction.”
11
Raul admitted he had agreed to testify because the
prosecutor promised him a substantially reduced sentence in
connection with three counts of robbery unrelated to Jesse’s case.
He also was an informant in multiple other cases.
d. Jesse’s statements to his mother
The prosecutor played recorded jail calls Jesse made to his
mother on February 9, 2015. In one, Jesse states, “You know I
wish I never did this.” In another call recorded later that day,
Jesse’s mother asks him, “You’re saying there was Kenny near
you?” and Jesse answers, “Yeah.” She then asks, “And then how
did you separate from Kenny?”, to which Jesse responds, “Mom, I
can’t talk about it.”
3. Evidence Regarding Unrelated Subsequent
Robbery
Over Kenneth’s objection, the court admitted evidence of
Kenneth’s involvement in the robbery of Donald “Ian” Moore (the
Ian robbery) on the basis that it was relevant under Evidence
Code section 1101 to prove Kenneth’s intent to permanently
deprive Ryan of his property.
Ian testified that he invited Kenneth to his house to smoke
methamphetamine with him. At that time, Ian had been using
methamphetamine daily for two years. At Kenneth’s request, Ian
opened the garage door to let Wayne in.
Ian then heard banging from inside his house. He went
into his father’s room to investigate and saw Wayne in the closet.
Kenneth entered the room and told Ian not to fight, they just
wanted the money and the guns. Kenneth forced Ian to sit on the
bed and said, “ ‘Why shouldn’t I just kill you right now. You are
going to snitch.’ ” Wayne told Ian to put his face in a pillow and
not to look. Wayne and Kenneth broke a wall to remove a safe
12
from the closet, then took the safe, guns, a suitcase full of various
items, and Ian’s cell phone and left.
Additional details about the Ian robbery came through
Adrian’s testimony and the investigator’s testimony. Adrian
testified that Kenneth told him that he had robbed Ian. The
investigator testified that Bradley told him he lived across the
street from Ian’s house and had seen Kenneth in Ian’s garage
with a hatchet in his hand. Moments later, Bradley saw Kenneth
and Wayne run up the street with a safe in a trash can.
D. Jury Verdict
The jury found both defendants guilty as charged. For
the murder count, the court sentenced Jesse to 25-years-to-life
and Kenneth to life without the possibility of parole (LWOP).
Pursuant to section 654, the court stayed both defendants’
respective sentences for the attempted robbery counts and the
firearm enhancements.
The court ordered Kenneth to pay $1,794 in restitution, and
ordered Jesse to pay restitution in an amount to be determined.
The court awarded Jesse credit for 2,093 actual days spent in
presentence custody, but did not award Kenneth any presentence
custody credit.
Kenneth and Jesse each timely appealed.
DISCUSSION
A. Jesse’s Request for a New Juvenile Court
Transfer Hearing
Pursuant to the Public Safety and Rehabilitation Act
of 2016 (Proposition 57), effective January 1, 2018, prosecutors
may not charge juveniles directly in adult criminal court; they
must instead first commence an action in juvenile court, but
the juvenile court may transfer the case to adult criminal court
13
if the prosecutor makes the required showing. (See People v.
Garcia (2018) 30 Cal.App.5th 316, 323.) In order “[t]o justify
the transfer of a minor from juvenile court to the criminal court
system, the prosecution [is required to] establish[ ] . . . the minor
is not a suitable candidate for treatment under the juvenile court
system.” (J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 715;
Welf. & Inst. Code, § 707, subd. (a).) In 2017, when the juvenile
court transferred Jesse’s case to adult criminal court, the
prosecutor’s burden was by a preponderance of the evidence. (See
J.N. v. Superior Court, supra, at p. 715.) Effective January 2023,
however, Assembly Bill No. 2361, changed that standard of proof
and now requires “clear and convincing evidence that the minor
is not amenable to rehabilitation while under the jurisdiction of
the juvenile court.” (Stats 2022, ch. 330, § 1, approved Sept. 15,
2022, eff. Jan. 1, 2023.)
Citing In re Estrada (1965) 63 Cal.2d 740 (Estrada), Jesse
argues this new standard applies retroactively to him, as the
judgment against him is not yet final, and that we must therefore
conditionally reverse the judgment against him and instruct the
juvenile court to conduct a new juvenile court transfer hearing
under the law as revised by Assembly Bill No. 2361. We agree.
In Estrada, the California Supreme Court held that,
absent evidence of a contrary legislative intent, an amendment
to a statute that reduces the punishment for a crime applies
retroactively to any case in which the judgment is not final before
the amendment’s operative date. (Estrada, supra, 63 Cal.2d at
p. 742.) In People v. Superior Court (Lara) (2018) 4 Cal.5th 299,
the high court concluded that Estrada’s rationale applied to
Proposition 57. (Lara, supra, 4 Cal.5th at pp. 303−304.) The
court reasoned that although Proposition 57 did not reduce
punishment, it provided “[t]he possibility of being treated as
14
a juvenile in juvenile court—where rehabilitation is the goal—
rather than being tried and sentenced as an adult[, which] can
result in dramatically different and more lenient treatment.”
(Lara, supra, at p. 303.) It therefore “reduce[d] the possible
punishment for a class of persons, namely juveniles.” (Ibid.)
Thus, the court concluded that Proposition 57 “applies
[retroactively] to all juveniles charged directly in adult court
whose judgment was not final at the time it was enacted.”
(Lara, supra, 4 Cal.5th at p. 304.)
Estrada’s rationale similarly applies to Assembly Bill
No. 2361 and mandates retroactive application of the bill
to judgments not yet final when it went into effect. Like
Proposition 57, Assembly Bill No. 2361 does not reduce the
punishment for a crime, but does increase the likelihood of
a lesser punishment. Specifically, the bill heightens the
prosecution’s burden of proof when seeking to transfer a juvenile
defendant to adult court, thereby increasing the possibility he
or she will be tried before a juvenile court and, accordingly, also
increasing the likelihood that he or she will receive a lesser, more
rehabilitation-focused punishment than the juvenile defendant
would have received in adult criminal court. We therefore
conclude Assembly Bill No. 2361’s changes to Welfare and
Institutions Code section 707 apply retroactively to juveniles
transferred to adult court whose judgment was not yet final by
the time the new law went into effect on January 1, 2023. This
includes Jesse, because the judgment against him could not be
final until after that date.
If the juvenile court determines that transfer to adult
criminal court is appropriate under the new standard of proof,
the juvenile court shall transfer the matter back to adult criminal
court, where the judgment against Jesse shall be reinstated.
15
If, however, the juvenile court determines that transfer to adult
criminal court is not warranted, our conditional reversal shall
automatically cease to be conditional, and the juvenile court shall
conduct all further proceedings to adjudicate the charges against
Jesse.9
B. Jesse’s Prosecutorial Misconduct Claim
Jesse argues that, in her closing argument, the prosecutor
made “a prolonged set of disparaging remarks about what she
anticipated the defense would argue,” and that this constituted
prejudicial prosecutorial misconduct that denied Jesse a fair trial
and warrants reversal of his conviction.
Prosecutorial misconduct requires “ ‘ “ ‘the use of deceptive
or reprehensible methods to attempt to persuade either the court
or the jury.’ ” ’ ” (People v. Earp (1999) 20 Cal.4th 826, 858.)
Courts have recognized that personal attacks on the integrity
of trial counsel can constitute deceptive or reprehensible methods
of persuasion. (See People v. Shazier (2014) 60 Cal.4th 109, 150
[“ ‘ “[a] prosecutor commits misconduct if he or she attacks the
integrity of defense counsel, or casts aspersions on defense
counsel” ’ ”].) Jesse argues that the prosecutor’s closing argument
included a personal attack on the integrity of Jesse’s trial counsel
and was thus misconduct. We disagree.
Jesse bases his argument on the following portion of the
prosecutor’s closing argument: “The defense in this case. Smoke
9 Because, depending on the outcome of the juvenile court
transfer hearing, it is possible that the judgment against Jesse
will be reinstated, we address the remainder of the arguments he
raises on appeal. By doing so, we do not mean to imply any view
on the correct or likely outcome of the juvenile court transfer
hearing.
16
and mirrors. You are going to hear about drug users. You
are going to hear a whole bunch of names. And it is meant to
distract. Okay? Look at all of it. Do not automatically accept.
Do not automatically reject. You determine the credibility of
each witness. You determine the importance, the weight. Their
job is to minimize and confuse the true nature of the defendants’
conduct. Don’t lose sight of the totality of the evidence. All of it.
Look and consider and evaluate all of it. Don’t let the defense
confuse you. The witnesses are—for argument purposes in their
opinion—liars, drug users, and felons. Okay? But these liars,
drug users, felons—don’t forget about the jail calls. Don’t forget
about the surveillance, the text messages, the ballistic findings,
the scene. It is the totality of the testimony and the totality of
the circumstances.”
Neither Kenneth nor Jesse’s trial counsel objected to these
remarks.10 Rather, when Jesse’s trial counsel began his closing
argument, he immediately responded to the remarks by stating
to the jury, “Well, are you ready to be misled and confused with
smoke and mirrors? I hope—I am warning you; so be ready. Like
a magician.”
Closing argument “ ‘ “may be vigorous as long as it
amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom.” ’ ”
10 The Attorney General argues that Jesse has forfeited
his prosecutorial misconduct argument by failure to object below.
Jesse counters that we should consider his argument for the first
time on appeal, because of the fundamental nature of the right
at stake and, in the alternative, because his trial counsel’s failure
to object constitutes ineffective assistance of counsel. We exercise
our discretion to reach the merits of Jesse’s argument and thus
do not resolve the forfeiture or ineffective assistance issues.
17
(People v. Williams (1997) 16 Cal.4th 153, 221.) Indeed, attacks
on counsel’s credibility are improper in large part because they
“ ‘risk focusing the jury’s attention on irrelevant matters and
diverting the prosecution from its proper role of commenting
on the evidence and drawing reasonable inferences therefrom.’ ”
(People v. Winbush (2017) 2 Cal.5th 402, 484.) Taken in context,
the statements Jesse identifies are comments on the evidence
that suggest inferences the jury could draw therefrom.
Courts have reached similar conclusions when considering
similar comments. In People v. Cummings (1993) 4 Cal.4th
1233, for example, the California Supreme Court concluded
that argument in which the prosecutor “accused the defense of
attempting to hide the truth, and used [an] ‘ink from the octopus’
metaphor several times during closing argument, the context
was such that the jury certainly would understand it to be
nothing more than urging the jury not to be misled by defense
evidence.” (Id. at p. 1302.) Similarly, in People v. Marquez (1992)
1 Cal.4th 553, our state’s high court considered a prosecutor’s
comments that a “ ‘heavy, heavy smokescreen . . . has been laid
down [by the defense] to hide the truth from you,’ ” and concluded
these reflected proper argument in response to the defense
presented. (Id. at p. 575; see also, e.g., People v. Cunningham
(2001) 25 Cal.4th 926, 1002 [no reasonable likelihood the jury
was improperly influenced by prosecutor’s remarks that defense
counsel’s “job is to create straw men . . . to put up smoke, red
herrings” and that “[the prosecutor’s] job is to straighten that out
and show you where the truth lies”].)
As in these cases, the comments Jesse challenges would
be understood by a reasonable jury as commentary on the
evidence, rather than irrelevant personal insults. There was
no misconduct.
18
C. Substantial Evidence Supports That Kenneth
Acted with Reckless Indifference to Human
Life
Felony murder is a murder that “is committed in the
perpetration of, or attempt to perpetrate” one of enumerated
felonies, including robbery. (§ 189, subd. (a).) “A participant in
the perpetration or attempted perpetration of [such] a felony . . .
in which a death occurs is liable for murder only if ” the
prosecution also proves one of the following: “[t]he person was
the actual killer,” “[t]he person was not the actual killer, but,
with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in
the commission of murder in the first degree” or “[t]he person
was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.” (§ 189, subd. (e).) At trial, the prosecutor
proceeded on a theory that Kenneth was guilty of felony murder
because he was a major participant in an attempted felony
(robbery) who acted with reckless indifference to human life.
On appeal, Kenneth challenges only the finding that he acted
with reckless indifference to human life—not that he was a major
participant in the underlying attempted robbery.
Reckless indifference encompasses a willingness to assist
another in killing to achieve a particular goal, even if the victim’s
death was not specifically intended. (See People v. Clark (2016)
63 Cal.4th 522, 617 (Clark) [reckless indifference to human
life “encompasses a willingness to kill (or to assist another in
killing) to achieve a distinct aim, even if the defendant does
not specifically desire that death as the outcome of his actions”].)
“This definition encompasses both subjective and objective
elements. The subjective element is the defendant’s conscious
19
disregard of risks known to him or her. But recklessness is
not determined merely by reference to a defendant’s subjective
feeling that he or she is engaging in risky activities. Rather,
recklessness is also determined by an objective standard,
namely what ‘a law-abiding person would observe in the actor’s
situation.’ ” (Ibid.)
In Clark, supra, 63 Cal.4th 522, the California Supreme
Court identified circumstances that may be considered in
determining whether a non-shooter aider and abettor to a
felony acted with reckless indifference for human life. These
are: (1) the “defendant’s awareness that a gun will be used in
the felony,” the number of guns used, and/or the “defendant’s
use of a firearm, even if the defendant does not kill the victim”
(id. at p. 618, italics omitted), (2) the defendant’s “physical
presence at the crime and opportunities to restrain the crime
and/or aid the victim” (id. at p. 619, capitalization & italics
omitted), (3) the “duration of the felony” (id. at p. 620,
capitalization & italics omitted), (4) the “defendant’s knowledge
of [the] cohort’s likelihood of killing” (id. at p. 621, capitalization
& italics omitted), and (5) the “defendant’s efforts to minimize
the risks of the violence during the felony.” (Ibid., capitalization
& italics omitted); see id. at pp. 618−621 [adopting these factors
as initially set forth in People v. Banks (2015) 61 Cal.4th 788(Banks)].) “ ‘[Not] one of these considerations is necessary, nor
is any one of them necessarily sufficient.’ [Citation.]” (Clark,
supra, at p. 618.)
We review challenges to the sufficiency of the evidence for
substantial evidence, meaning we determine, based on the “entire
record[,] whether a reasonable trier of fact could have found that
the prosecution sustained its burden of proof beyond a reasonable
20
doubt[,] . . . consider[ing] the evidence in a light most favorable
to the judgment.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
Kenneth argues that Adrian’s testimony and Bradley’s
statements—the only evidence supporting that Kenneth was
present at the scene of the killing and in a position to facilitate
or prevent the actual murder (the proximity factor) and the only
evidence that Kenneth himself was armed—is not “reasonable,
credible, and of solid value” and thus cannot constitute part
of the substantial evidence supporting a finding of reckless
indifference. (People v. Kipp (2001) 26 Cal.4th 1100, 1128.)
To support this argument, he points to contrary testimony of
the only percipient witness (Dylan); Adrian and Bradley’s lack
of credibility as felons, drug users with impaired memories,
and/or jailhouse informants; inaccuracies in their statements;
inconsistencies in their statements over time; and an inherent
implausibility of their version of events.
Kenneth’s argument ignores the scope of our role in
reviewing for substantial evidence. “If there is conflicting
testimony, we must accept the [trier of fact’s] resolution of
disputed facts and inferences, . . . and the version of events
most favorable to the [judgment], to the extent the record
supports them.” (People v. Zamudio (2008) 43 Cal.4th 327,
342; Peradotto v. State Personnel Board (1972) 25 Cal.App.3d
30, 33 [substantial evidence review “ ‘begins and ends with a
determination as to whether there is any substantial evidence,
contradicted or uncontradicted, which supports the conclusion
reached, disregarding any evidence in the record contrary to
the trier’s finding’ ”].) Thus, inconsistencies between Dylan’s
testimony and Adrian’s testimony or Bradley’s statements are
not a basis on which we may reject the latter. Nor is anything
“so inherently implausible about [Adrian’s testimony and
21
Bradley’s statements] to justify disregarding [them] under
the substantial evidence rule.” (Fortman v. Hemco, Inc.
(1989) 211 Cal.App.3d 241, 254; see also People v. Shelmire
(2005) 130 Cal.App.4th 1044, 1059 [the court had “no doubt
that a defendant’s story (his version of the events in question)
constitutes substantial evidence, in and of itself, even if the story
is implausible and seriously contradicted by other evidence”].)
Likewise, we may not reject this evidence because Adrian and
Bradley each had a strong motive to lie. (See Evje v. City Title
Ins. Co. (1953) 120 Cal.App.2d 488, 492 [“testimony which is
subject to justifiable suspicion do[es] not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity
of the facts upon which a determination depends”]; see also
Evid. Code, § 780.) We thus consider Adrian’s and Bradley’s
statements as a source of evidence in assessing the sufficiency
of the evidence under the Clark factors.
As to the first Clark factor, “[a] defendant’s use of a
firearm, even if the defendant does not kill the victim . . . ,
can be significant to the analysis of reckless indifference to
human life.” (Clark, supra, 63 Cal.4th at p. 618.) Here, Adrian’s
testimony supports that Kenneth supplied the murder weapon
to Jesse, and the jury could reasonably infer that Kenneth gave
it to him loaded. Adrian, Lea, and the investigator’s testimony
also supports both that Kenneth was armed during the robbery
and a reasonable inference that Kenneth’s weapon was loaded.
Introducing loaded weapons into a robbery substantially
increases the risk that the robbery will end in lethal violence—
simply put, “[e]veryone knows the main purpose of a loaded
gun is to hurt people.” (People v. Douglas (2020) 56 Cal.App.5th
1, 10; see ibid. [use of a loaded gun and lack of efforts to mitigate
22
attendant risk of harm supported reckless indifferences, because
“[the defendant’s] plan was a gun plan. . . . He gave [a loaded
gun] to [the shooter] but made no effort to unload it or to caution
[the shooter] about restraining his conduct” or to otherwise plan
the crime in a manner to minimize the risk of harm].)
Another consideration is the proximity of the defendant
to the killing. (Clark, supra, 63 Cal.4th at p. 619.) A defendant’s
presence close to the shooting “ ‘gives him an opportunity to act
as a restraining influence on murderous cohorts. If the defendant
fails to act as a restraining influence, then the defendant is
arguably more at fault for the resulting murders.’ ” (Ibid.) Here,
the jury could reasonably infer from the testimony that Kenneth
was standing next to Jesse at the time of the shooting. The
record does not suggest that Kenneth made any effort to restrain
Jesse from returning to the car after Ryan refused the fake
drugs, or to restrain Jesse from shooting Ryan once Jesse had
returned to the car. Moreover, Kenneth’s proximity to Jesse—
particularly when combined with Kenneth being armed—also
increases the likelihood that Jesse might use potentially lethal
force to achieve the ends of the robbery. There is strength in
numbers; all else being equal, a man who knows he has an armed
compatriot beside him is more likely to feel emboldened to use
his weapon. A reasonable person in Kenneth’s position would
understand that his armed presence next to Jesse at the scene
could embolden Jesse to use his own gun, and thus increase the
likelihood of lethal violence beyond that inherent in any armed
robbery. As a corollary to proximity, courts also consider a
defendant’s efforts to assist the victim. Nothing in the record
suggests Kenneth attempted to assist Ryan after Jesse shot him.
We also consider whether a defendant attempts to
minimize the risks of violence during the robbery. (Clark,
23
supra, 63 Cal.4th at pp. 621–622.) Here, the evidence supports
that Kenneth helped plan the robbery at a location in front
of a vacant home after dark and using two guns—a plan that
increased, rather than reduced, the likelihood of lethal violence.
By contrast, in Clark, the defendant planned the robbery to
occur at a time when most of the employees would be gone,
the gun used in the robbery was supposed to be unloaded, and
the gun recovered after the shooting had only been loaded with
one bullet. (Ibid.) The record does not support that any similar
circumstances were present here.
Considering the record as a whole, we conclude that the
jury could reasonably infer that Kenneth acted with reckless
indifference to human life.
None of the cases Kenneth cites in which evidence of
reckless indifference was found insufficient involves a defendant
who was himself armed and in close proximity to the killing when
it occurred. (See People v. Bascomb (2020) 55 Cal.App.5th 1077,
1090 [“[t]he defendants who have shown their culpability was too
slight under Banks and Clark ‘are those who were not wielding
guns themselves and also not present for the shooting’ ”].) In
In re Scoggins (2020) 9 Cal.5th 667, for example, the defendant
“did not use a gun, nor did he know that a gun would be used
during the felony” (id. at p. 677) and he “did not arrive at the
crime scene until after the shooting occurred.” (Id. at p. 678.)
In In re Taylor (2019) 34 Cal.App.5th 543, the defendant was
waiting in the car during the planned robbery (id. at p. 559)
and “did not supply [the shooter] with the murder weapon[,]. . .
[n]or did [the defendant] have or use his own weapon during
the crime. Thus, . . . there [was] little about [the defendant’s]
use or knowledge of firearms that suggest[ed] he appreciated
the planned robbery posed a heightened risk of death.” (Id. at
24
pp. 557–558.) The other cases on which Kenneth relies are
similarly distinguishable. (See Banks, supra, 61 Cal.4th at
p. 805 [defendant was not armed, had no role in procuring arms
for others, and “[d]uring the robbery and murder, . . . was absent
from the scene, sitting in a car and waiting”]; Clark, supra, 63
Cal.4th at p. 619 [defendant not armed and was waiting across
the parking lot from the store where his cohort shot the victim];
In re Ramirez (2019) 32 Cal.App.5th 384, 404 [defendant was
not himself armed and “was not at the immediate location of
the killing”].)
Finally, Kenneth argues that his youth should be
considered in determining whether he acted with reckless
disregard for human life. He cites sentencing cases and statutes
that contain or imply “the observation that recklessness is one
of the distinctive attributes of youth.” But even a 20-year-old
can understand that two armed individuals attempting to trick
someone into buying fake drugs on a dark, empty street involves
a high risk of someone getting shot and killed. And the defense
did not present evidence suggesting that anything about Kenneth
at age 20 or his childhood rendered him generally less capable of
appreciating the risk of death in such a situation.11
11 To this extent, the recent decision of the First District
Court of Appeal considering the age of a young adult in
assessing reckless disregard for human life is distinguishable.
(See People v. Jones (2022) 86 Cal.App.5th 1076, 1091 [“the
record of conviction included a report provided by the defense
for the sentencing hearing pursuant to . . . Franklin[, supra,]
63 Cal.4th 261 . . . and section 3015 . . . assert[ing] that he had
a traumatic and violent upbringing, had suffered from under-
diagnosed mental health issues and drug abuse, witnessed
his first murder at age 10, had become numb to violence, was
25
D. Admission of Evidence Regarding the Ian
Robbery
Kenneth challenges the admission of evidence regarding
the Ian robbery, arguing that the court abused its discretion
in permitting the evidence. Specifically, he argues that the
evidence was not admissible under Evidence Code section 1101,
subdivision (b), which establishes an exception to the general rule
that character evidence is inadmissible to prove a defendant’s
conduct on a specific occasion, and that even if it was admissible
under that section, the court should have excluded it under
Evidence Code section 352. We need not decide whether he is
correct, because even if the court erred in admitting the evidence,
any such error was not prejudicial.
Kenneth first urges that the admission of this evidence
was so prejudicial, it denied him a fair trial, requiring reversal
unless the state “prove[s] beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.”
(Chapman v. California (1967) 386 U.S. 18, 24.) To establish
prejudice on this ground, the error must “ ‘render[ ] the trial so
arbitrary and fundamentally unfair that it violated federal due
process.’ ” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d
918, 920.) “[F]ailure to comply with the state’s rules of evidence
is [not] . . . a sufficient basis for” establishing such fundamental
unfairness. (Id. at p. 919.) Kenneth simply has not established
that the effects of the Ian robbery evidence permeated and
tainted the entire trial to such an extent that the trial was
vulnerable to increased aggression, and appeared to be impulsive
rather than criminally sophisticated”].) To the extent that case
stands for the proposition that being 20 years old is a factor that
inherently weighs against a finding of reckless indifference, we
disagree.
26
arbitrary and fundamentally unfair. Therefore, Chapman does
not provide the appropriate standard for our harmless error
analysis.
Rather, in assessing prejudice from any error in admitting
the Ian robbery evidence, we apply People v. Watson (1956) 46
Cal.2d 818, and consider whether it is reasonably probable that,
had the jury not heard the Ian robbery evidence, the jury would
have entered a verdict more favorable to Kenneth. (See id. at
p. 836.)
Kenneth takes the position that such a reasonable
likelihood exists, first arguing that “[t]his highly inflammatory
evidence would have obviated any concerns the juror[s] would
have had about Adrian’s compromised credibility as well as
the credibility of other witnesses,” namely Raul and Bradley.
Kenneth impeached the credibility of these individuals at trial
based on their being felons, drug addicts, and/or themselves
criminal defendants with a self-serving motive to provide
helpful testimony to the prosecution. But the fact that Kenneth
committed felonies and used drugs as set forth in the Ian
robbery evidence cannot rehabilitate a witness following such
impeachment; indeed, such evidence has no logical bearing on
the credibility of the prosecution’s witnesses at all. And Kenneth
did not offer testimony contradicting Adrian’s, Bradley’s, or
Raul’s respective versions of events, so Kenneth’s credibility
relative to that of others is not at issue.
Kenneth also contends that admission of this evidence
was prejudicial in that it “allowed the jurors to prejudge Kenneth
and conclude that, because of his criminal propensity and bad
character, he had to have committed the felony[ ]murder, even
though Adrian and Bradley’s credibility was doubtful and their
statements were inconsistent, unreliable, and too convenient for
27
the prosecution.” But the jury was instructed “not [to] consider
[the Ian robbery evidence] for any other purpose except for the
limited purpose of intent to deprive the owner of the property
permanently” and “not [to] conclude from this evidence that the
defendant has a bad character or is disposed to commit a crime.”
“When, as here, there are no indications to the contrary, we
assume that the jurors followed the trial court’s instructions” and
did not, based solely on their viewing Kenneth as a generally bad
person who commits crimes, find him guilty of murder without
supporting evidence. (People v. Leonard (2007) 40 Cal.4th 1370,
1413.)
In arguing to the contrary, Kenneth describes the
prosecution’s murder case against Kenneth as weak, a
description based primarily on his characterization of
Adrian, Bradley, and Raul as unreliable witnesses. Kenneth’s
efforts to find inconsistencies in these witnesses’ statements
notwithstanding, many aspects of their statements were either
uncontradicted or corroborated by other evidence, such that any
credibility concerns have a more limited effect on the strength
of the prosecution’s case. Still, Adrian’s, Bradley’s, and Raul’s
respective statements do conflict with other evidence on two key
points: Kenneth’s proximity to Jesse at the time of the shooting
and Kenneth’s use of a firearm, both of which are crucial to
the reckless indifference analysis. But this conflicting evidence
does not assist Kenneth in establishing prejudice from the
admission of the Ian robbery evidence. First, even assuming
the jury ignored the limiting instruction and inferred Kenneth
had a general propensity to commit crimes, a general criminal
propensity does not make it more likely that one will participate
in a crime in a specific way—namely, by using a gun, or by
brandishing a gun himself during a shooting, which by all
28
accounts, was unplanned. Second, the Ian robbery evidence
does not support more specific propensity inferences, such as
a propensity to use firearms. The Ian robbery did not involve
firearms. It is thus not reasonably likely that the Ian robbery
evidence caused the jury to make improper propensity inferences
that allowed them to more easily believe the key testimony from
the witnesses Kenneth identifies. Thus, even assuming the court
incorrectly admitted the Ian robbery evidence under Evidence
Code section 1101 and/or Evidence Code section 352, Kenneth
has not established Watson prejudice from any such error.
E. Constitutional Arguments
Kenneth raises several constitutional challenges to
the statutes under which he was sentenced (§§ 190.2, 190.5),
the statute deeming him ineligible for a youth offender parole
hearing (§ 3051), and the imposition of a LWOP sentence in his
case.12 Jesse also challenges section 190.5 as imposing cruel
and unusual punishment.
1. Kenneth’s Equal Protection Arguments
As a preliminary matter, Kenneth’s equal protection
arguments distinguish between those who committed crimes
while under 18 years, and those who committed crimes between
the ages of 18 and 25 years, a period during which, according to
relatively recent neurological research Kenneth cites, the brain
is still developing, in particular the portions responsible for
12 The state argues that Kenneth has forfeited his
constitutional arguments by failing to raise them below. We
exercise our discretion to consider Kenneth’s equal protection
argument and, based on the outcome of that analysis, need not
reach his cruel and unusual punishment arguments.
29
“ ‘executive functions’ ” like foreseeing and weighing potential
consequences and moderating “ ‘correct’ ” and risk-taking
behavior. For ease of reference, we shall refer to those under
18 years as “juveniles” and to those between the ages of 18 and
26 years as “young adults.”
Kenneth first challenges the constitutionality of the
sections under which he was sentenced to LWOP (§§ 190.2,
190.5), arguing that their “retention of mandatory LWOPs
for [young adult] offenders [who commit special circumstances
murder] . . . deprives such offenders of equal protection.” He
also challenges section 3051, the statute addressing eligibility
for a youth offender parole hearing (a challenge we discuss
below), as violating constitutional equal protection guarantees.
“ ‘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.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th 228,
253, italics omitted.) “Where a class of criminal defendants
is similarly situated to another class of defendants who are
sentenced differently, courts look to determine whether there is
a rational basis for the difference. [Citation.] ‘[E]qual protection
of the law is denied only where there is no “rational relationship
between the disparity of treatment and some legitimate
governmental purpose.” ’ [Citation.]” (People v. Edwards (2019)
34 Cal.App.5th 183, 195−196 (Edwards).)
30
a. Sentencing statutes
Taken together, sections 190.2 and 190.5 create a
mandatory LWOP sentence for those who commit first degree
special circumstances murder as a young adult, but not for
those who commit the offense as juveniles. (See §§ 190.2,
subd. (a), 190.5, subd. (b).) Kenneth argues that there is
no constitutionally justifiable basis for the law to distinguish
these two similarly situated groups because, based on the
scientific research Kenneth cites, both groups “ ‘have a
diminished culpability and greater prospects for reform.’ ”
The Supreme Court has “held on multiple occasions
that a sentencing rule permissible for adults may not be so for
children.” (Miller v. Alabama (2012) 567 U.S. 460, 481 (Miller).)
Courts of Appeal have rejected equal protection challenges to
the disparate treatment of young adult LWOP offenders and
juvenile LWOP offenders under other laws, concluding that,
even if these two groups are similarly situated, such disparate
treatment is constitutionally justifiable. (See People v. Sands
(2021) 70 Cal.App.5th 193, 204 (Sands), review den. Dec. 22,
2021, S271797 [addressing equal protection challenge to
section 3051]; In re Jones (2019) 42 Cal.App.5th 477, 481
(Jones) [addressing equal protection challenge to section 1170,
subdivision (d), which entitles certain offenders convicted
of crimes they committed as juveniles to submit a petition for
resentencing].) We find this same reasoning persuasive here.
In drafting section 190.5, the Legislature had a rational basis
for distinguishing between offenders who commit the same crime
“based on their age. For juvenile offenders, [an LWOP] sentence
may violate the Eighth Amendment. (Graham v. Florida [(2010)
560 U.S. 48, 75 (Graham)]; Miller, supra, 567 U.S. at p. 479.)
But the same sentence does not violate the Eighth Amendment
31
when imposed on an adult, even an adult under the age of 26.
([People v.] Morales [(2021)] 67 Cal.App.5th [326,] 347.) . . . [T]he
Legislature could rationally decide to remedy unconstitutional
sentences but go no further,” and thus could rationally choose
to exempt only juveniles, not young adults, from an otherwise
mandatory LWOP sentence. (Sands, supra, 70 Cal.App.5th
at p. 204, review den.) Moreover, the Legislature could have
reasonably concluded that punishing adults—young or not—
more harshly than legal children (juveniles) engaging in the
same conduct was best for the public good, any neurological
similarities between the two types of offenders notwithstanding.
“[A] line must be drawn somewhere[ ] [citation] . . . [citations] . . .
[t]he Legislature could reasonably decide that for those convicted
of LWOP crimes, the line should be drawn at age 18, rather
than at some later date when the brain is fully developed.”
(Jones, supra, 42 Cal.App.5th at pp. 482−483.) “Drawing a bright
line at age 18 establishes an objective and easily implemented
measure, which has been used by the United States Supreme
Court for sentencing purposes. While a different line could have
been drawn, it is not entirely arbitrary to limit” section 190.5’s
exception to mandatory LWOP sentencing to those who
committed first degree special circumstances murder before
they were 18 years old. (Jones, supra, at p. 483.)
b. Youth offender parole hearing
statute
We next consider Kenneth’s equal protection challenges
to the youth offender parole hearing statute, section 3051.
Section 3051 requires that an offender convicted of a crime
he or she committed before the age of 26 receive a “youth offender
32
parole hearing” after a certain period of incarceration.13 (§ 3051,
subd. (b).) The requirement for such a hearing does not apply,
however, to, inter alia, “cases in which an individual is sentenced
to [LWOP] for a controlling offense that was committed after the
person had attained 18 years of age,” as here. (§ 3051, subd. (h).)
At such a hearing, the reviewing board is to “give great
weight to . . . the hallmark features of youth, and any subsequent
growth and increased maturity of the prisoner.” (§ 4801,
subd. (c); see Franklin, supra, 63 Cal.4th at p. 283.) Such
hearings are intended “ ‘to give youthful offenders “a meaningful
opportunity to obtain release” after [a certain amount of time]
in prison (§ 3051, subd. (e)) and . . . “ ‘a showing of rehabilitation
and maturity’ ” ’ and ‘to account for neuroscience research that
the human brain—especially those portions responsible for
judgment and decisionmaking—continues to develop into a
person’s mid-20s.’ [Citation].” (People v. Wilkes (2020) 46
Cal.App.5th 1159, 1166.)
Kenneth challenges the constitutionality of section 3051
in two ways. First, he argues it guarantees juveniles who commit
LWOP offenses an opportunity to obtain release on parole, but
denies such an opportunity to young adults who commit LWOP
offenses. This argument fails for the same reasons Kenneth’s
challenge to the sentencing statutes fails: even assuming the
two groups he identifies are similarly situated, the Legislature
is constitutionally justified in treating them differently. (See,
e.g., People v. Hardin (2022) 84 Cal.App.5th 273, 285 (Hardin),
13 An earlier version of section 3051 only required youth
offender parole hearings for juveniles. In 2018, the Legislature
amended it to provide this benefit to young adults under certain
circumstances, as outlined above.
33
review granted Jan. 11, 2023, S277487 [“[d]istinguishing between
juvenile and young adult offenders sentenced to life without
parole does not violate equal protection,” italics omitted].)
Kenneth’s second argument is more persuasive: It is a
violation of equal protection for section 3051 to deny a youth
offender parole hearing for defendants convicted of LWOP
offenses they committed as young adults, but grant such a
hearing to an offender of the same age who receives a de facto
LWOP sentence—that is, one comprised of sentences for
multiple non-LWOP crimes that result in a required period
of incarceration that is longer than the offender’s natural life.
(See People v. Caballero (2012) 55 Cal.4th 262, 271−272 (conc.
opn. of Werdegar, J.) [“the purported distinction [proposed by
the Attorney General] between a single sentence of life without
parole and one of component parts adding up to 110 years to life
is unpersuasive”].)
We must first consider whether the two groups identified
“are properly distinguishable for purposes of the law being
challenged, even if they are dissimilar for other (or even most)
purposes.” (Hardin, supra, 84 Cal.App.5th at p. 287, review
granted.) There is disagreement among various Courts of Appeal
as to whether the young adult LWOP offenders and young adults
convicted of de facto life sentences are similarly situated for
the purposes of section 3051. (Compare, e.g., People v. Acosta
(2021) 60 Cal.App.5th 769, 779 (Acosta) [similarly situated]
and People v. Jackson (2021) 61 Cal.App.5th 189, 199 [not
similarly situated].) Based upon our analysis of the purpose
of section 3051 as set forth below, we agree with those courts
concluding that these two groups are similarly situated for
purposes of section 3051.
34
“ ‘[T]he purpose of section 3051 is not to measure the
extent of punishment warranted by the offense the individual
committed but to permit the evaluation of whether, after years
of growth in prison, that person has attained the maturity to
lead a law-abiding life outside of prison.’ ” (Acosta, supra, 60
Cal.App.5th at p. 779; accord, Hardin, supra, 84 Cal.App.5th
at p. 287, review granted [“Section 3051 is decidedly not a
sentencing statute. . . . [I]ts purpose [is] not to assess culpability
or measure the appropriate level of punishment for various
crimes.”].) Section 3501 seeks “to account for neuroscience
research that the human brain—especially those portions
responsible for judgment and decisionmaking—continues
to develop into a person’s mid-20’s” (Edwards, supra, 34
Cal.App.5th at p. 198) and to provide an opportunity to consider
“ ‘youthful offenders’ greater potential for rehabilitation and
maturation.’ ” (Sands, supra, 70 Cal.App.5th at p. 203, review
den.)
“Viewed in light of section 3051’s intended purpose of
permitting a determination whether a person who committed
a serious or violent crime [as a juvenile or young adult] has
sufficiently matured and outgrown the youthful impulses that
led to the commission of the offense,” young adults who commit
multiple crimes resulting in a de facto life sentence are similarly
situated to young adults who commit a single crime mandating
an LWOP sentence. (Hardin, supra, 84 Cal.App.5th at p. 287,
review granted [“an individual serving a parole-eligible life
sentence and a person who committed an offense at the same age
serving a sentence of [LWOP] are similarly situated”]; see also
In re Woods (2021) 62 Cal.App.5th 740, 752–753, review granted
June 16, 2021, S268740 (Woods) [young adult one-strike sex
offenders similarly situated to young adult murderers for the
35
purposes of section 3051].) Young adults who have been deemed
to have approximately the same level of culpability for their
crimes, as measured by the de facto length of their sentences14
“are similarly situated for the purpose of evaluating whether they
have outgrown the youthful impulses that led to the commission
of their offenses.” (Jones, supra, 42 Cal.App.5th at p. 486 (conc.
opn. of Pollak, P. J.).) “The legal and scientific foundations
supporting the rationale that youths have diminished culpability,
such as a youth’s ‘ “lack of maturity and an underdeveloped sense
of responsibility” ’ (Roper v. Simmons (2005) 543 U.S. 551, 569
[(Roper)]), and the goal of calibrating punishment accordingly
apply to both the youthful [offender convicted of an LWOP
crime] and the youthful . . . offender [convicted of multiple
crimes resulting in a de facto life sentence]. The corollary
principle that the increased maturity that comes with age
will reduce the likelihood of repeat offenses also applies to both
groups of offenders. The related goal of motivating imprisoned
youthful offenders to rehabilitate also applies equally to both
categories of youthful offenders.” (Woods, supra, at pp. 752−753.)
“[O]ne could say that both groups committed their crimes before
their prefrontal cortexes reached their full functional capacity,
when their characters were not yet fully formed. Both groups
14 Indeed, this court has previously concluded that young
adults committing crimes with potentially different levels of
culpability (as measured by the length of the sentence) may
nevertheless be similarly situated for the purposes section 3051,
given its focus on age-based capacity for change over time and
the generally reduced culpability of young adults. (See Woods,
supra, 62 Cal.App.5th at pp. 752–753 [young adult one-strike
sex offenders similarly situated to young adult murders]; accord,
Edwards, supra, 34 Cal.App.5th at pp. 195−196.)
36
are equally likely to demonstrate improved judgment and
decisionmaking as they reach emotional and cognitive maturity.”
(In re Williams (2020) 57 Cal.App.5th 427, 435.) For all these
reasons, we conclude they are similarly situated for the purposes
of section 3051.
Even among those courts concluding the two groups are
similarly situated for the purposes of section 3051, there is at
least some disagreement as to whether there is a constitutionally
justifiable basis for granting a youth offender parole hearing
to the members of one of these groups, but not the other.
(Compare Hardin, supra, 84 Cal.App.5th at p. 288, review
granted, and In re Williams, supra, 57 Cal.App.5th at p. 435;
Sands, supra, 70 Cal.App.5th at p. 204, review den.) We agree
with the recent decision of Division Seven, in Hardin, concluding
that no such constitutionally justifiable basis exists. (Hardin,
supra, at p. 288.)
The decisions reaching the opposite conclusion have
typically done so citing as a rational basis for disparate
treatment the disparate severity of the crimes leading to
LWOP and non-LWOP sentences. (See, e.g., In re Williams,
supra, 57 Cal.App.5th at p. 436; Acosta, supra, 60 Cal.App.5th
at p. 780; Sands, supra, 70 Cal.App.5th at p. 205, review den.)
We find this reasoning unpersuasive for the explanation
articulated in Hardin. “The crime of a 20-year-old offender who
shot and killed his victim while attempting to commit robbery
and was sentenced to [LWOP] (see § 190.2, subd. (a)(17)(A))
cannot rationally be considered more severe than those of a
20[-]year[-]old who shot and killed his victim one day, committed
a robbery the next, and was sentenced to an indeterminate term
of 50 years to life (see §§ 190, subd. (a), 12022.53, subd. (d)), or
who committed multiple violent crimes . . . and received a parole-
37
eligible indeterminate life term that far exceeded his or her life
expectancy. By defining the youth parole eligible date in terms
of a single ‘controlling offense,’ rather than by the offender’s
aggregate sentence, the Legislature has eschewed any attempt
to assess the offenders’ overall culpability, let alone his or
her amenability to growth and maturity.” (Hardin, supra,
84 Cal.App.5th at p. 289, fn. omitted, review granted.) “The
nature of their crimes does not provide any indication either
perpetrator can properly be deemed at the time of sentencing to
be ‘irreparably corrupt, beyond redemption, and thus unfit ever
to reenter society,’ as the Supreme Court in People v. Gutierrez
(2014) 58 Cal.4th 1354, 1391 [(Gutierrez)], described the implied
finding and necessary consequence of a life without parole
sentence.” (Hardin, supra, at p. 288.)
For these reasons, we agree with Kenneth that
section 3051, subdivision (h) violates the equal protection
clause in that there is no constitutionally justifiable basis for
denying him, as a young adult convicted of LWOP-eligible first
degree special circumstances murder, a youth offender parole
hearing, whereas other similarly situated young adults are
entitled to receive one. Kenneth is therefore entitled to a youth
offender parole hearing in the 25th year of his incarceration,
the latest point at which an offender to whom the statute applies
may receive such a hearing, and the point at which juveniles
who commit LWOP offenses are eligible for such a hearing. (See
§ 3051, subd. (b)(4).)
38
2. Cruel and Unusual Punishment
Arguments
a. Applicable legal principles
The cruel and unusual punishments clause of the Eighth
Amendment is directed, in part, “ ‘ “against all punishments
which by their excessive length or severity are greatly
disproportioned to the offenses charged.” ’ ” (Enmund v. Florida
(1982) 458 U.S. 782, 788.) The California Constitution likewise
prohibits “[c]ruel or unusual punishment.” (Cal. Const., art. I,
§ 17.)
The United States Supreme Court has held that imposing
the death penalty on defendants for crimes they committed
as juveniles violates the Eighth Amendment ban on cruel and
unusual punishment. (Roper, supra, 543 U.S. at pp. 568−575.)
The high court has also concluded an LWOP sentence is
akin to the death penalty for an offender that committed the
underlying crime as a juvenile. (Miller, supra, 567 U.S. at
p. 475.) Therefore, in Miller, the United States Supreme Court
held that an LWOP sentence for such juvenile offenders likewise
constitutes cruel and unusual punishment. (Id. at pp. 476−477.)
The Court’s reasoning in this line of cases focuses in part on
scientific research regarding the “fundamental differences
between juvenile and adult minds” (Graham, supra, 560 U.S. at
p. 68) and how the juvenile brain is still developing, as a result
of which juveniles are “more capable of change than are adults.”
(Ibid., citing Roper, supra, 543 U.S. at p. 570.)
b. Jesse’s cruel and unusual
punishment argument
Section 190.5, subdivision (b) provides that a defendant
who was “under the age of 18 years at the time of the commission
39
of [special circumstances first degree murder], shall be
confinement in the state prison for life without the possibility
of parole or, at the discretion of the court, 25 years to life.”
(§ 190.5, subd. (b).) Jesse challenges section 190.5 as imposing
cruel and unusual punishment in that it permits LWOP for
defendants who were juveniles when they committed their
crimes.
In Gutierrez, our Supreme Court found “no constitutional
infirmity” in section 190.5 (Gutierrez, supra, 58 Cal.4th at
p. 1361), construing it to give the court the discretion “to sentence
a 16- or 17-year-old juvenile convicted of special circumstance
murder to life without parole or to 25 years to life, with no
presumption in favor of [LWOP].” (Id. at p. 1360.) Moreover,
after the enactment of the youth offender parole hearing statute
(§ 3051), in practical terms, there is no such thing as LWOP
for a defendant who committed a crime as a juvenile, because
section 3051 “effectively reforms the parole eligibility date of a
juvenile offender’s original sentence so that the longest possible
term of incarceration before parole eligibility is 25 years.”
(Franklin, supra, 63 Cal.4th at p. 281; People v. Lozano (2017) 16
Cal.App.5th 1286, 1292 (Lozano) [“[t]he Legislature has made the
determination in [enacting section 3051] that” California juvenile
homicide offenders will not “face a sentence that possibly runs
afoul of the Eighth Amendment as interpreted in Miller”].)
Jesse acknowledges that this forecloses his constitutional
challenge to section 190.5, but argues that his right to a
section 3051’s youth offender parole hearing may be taken away
at any time by the Legislature or electorate, so his parole hearing
is not guaranteed. Such an argument is speculative and fails.
(See Lozano, supra, 16 Cal.App.5th at pp. 1290, 1292 [dismissing
40
appeal as moot because section 3051 provides a parole hearing,
so defendant is no longer subject to an LWOP sentence].)
c. Kenneth’s cruel and unusual
punishment arguments
We need not address Kenneth’s arguments that a sentence
of LWOP for a crime committed while the offender was a young
adult constitutes categorical cruel and unusual punishment
and/or that his LWOP sentence constitutes such constitutionally
prohibited punishment because it is grossly disproportionate
to the crime committed. Because Kenneth is entitled to a youth
offender parole hearing in his 25th year of incarceration, he
is effectively no longer sentenced to LWOP, and his challenges
to such a sentence are therefore moot. (See Lozano, supra,
16 Cal.App.5th at pp. 1288−1289.)
F. Kenneth’s Custody Credits
We agree with both Kenneth and the Attorney General that
Kenneth is entitled to presentence custody credits for the 1,340
days he spent in custody between his arrest and his sentencing.
Section 2900.5 provides that a defendant is entitled to have
the time he spends in custody before he is sentenced credited
toward his term of imprisonment. Such credit is distinct from
credits an inmate may receive for good conduct or participation
in certain rehabilitation or work programs while in custody. (See
§§ 2933.05, 4019.) Section 2933.2, subdivision (a) precludes a
person convicted of murder from accruing worktime and conduct
credit between arrest and conviction but does not preclude such
a person from receiving custody credits accrued during this time.
(People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
The court did not award Kenneth any credit for the
1,340 days he spent in custody between his arrest and his
41
conviction. “A sentence that fails to award legally mandated
custody credit is unauthorized and may be corrected whenever
discovered.” (People v. Taylor, supra, 119 Cal.App.4th at p. 647.)
Accordingly, the court is instructed on remand to award Kenneth
1,340 days of presentence custody credit.
G. Issues Related to Fees and Fines
1. Jesse’s Probation Report and Booking Fees
The trial court imposed on Jesse a presentence probation
report fee, up to $1,095, pursuant to section 1203.1b, and
a booking fee of $514.58, pursuant to Government Code
section 29550. Pursuant to recently enacted Assembly Bill
No. 1869 (2019−2020 Reg. Sess.), those fees should be stricken.
2. Joint and Several Liability for Restitution
Order
The court ordered Kenneth to pay $594 to reimburse the
California Victim Compensation Board and $1,200 for Ryan’s
burial expenses. The court must order restitution in an amount
sufficient to reimburse the victim “for every determined economic
loss incurred as the result of the defendant’s criminal conduct.”
(§ 1202.4, subd. (f)(3).) A trial court has authority to make
the restitution obligation joint and several. (See, e.g., People v.
Neely (2009) 176 Cal.App.4th 787, 800.) Because the goal of the
victim restitution statute is “that a victim of crime who incurs
an economic loss as a result of the commission of a crime shall
receive restitution directly from a defendant convicted of that
crime” (§ 1202.4, subd. (a)(1)), we agree with both Kenneth and
the Attorney General that the victim in this case is entitled to
collect restitution from all those convicted of Ryan’s murder.
42
DISPOSITION
The judgment against Jesse Cottom is conditionally
reversed. The matter is remanded to the juvenile court to
conduct a juvenile court transfer hearing regarding the charges
against Jesse Cottom, consistent with Welfare and Institutions
Code section 707, as amended by Assembly Bill No. 2361.
If the juvenile court determines that transferring Jesse
Cottom’s case to adult criminal court is not warranted, our
conditional reversal shall automatically cease to be conditional,
and the juvenile court shall conduct all further proceedings to
adjudicate the charges against him.
If, however, the juvenile court determines that trying
Jesse Cottom in adult criminal court is appropriate, the juvenile
court shall transfer the matter back to adult criminal court, at
which point: (1) our conditional reversal is no longer in effect,
(2) the judgment against Jesse Cottom is modified to strike the
probation and booking fees and add that Jesse Cottom is jointly
and severally liable with Kenneth Wilson for the restitution
Kenneth Wilson was ordered to pay, (3) the judgment, as so
modified, is affirmed, and (4) the criminal court is instructed
to amend the abstract of judgment in accordance with this
disposition, and to forward a certified copy of the amended
abstract of judgment to the Department of Corrections and
Rehabilitation.
Kenneth Wilson’s convictions are affirmed, but the court
shall modify the judgment against him in the following ways:
(1) to add that Kenneth Wilson is entitled to a Penal Code
section 3051 parole hearing in the 25th year of his incarceration,
(2) to modify the order of restitution to be joint and several with
any other defendant convicted of the murder of Ryan Sniffin,
and (3) to grant Kenneth Wilson 1,340 days of custody credit.
43
As so modified, the judgment against Kenneth Wilson is affirmed.
In addition, the criminal court is instructed to hold a hearing
pursuant to Franklin, supra, 63 Cal.4th 261, to issue a judgment
reflecting the modifications here required, to amend the abstract
of judgment in accordance with this disposition, and to forward
a certified copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
I concur:
CHANEY, J.
44
WEINGART, J., Concurring and Dissenting.
I join in the court’s opinion except for that portion striking
down Penal Code section 3051, subdivision (h)1 on equal
protection grounds because it denies a youth offender parole
hearing to those sentenced to life in prison without the possibility
of parole (LWOP) for a controlling offense committed between the
ages of 18 and 25.
Defendant Kenneth Wilson2 was convicted of first degree
felony murder committed during an attempted robbery, during
which he was also armed with a firearm. The penalty identified
by the Legislature for such a murder involving special
circumstances is more severe—death or LWOP—than most other
types of murder. (E.g., compare § 190.2, subd. (a) with § 190.)
Capital punishment is “limited to those offenders who commit ‘a
narrow category of the most serious crimes’ and whose extreme
culpability makes them ‘the most deserving of execution.’ ”
(Roper v. Simmons (2005) 543 U.S. 551, 568 [125 S.Ct. 1183, 161
L.Ed.2d 1].) After capital punishment, LWOP “is ‘the second
most severe penalty permitted by law.’ [Citation.]” (Graham v.
Florida (2010) 560 U.S. 48, 69 [130 S.Ct. 2011, 176 L.Ed.2d 825].)
A meritorious equal protection claim first must
demonstrate that the state has adopted a classification that
affects two or more similarly situated groups in an unequal
manner. (People v. Morales (2016) 63 Cal.4th 399, 408.) In the
1 All unspecified statutory references are to the Penal Code.
2As with the majority opinion, because multiple
individuals involved in this case have the same surnames, I use
Kenneth’s name. No disrespect is intended.
equal protection context, similarly situated “means that the
compared groups are ‘ “similarly situated for purposes of the law
challenged.” ’ [Citation.]” (In re C.B. (2018) 6 Cal.5th 118, 134.)
Section 3051 is a Penal Code statute, and generally persons
convicted of different crimes are not similarly situated for equal
protection purposes. (E.g., In re Williams (2020) 57 Cal.App.5th
427, 435; People v. Descano (2016) 245 Cal.App.4th 175, 181;
People v. Pecci (1999) 72 Cal.App.4th 1500, 1503.) That seems to
me particularly true when the controlling offense at issue here
results in either capital punishment or LWOP, sentences that in
their severity share characteristics “that are shared by no other
sentences.” (Graham v. Florida, supra, 560 U.S. at p. 69.)
Following People v. Hardin (2022) 84 Cal.App.5th 273(Hardin), review granted January 11, 2023, S277487, and the
majority opinion in In re Woods (2021) 62 Cal.App.5th 740,
review granted June 16, 2021, S268740, the majority cabins the
purpose of section 3051 to “permitting a determination whether a
person who committed a serious or violent crime [as a young
adult] has sufficiently matured and outgrown the youthful
impulses that led to the commission of the offense.” (Hardin,
supra, at p. 287.) If section 3051 can be so confined, then it
follows that all young adult offenders are similarly situated
regardless of their controlling offense—whether they committed
an offense expressly excluded from relief under section 3051,
subdivision (h) like a special circumstance murder, a third strike,
or a sex crime in violation of section 667.61, or instead committed
a much less serious offense. That is because the only thing that
matters in the eyes of the majority is whether the defendant has
matured since his or her crime was committed, and everyone
ages.
2
I question, however, if that fairly reads the entire statutory
purpose. Section 3051 does not solely provide a means to
determine if individuals have matured. It also distinguishes
between the types of offenses eligible for a youthful offender
parole hearing (§ 3051, subd. (h)), and parses how many years of
incarceration must be served before a hearing is held for those
who are eligible based on the severity of their controlling offense
(§ 3051, subd. (b)(1)-(3)), which suggests the Legislature had an
additional purpose of “calibrat[ing] sentences in accordance with
youthful offenders’ diminished capability.” (In re Williams,
supra, 57 Cal.App.5th at p. 435.) The Penal Code is rife with
such distinctions. Punishments vary from crime to crime,
including the length of time one must serve before becoming
eligible for parole, or whether there is even the possibility of
parole. “A criminal defendant has no vested interest ‘ “in a
specific term of imprisonment or in the designation a particular
crime receives.” ’ [Citation.] It is both the prerogative and the
duty of the Legislature to define degrees of culpability and
punishment, and to distinguish between crimes in this regard.
[Citation.] Courts routinely decline to intrude upon the ‘broad
discretion’ such policy judgments entail.” (People v. Turnage
(2012) 55 Cal.4th 62, 74.) Because in my view the type of
controlling offense does matter and defendants convicted of
crimes excluded from the reach of section 3051 are not similarly
situated to other youthful offenders, Kenneth’s equal protection
argument fails.
Even if one assumes Kenneth is similarly situated to other
young adult offenders eligible for relief under section 3051, I fail
to see how section 3051, subdivision (h) flunks the rational basis
test. That test is a deferential one. Section 3051’s disparate
3
treatment of arguably similarly situated individuals “satisfies the
rational basis test if there is any reasonably conceivable state of
facts that could provide a rational basis for distinguishing one
group from another. [Citations.] ‘Could provide’ is the operative
phrase; so long as a plausible reason exists for the classification,
our inquiry under the rational basis test comes to an end.
[Citation.] The reason need only be plausible and need not be
supported by evidence or empirical data. [Citations.] ‘Moreover,
because we never require a legislature to articulate its reasons
for enacting a statute, it is entirely irrelevant for constitutional
purposes whether the conceived reason for the challenged
distinction actually motivated the legislature.’ [Citation.] ‘The
burden of demonstrating the invalidity of a legislative
classification [enactment] under the rational basis standard rests
squarely upon the party who assails it [citation], who must
negate every “reasonably conceivable state of facts that could
provide a rational basis for the classification.” [Citation.]’
[Citations.]” (Chorn v. Workers’ Comp. Appeals Bd. (2016) 245
Cal.App.4th 1370, 1390-1391.)
Keeping this very low bar in mind, in my view it is
plausible the Legislature decided that certain crimes—including
as applicable here one resulting in an LWOP sentence—are
sufficiently egregious and morally depraved that an early parole
hearing is unjustified even if the offender was between 18 and 25
years of age at the time of the controlling offense. Hardin and
the majority brush this point aside with regard to an LWOP
sentence controlling offense by comparing various other offenses
and resulting hypothetical sentences to conclude the Legislature
must have “eschewed any attempt to assess the offenders’ overall
culpability” when enacting section 3501. (Hardin, supra, 84
4
Cal.App.5th at p. 289, review granted.) But for purposes of the
rational basis test, it does not matter whether the Legislature did
or did not attempt to assess overall culpability in crafting section
3051, as opposed to deciding to single out particular types of
heinous offenses (as applicable here, special circumstance
murder) as ineligible for relief. Instead, section 3051 survives
constitutional scrutiny as long as there is “any reasonably
conceivable state of facts that could provide a rational basis for
distinguishing one group from another.” (Chorn v. Workers’
Comp. Appeals Bd., supra, 245 Cal.App.4th at p. 1390.)
Hardin inexplicably concludes the Legislature’s “deliberate
and focused choice” to exclude an LWOP controlling offense is
somehow a bug rather than a feature of section 3051. (Hardin,
supra, 84 Cal.App.5th at p. 290, review granted.) But keeping
the standard of review in mind, it is not irrational for the
Legislature to determine that someone who commits such a
particularly heinous form of murder punished by the most severe
sanctions available is ineligible for relief under section 3051, even
if other serious offenses resulting in functionally equivalent
prison terms are eligible. It is reasonably conceivable the
Legislature decided (even if that decision was unsupported by
evidence or empirical data) that youthful offenders like Kenneth
who are convicted of first degree murder with special
circumstances committed an offense sufficiently abominable (and
at an age of more maturity than someone under 18) that LWOP
should mean LWOP, and/or that such defendants pose a greater
danger to society than other offenders such that they should not
be released on parole.
Nor does it matter that the Legislature used an admittedly
imperfect or even arguably flawed yardstick when distinguishing
5
who is eligible for a youth offender parole hearing. “[C]ourts are
compelled under rational-basis review to accept a legislature’s
generalizations even when there is an imperfect fit between
means and ends.” (Heller v. Doe (1993) 509 U.S. 312, 321 [113
S.Ct. 2637, 125 L.Ed.2d 257].) A classification does not fail
rational-basis review “ ‘ “because in practice it results in some
inequality” ’ ” as “ ‘[t]he problems of government are practical
ones and may justify, if they do not require, rough
accommodations—illogical, it may be, and unscientific.’
[Citation.]” (Ibid.) One could certainly categorize offenses by
aggregate sentences or underlying conduct or any number of
other criteria that Hardin and the majority here might deem
more fair or appropriate. Or one could simply conclude everyone
who commits any type of offense between the ages of 18 and 25
gets a youthful parole hearing no matter what, which is what
Hardin seems to suggest. But the Legislature was entitled to
paint with a broad brush rather than the different strokes that
Hardin suggests, even if that results in over and under inclusive
outcomes. “Equal protection analysis does not entitle the
judiciary to second-guess the wisdom, fairness, or logic of” the
exclusion in section 3051, subdivision (h) applicable in this case.
(People v. Turnage, supra, 55 Cal.4th at p. 74.)
As illustrated by Hardin, concerns with the practical
application of section 3051 in certain individual cases are
undeniably real, but “we cannot insert our own policy concerns
into the analysis.” (People v. Acosta (2021) 60 Cal.App.5th 769,
781.) Prior opinions have called these concerns to the
Legislature’s attention and urged it to act. (E.g., ibid.; People v.
Montelongo (2020) 55 Cal.App.5th 1016, 1039 (conc. opn. of Segal,
J.); In re Jones (2019) 42 Cal.App.5th 477, 486-487 (conc. opn. of
6
Pollak, P. J.).) So far, it has declined to do so. On the other
hand, at least one justice has suggested such advocacy is
unnecessary to analyzing section 3051’s constitutionality. (See In
re Williams, supra, 57 Cal.App.5th at pp. 439-440 (conc. opn. of
Baker, J.).) No matter how one answers that question, one thing
the rational basis test does not empower us to do is redraft the
statute to provide eligibility for a parole hearing our elected
representatives expressly declined to afford to persons in
Kenneth’s position.
I therefore respectfully dissent from the court’s decision to
strike down as unconstitutional section 3051, subdivision (h)’s
exclusion of Kenneth’s controlling offense from relief under that
statute.
WEINGART, J.
7