In re Woods

Filed 4/2/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re B301891
ANDRE LAMONT WOODS, (Los Angeles County
Super. Ct. No. NA037804)
On Habeas Corpus.
ORIGINAL PROCEEDING; petition for writ of habeas
corpus, Judith L. Meyer, Judge. Petition granted.
________________________________
Jennifer Peabody, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Philip J. Lindsay,
Assistant Attorney General, Julie A. Malone and Jennifer O. Cano,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________________
In 1999, a trial court sentenced Andre Lamont Woods to a
term of 25 years to life under the “One Strike” law (Pen. Code,1
§ 667.61) plus a term of 57 years 4 months. Woods was 19 years old
when he committed his crimes. On October 31, 2019, he filed a
habeas corpus petition in this court in which he asserted that
his sentence violates the Eighth Amendment proscription against
cruel and unusual punishment. After we denied the petition, the
Supreme Court granted Woods’s petition for review and transferred
the matter to us with directions to issue an order to show cause
(OSC) why Woods should not be entitled to relief on the grounds
that the failure to provide him with a youth offender parole hearing
violates his federal constitutional rights to equal protection of the
laws and his right to be free from cruel and unusual punishment.
We vacated our prior order, issued an OSC, and appointed
counsel for Woods. The People filed a return to the OSC, and
Woods filed a reply.
We agree with Woods that section 3051, subdivision (h),
which excludes One Strike offenders from the procedures for youth
offender parole hearings, violates his right to equal protection of the
laws because such procedures are generally available to similarly
situated offenders and no rational basis exists to deny them to
One Strike offenders. He is therefore entitled to a youth offender
parole hearing during his 25th year of incarceration. This
determination renders moot Woods’s argument that his sentence
violates the Eighth Amendment’s proscription against cruel and
unusual punishment.
1 Unless otherwise specified, subsequent statutory references
are to the Penal Code.
2
FACTUAL SUMMARY AND PROCEDURAL HISTORY
On the night of August 14, 1998, Woods was a passenger
in a public transit bus driven by S.H. It appeared to S.H.
that Woods was under the influence of alcohol. After all other
passengers had left the bus, Woods told S.H. to pull the bus over
and “shut it down.” He said he had a knife and would kill her. S.H.
pulled the bus to the side of the street and turned off the engine,
causing the bus’s lights to turn off. Woods directed S.H. to the back
of the bus where he raped her, forced her to orally copulate him
several times, robbed her of jewelry and money, raped her again,
bit her breasts, and orally copulated her. When S.H. cried, Woods
slapped her head. When S.H. asked if she could get dressed, Woods
threw her underwear out a window. Woods made S.H. go to the
front of the bus where he directed her to tell him how to start the
bus. As he sat in the driver’s seat with S.H. standing next to him,
he put his fingers in her vagina, then forced his fingers into S.H.’s
mouth. He threatened to kill S.H. if she reported the incident to the
police. Woods began driving the bus and promptly crashed it into
a building. The crash shattered glass on the bus, which cut S.H.’s
back. S.H. escaped through a rear door on the bus.
Woods admitted to a police detective that he forced S.H.
to engage in multiple sex acts with him and robbed her. At the
detective’s suggestion, Woods wrote a note in which he apologized
to S.H. for “forc[ing] [her] to have sexual intercourse with [him].”
3
At trial, Woods’s defense was that the distance he forced S.H.
to move did not satisfy the asportation requirements for kidnapping
or the One Strike law. (§ 667.61, subd. (d)(2).)2
A jury convicted Woods of one count of kidnapping to
commit rape (count 1; § 209, subd. (b)(1)), two counts of forcible
rape (counts 2 & 8; § 261, subd. (a)(2)), five counts of forcible oral
copulation (counts 3, 4, 6, 7 & 9; former § 288a, subd. (c)),3 and
one count each of forcible sexual penetration with a foreign object
(count 10; former § 289, subd. (a)), first degree robbery (count 5;
§ 211), making terrorist threats (count 11; former § 422), and
unlawful taking or driving a vehicle (count 12; Veh. Code, former
§ 10851, subd. (a)). In connection with counts 2 through 4 and
counts 6 through 10, the jury found true an allegation under the
One Strike law that Woods kidnapped the victim and his movement
of the victim substantially increased the risk of harm to her “over
and above that level of risk necessarily inherent in the underlying
offense.” (§ 667.61, subd. (d)(2).)
2 The One Strike law does not define any crime, but rather
“ ‘sets forth an alternative and harsher sentencing scheme for
certain enumerated sex crimes’ when a defendant commits one
of those crimes under specified circumstances.” (People v. Acosta
(2002) 29 Cal.4th 105, 118.) Forcible rape, for example, is a crime
enumerated within the One Strike law (§ 667.61, subd. (c)(1))
and is punishable under that law by imprisonment for 25 years to
life when it is committed under specified circumstances (§ 667.61,
subd. (a)), including the kidnapping of the victim where “the
movement of the victim substantially increased the risk of harm to
the victim over and above that level of risk necessarily inherent in
the [rape]” (§ 667.61, subd. (d)(2)).
3
Effective January 1, 2019, former section 288a was
renumbered as section 287. (Stats. 2018, ch. 423, § 49, p. 3215.)
4
At the sentencing hearing, Woods requested the court
impose the low terms because he lacked a “serious record.” The
court rejected the request, stating that “the defendant exhibited a
baseness and cruelty of human nature that is one of the worst [the
court has] heard about. The aggravating circumstances in this case
are so numerous, they far outweigh the fact that the defendant does
not have a prior record.”
Pursuant to the One Strike law, the trial court imposed
a sentence of 25 years to life for the conviction on count 2,
plus full-term consecutive sentences of eight years on each of
counts 3and 4 and counts 6 through 9. (See former §§ 667.61,
subds. (a) & (g), former 667.6, subd. (c).) Under the determinate
sentencing law, the court imposed a six-year term on count 5
(§ 213, subd. (a)(1)(B)), plus a consecutive two-year sentence
on count 10 (§ 289, subd. (a)(1)(A)), and consecutive eight-month
sentences on counts 11 and 12 (§§ 18, former 422, 1170.1, subd. (a);
Veh. Code, § 10851, subd. (a)). Lastly, the court imposed and stayed
a life sentence with the possibility of parole on count 1 (§ 209,
subd. (b)(1)). The total prison term is 82 years 4 months to life.
In February 2000, we affirmed the judgment with directions
to correct a sentencing error, which did not affect the length of
the total term, and to correct certain misstatements in the abstract
of judgment. (People v. Woods (Feb. 16, 2000, B130961) [nonpub.
opn.].)
In 2019, Woods petitioned the superior court to hold an
evidence preservation proceeding pursuant to People v. Franklin
(2016) 63 Cal.4th 261 (Franklin). On July 24, 2019, the court
denied the petition on the ground that Woods does not qualify
for a Franklin proceeding because he was sentenced under the
One Strike law. Woods attempted to file a notice of appeal from
5
the court’s ruling, but the superior court declined to file it, and
no further action was taken. Woods thereafter filed the instant
petition for writ of habeas corpus.
DISCUSSION
Woods contends that his sentence of 82 years 4 months
is unconstitutional under the Eighth Amendment and that his
statutory ineligibility for a youth offender parole hearing under
section 3051 violates his right to equal protection. We agree with
his equal protection argument and conclude that he is entitled to a
youth offender parole hearing during his 25th year of incarceration.
As a result, his Eighth Amendment argument is moot.
A. Background
In Graham v. Florida (2010) 560 U.S. 48 (Graham), the
United States Supreme Court held that the Eighth Amendment’s
proscription against cruel and unusual punishment prohibits the
sentence of life without parole (LWOP) for a juvenile offender who
did not commit homicide. (Graham, supra, at p. 74.) “As compared
to adults,” the court explained, “juveniles have a ‘ “lack of maturity
and an underdeveloped sense of responsibility” ’; they ‘are more
vulnerable or susceptible to negative influences and outside
pressures, including peer pressure’; and their characters are ‘not as
well formed.’ [Citation.]” (Id. at p. 68.) Juveniles are also “more
capable of change than are adults, and their actions are less likely
to be evidence of ‘irretrievably depraved character’ than are the
actions of adults.” (Ibid.) Juveniles thus “have lessened culpability
[and] are less deserving of the most severe punishments.” (Ibid.)
The court further explained that sentencing juveniles to LWOP—
“ ‘the second most severe penalty permitted by law’ ” (id. at p. 69)—
cannot be justified based on legitimate penological goals of
6
retribution, deterrence, incapacitation, and rehabilitation. (Id.
at pp. 69–71.)4
The high court emphasized that although “the Eighth
Amendment prohibits a [s]tate from imposing [an LWOP] sentence
on a juvenile nonhomicide offender, it does not require the [s]tate
to release that offender during his natural life. Those who
commit truly horrifying crimes as juveniles may turn out to be
irredeemable, and thus deserving of incarceration for the duration
of their lives. The Eighth Amendment does not foreclose the
possibility that persons convicted of nonhomicide crimes committed
before adulthood will remain behind bars for life. It does prohibit
[s]tates from making the judgment at the outset that those
offenders never will be fit to reenter society.” (Graham, supra, 560
U.S. at p. 75.) States must therefore provide juveniles who commit
nonhomicide crimes “some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.” (Ibid.)
In People v. Caballero (2012) 55 Cal.4th 262 (Caballero),
our Supreme Court extended Graham to sentences that are the
functional equivalent of LWOP: “[S]entencing a juvenile offender
for a nonhomicide offense to a term of years with a parole eligibility
date that falls outside the juvenile offender’s natural life expectancy
4 As our state Supreme Court recently stated, Graham was
one of a series of United States Supreme Court and California
Supreme Court decisions that reflect “ ‘a sea change in penology
regarding the relative culpability and rehabilitation possibilities
for juvenile offenders.’ ” (O.G. v. Superior Court (2021) 11 Cal.5th
82, 88.) This sea change is the result of “developments in scientific
research on adolescent brain development confirming that children
are different from adults in ways that are critical to identifying age-
appropriate sentences.” (Ibid.)
7
constitutes cruel and unusual punishment in violation of the
Eighth Amendment.” (Caballero, supra, at p. 268.) The court
directed sentencing courts to “consider all mitigating circumstances
attendant in the juvenile’s crime and life, including but not limited
to his or her chronological age at the time of the crime, whether the
juvenile offender was a direct perpetrator or an aider and abettor,
and his or her physical and mental development, so that it can
impose a time when the juvenile offender will be able to seek parole
from the parole board. The Board of Parole Hearings will then
determine whether the juvenile offender must be released from
prison ‘based on demonstrated maturity and rehabilitation.’
[Citation.]” (Id. at pp. 268–269.)
In a footnote, the Caballero court “urge[d] the Legislature
to enact legislation establishing a parole eligibility mechanism
that provides a defendant serving a de facto life sentence without
possibility of parole for nonhomicide crimes that he or she
committed as a juvenile with the opportunity to obtain release
on a showing of rehabilitation and maturity.” (Caballero, supra,
55 Cal.4th at p. 269, fn. 5.)
The Legislature responded the following year by enacting
section 3051 and amending sections 3041 and 4801. (Stats. 2013,
ch. 312, §§ 4, 5, pp. 2524–2525.) Section 3051 provides for a “youth
offender parole hearing” for eligible persons after they have been
incarcerated for 15, 20, or 25 years, depending upon the term of the
offender’s “controlling offense.” (§ 3051, subds. (a) & (b).)5 Indeed,
the Legislature “went a step further” than what Graham or
5 A controlling offense is “the offense or enhancement
for which any sentencing court imposed the longest term of
imprisonment.” (§ 3051, subd. (a)(2)(B).)
8
Caballero required by including “homicide defendants” within the
statute’s reach. (People v. Edwards (2019) 34 Cal.App.5th 183, 194
(Edwards).) Section 4801, subdivision (c) was added to require the
parole board to “give great weight to the diminished culpability of
youth as compared to adults, the hallmark features of youth, and
any subsequent growth and increased maturity of the prisoner in
accordance with relevant case law.” (§ 4801, subd. (c).) By ensuring
that those eligible for youth offender parole hearings “will have a
meaningful opportunity for release no more than 25 years into their
incarceration” (Franklin, supra, 63 Cal.4th at p. 277), section 3051
made it unnecessary for courts “to decide Eighth Amendment
challenges to sentences of 25 years or more for a broad range of
juvenile homicide and nonhomicide offenses” (People v. Contreras
(2018) 4 Cal.5th 349, 381 (Contreras)).
As originally enacted, section 3051 made youth offender
parole hearings available for persons who committed their
controlling offense before age 18 years. (Stats. 2013, ch. 312,
§ 5, p. 2525.) In 2015, the Legislature amended the age threshold
to 23 years (Stats. 2015, ch. 471, § 2, p. 4176) and, in 2017,
increased it to 25 years (Stats. 2017, ch. 684, § 2.5, pp. 5125–5126).
Section 3051 now defines persons eligible for youth offender parole
hearings to include any “person who was convicted of a controlling
offense that was committed when the person was 25 years of age or
younger and for which the sentence is a . . . term of 25 years to life.”
(§ 3051, subd. (b)(3).) Woods’s controlling offense is forcible rape
under count 2, for which he was sentenced to 25 years to life.
Section 3051 expressly excludes, however, “cases in which
sentencing occurs pursuant to [the “Three Strikes” law or the
One Strike law, and] in which an individual is sentenced to [LWOP]
for a controlling offense that was committed after the person had
9
attained 18 years of age.” (§ 3051, subd. (h).) Because Woods
was sentenced pursuant to the One Strike law, he is statutorily
ineligible for a youth offender parole hearing.
B. Equal Protection
Woods claims that section 3051 violates his right to equal
protection by depriving him of a youth offender parole hearing
while providing that benefit to first degree murderers. We agree.
The federal and state constitutional guarantees of equal
protection of the laws require, generally, that “ ‘ “persons similarly
situated with respect to the legitimate purpose of the law [should]
receive like treatment.” ’ [Citation.] ‘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.’ [Citation.]”
(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) If this
showing is made and, as here, the different treatment implicates
no suspect class or fundamental right, a defendant must further
show that there is no rational basis for the different treatment.
(Johnson v. Department of Justice, supra, 60 Cal.4th at p. 881.)
1. Similarly situated classes
Woods contends that he is similarly situated to defendants
convicted of first degree murder for purposes of equal protection
analysis. The Attorney General disagrees, arguing that a violent
sex offender, such as Woods, “is not similarly situated to a youth
offender who does not commit such a crime, including one who
commits murder”; Woods’s crimes “are simply not ‘the “same” crime’
as murder.” We agree with Woods. Although it is generally true
that “[p]ersons convicted of different crimes are not similarly
situated for equal protection purposes” (People v. Macias (1982) 137
10
Cal.App.3d 465, 473, italics omitted), “there is not and cannot be
an absolute rule to this effect” (People v. Hofsheier (2006) 37 Cal.4th
1185, 1199, overruled on other grounds in Johnson v. Department
of Justice (2015) 60 Cal.4th 871, 875; accord, People v. Doyle
(2013) 220 Cal.App.4th 1251, 1266 [“there may be times . . . when
offenders who commit different crimes are similarly situated”]).
The question is whether different persons “ ‘are similarly situated
for purposes of the law challenged.’ ” (Cooley v. Superior Court,
supra, 29 Cal.4th at p. 253; accord, People v. Miranda (Mar. 18,
2021, E071542) __ Cal.App.5th __ [2021 WL 1035458, p. *11]
(Miranda).) “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. McKee (2010) 47 Cal.4th 1172, 1202.)
Section 3051 generally provides parole hearings for youth
offenders who have been incarcerated for a specified number
of years. A “youth offender” for this purpose is a person who
committed a controlling offense when the person was 25 years of
age or younger and for which the controlling offense sentence is
either a determinate term or an indeterminate term of no more
than 25 years to life, or a person who committed the controlling
offense as a juvenile and was sentenced for that offense to
LWOP. (§ 3051, subd. (b)(1)–(4).) The statute thus provides
relief to youthful offenders who commit first degree murder
and are sentenced to 25 years to life, but excludes, among others,
One Strike offenders. (§ 3051, subd. (h).)
The purpose of section 3051 is to provide youthful offenders
with “ ‘a meaningful opportunity to obtain release’ after they
have . . . made ‘ “a showing of rehabilitation and maturity.” ’
11
[Citation.]” (See Edwards, supra, 34 Cal.App.5th at p. 198, quoting
Contreras, supra, 4 Cal.5th at p. 381; see also Stats. 2013, ch. 312,
§ 1, p. 2522 [“[i]t is the intent of the Legislature to create a process
by which growth and maturity of youthful offenders can be assessed
and a meaningful opportunity for release established”].) This
opportunity not only establishes a mechanism for “calibrat[ing]
sentences in accordance with youthful offenders’ diminished
culpability” (In re Williams (2020) 57 Cal.App.5th 427, 435, review
granted July 22, 2020, S262191), but also provides motivation for
youthful offenders to focus on rehabilitation while serving their
sentences. (Id. at p. 434.) “ ‘ “An offender is more likely to enroll in
school, drop out of a gang, or participate in positive programs if they
can sit before a parole board sooner, if at all, and have a chance of
being released.” ’ ” (Id. at pp. 434–435, quoting Assem. Com. on
Public Safety, Analysis of Assem. Bill No. 1308 (2017–2018 Reg.
Sess.) as amended Mar. 30, 2017, p. 3.)
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), and the goal of calibrating
punishment accordingly apply to both the youthful murderer and
the youthful sex offender. 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. We
therefore agree with Woods that, for purposes of section 3051,
youthful One Strike offenders are similarly situated to youthful
first degree murderers serving a 25 years to life sentence. (See
12
Miranda, supra, __ Cal.App.5th at p. __ [2021 WL 1035458, p. *11];
Edwards, supra, 34 Cal.App.5th at p. 195.)
Division Two of this district recently came to a contrary
conclusion based on the general rule that offenders who commit
different crimes are not similarly situated and the proposition
that the different prisoners’ “common interest in rejoining society”
does not make them similarly situated. (People v. Moseley (2021)
59 Cal.App.5th 1160, 1169 (Moseley), petn. for review pending,
petn. filed Feb. 25, 2021, S267309.) The Moseley court, however,
failed to consider the purposes of section 3051 in evaluating
whether the different classes of prisoners are similarly situated.
(See People v. McKee, supra, 47 Cal.4th at p. 1202 [the initial
inquiry is to determine whether different groups are similarly
situated for purposes of the law challenged].) It is not, therefore,
persuasive on this point. (See Miranda, supra, __ Cal.App.5th at
p. __ [2021 WL 1035458, p. *11, fn. 13] [disagreeing with Moseley
on this point].)
2. Rational basis for different treatment
To prove a violation of equal protection, it is not enough
simply to show that similarly situated classes of people are
treated differently. Where, as here, there is no suspect class or
fundamental right at stake, a defendant must also show that there
is no rational basis for the distinction. (Johnson v. Department of
Justice, supra, 60 Cal.4th at p. 881.) “ ‘ This standard of rationality
does not depend upon whether lawmakers ever actually articulated
the purpose they sought to achieve. Nor must the underlying
rationale be empirically substantiated. [Citation.] While the
realities of the subject matter cannot be completely ignored
[citation], a court may engage in “ ‘rational speculation’ ” as to the
justifications for the legislative choice [citation]. It is immaterial
13
for rational basis review “whether or not” any such speculation has
“a foundation in the record.” ’ [Citation.] To mount a successful
rational basis challenge, a party must ‘ “negative every conceivable
basis” ’ that might support the disputed statutory disparity.
[Citations.] If a plausible basis exists for the disparity, courts
may not second-guess its ‘ “wisdom, fairness, or logic.” ’ [Citation.]”
(Ibid.)
Woods contends that there is no rational basis for depriving
youthful One Strike offenders, such as himself, of a youth offender
parole hearing when youthful first degree murderers have that
opportunity under section 3051. He relies on Contreras, supra,
4 Cal.5th 349 and Edwards, supra, 34 Cal.App.5th 183.
In Contreras, two defendants were convicted of numerous
sex offenses they committed when they were 16 years old.
(Contreras, supra, 4 Cal.5th at pp. 357–358.) One defendant was
sentenced under the One Strike law to two consecutive terms of
25 years to life; the other was sentenced under the One Strike
law to two consecutive terms of 25 years to life, plus two 4-year
terms. (Id. at p. 358.) The defendants challenged the sentences as
unconstitutional under the Eighth Amendment and further argued
that the exclusion of One Strike offenders from section 3051
violated their right to equal protection. (Contreras, supra, at
pp. 359, 382.) The court held that the defendants’ sentences
violated the Eighth Amendment (Contreras, supra, at p. 379) and,
therefore, the court did not need to address the equal protection
issue. Nevertheless, the court concluded with an extensive “note”
regarding the “defendants’ contention that the current treatment
of juvenile One Strike offenders is anomalous given that juveniles
convicted of special circumstance murder and sentenced to LWOP
14
are now eligible for parole during their 25th year in prison.” (Id.
at p. 382.)
The different treatment of One Strike offenders, the court
stated, “appears at odds with the high court’s observation that
‘defendants 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. . . . Although an offense
like robbery or rape is “a serious crime deserving serious
punishment,” those crimes differ from homicide crimes in a moral
sense.’ [Citation.] In the death penalty context, the high court has
said ‘there is a distinction between intentional first[ ]degree murder
on the one hand and nonhomicide crimes against individual
persons, even including child rape, on the other. The latter crimes
may be devastating in their harm, as here, but “in terms of moral
depravity and of the injury to the person and to the public,” they
cannot be compared to murder in their “severity and
irrevocability.” ’ ” (Contreras, supra, 4 Cal.5th at p. 382.)
The Contreras court further observed that “no other provision
of our Penal Code . . . treats a nonhomicide offense more harshly
than special circumstance murder,” and that it is “unaware of
any other jurisdiction that punishes juveniles for aggravated rape
offenses more severely than for the most aggravated forms of
murder.” (Contreras, supra, 4 Cal.5th at p. 382.) The court also
noted the troubling anomaly that One Strike offenders who do not
kill their victims after their sexual assaults could receive a de facto
LWOP sentence while juveniles who do kill their sexual assault
victims would be eligible for a youth offender parole hearing under
section 3051. (Ibid.) Thus, the different treatment, the court
suggested, “ ‘may remove a strong incentive for the rapist not to kill
15
the victim.’ ” (Ibid., citing Kennedy v. Louisiana (2008) 554 U.S.
407, 445.)
In Edwards, the Court of Appeal addressed the equal
protection issue left undecided in Contreras. In Edwards, a jury
convicted two defendants of various sex offenses and other crimes,
and found true certain One Strike allegations. (Edwards, supra,
34 Cal.App.5th at p. 189.) The defendants were 19 years old when
they committed their crimes. (Id. at p. 186.) The court sentenced
one defendant to a prison term of 129 years to life and the other
to a term of 95 years to life. (Id. at p. 189.) On appeal, the
defendants challenged the sentences on Eighth Amendment and
equal protection grounds.
The Court of Appeal rejected the defendants’ Eighth
Amendment challenges in part because the defendants were
19 years old when they committed their crimes: “[A] defendant’s
18th birthday marks a bright line, and only for crimes committed
before that date can he or she take advantage of the [United States
and California Supreme Courts’] jurisprudence in arguing cruel and
unusual punishment.” (Edwards, supra, 34 Cal.App.5th at p. 190,
citing People v. Argeta (2012) 210 Cal.App.4th 1478, 1482.)
The Edwards court then addressed the equal protection claim
and held that the categorical exclusion of youthful One Strikers
from the parole eligibility that section 3051 makes available to
first degree murderers “violates principles of equal protection and
is unconstitutional on its face.” (Edwards, supra, 34 Cal.App.5th
at p. 199.) The court relied on Contreras and Graham for the
proposition that defendants who commit nonhomicide crimes “ ‘ “are
categorically less deserving of the most serious forms of punishment
than are murderers” ’ ” (id. At p. 197), and, therefore, there could
16
be no rational basis for denying youthful One Strike offenders the
“parole hearings available even for first degree murderers.” (Ibid.)
The Attorney General relies on Williams, supra, 57
Cal.App.5th 475, review granted. In Williams, the jury convicted
the defendant of two counts of forcible rape, one count of forcible
sexual penetration, and one count of forcible oral copulation, as well
as robbery, burglary, making criminal threats, battery, assault with
a deadly weapon, and false imprisonment. (Williams, supra, at
p. 478.) The jury found true allegations that triggered application
of the One Strike law. (Ibid.) The defendant was 24 years old when
he committed his crimes. (Id. at p. 489.) The court imposed a
sentence of 86 years 2 months in prison plus, under the One Strike
law, an indeterminate term of 100 years to life. As in Edwards
and the instant case, the defendant in Williams argued that the
statutory exclusion of One Strike offenders from youth offender
parole hearings under section 3051 violates equal protection
principles. (Williams, supra, 47 Cal.App.5th at pp. 488–489.) The
Williams court agreed with Edwards as to the applicable principles,
but came to the opposite result, concluding “that the threat of
recidivism by violent sexual offenders . . . provides a rational basis
for the Legislature’s decision to exclude [O]ne [S]trikers from the
reach of section 3051.” (Williams, supra, at p. 493.)
The Williams court relied on People v. Bell (2016) 3
Cal.App.5th 865 (Bell), review granted January 11, 2017, S238339,
opinion vacated and cause remanded on June 13, 2018 for further
consideration in light of Contreras, supra, 4 Cal.5th 349.6
6After the Supreme Court’s remand in Bell, the Court
of Appeal vacated its prior opinion and, without addressing the
equal protection issue, remanded the case to the trial court for
17
According to the Bell court, the statutory exclusion of Three Strike
offenders along with One Strike offenders from youth offender
parole hearings (see § 3051, subd. (h)), indicates that “the
Legislature had recidivism in mind when it excluded [O]ne
[S]trike offenders.” (Bell, supra, 3 Cal.App.5th at p. 879.) The
court also pointed to the Sexually Violent Predators Act (Welf. &
Inst. Code, § 6600 et seq.), the Mentally Disordered Offenders
Act (§ 2960 et seq.), and the Sex Offender Registration Act (§ 290
et seq.) to show that “the Legislature believes that most sex
offenders pose a recidivism risk.” (Bell, supra, at p. 879.) That
risk, the court concluded, provides a rational basis for excluding
One Strike offenders from the benefit of section 3051. (Bell, supra,
at p. 879.) The Williams court agreed with Bell’s reasoning and
concluded “that the risk of recidivism provides a rational basis for
the Legislature to treat violent felony sex offenders sentenced under
the [O]ne [S]trike law differently than murderers or others who
commit serious crimes.” (Williams, supra, 47 Cal.App.5th at p. 493,
review granted; see also Moseley, supra, 59 Cal.App.5th at p. 1170,
petn. for review pending [holding that concern for recidivism by
sex offenders provides a rational basis for different treatment under
section 3051].)7
We agree with Edwards. Initially, we note that there is
nothing in the legislative history to indicate that the Legislature
excluded One Strike offenders based upon concerns that such
resentencing in light of Contreras. (People v. Bell (Aug. 2, 2018,
B263022) [nonpub. opn.].)
7Justice Ashmann-Gerst dissented in Moseley, stating that
she agreed with the analysis in Edwards. (Moseley, supra, 59
Cal.App.5th at p. 1170 (dis. opn. of Ashmann-Gerst, J.), petn. for
review pending.)
18
youthful offenders were more likely to recidivate than other
youthful offenders. In early versions of the bill that enacted
section 3051, Third Strikers, but not One Strikers, were expressly
excluded from the benefits of the proposed law. (See Sen. Bill
No. 260 (2013–2014 Reg. Sess.) as amended Mar. 18, 2013, Apr. 4,
2013, May 24, 2013, June 27, 2013 & Aug. 12, 2013.) The exclusion
of One Strikers was added in the final amendment to the bill and,
so far as our examination of its history shows, done so without
explanation or supporting evidence. (Assem. Amend. to Sen. Bill
No. 260 (2013–2014 Reg. Sess.) Sept. 3, 2013.)
Williams is correct that a rational basis for unequal
treatment may be found despite the absence of legislative history or
supporting evidence, and that courts “may engage in ‘ “ ‘ “rational
speculation” ’ ” ’ as to the justifications for the Legislature’s
decision.” (Williams, supra, 47 Cal.App.5th at p. 493, review
granted, quoting People v. Turnage (2012) 55 Cal.4th 62, 75.) The
speculation that Williams and its progeny engaged in to justify the
unequal treatment between first degree murderers and One Strike
offenders—that the Legislature was concerned about recidivism
among One Strike offenders—does not, however, withstand
scrutiny.
First, denying parole eligibility for One Strike offenders
with de facto LWOP terms, such as Woods, is contrary to the
United States Supreme Court’s and California Supreme Court’s
evaluations that nonhomicide crimes, no matter how heinous,
are less deserving of the most serious forms of punishment than
first degree murder. (See Graham, supra, 560 U.S. at p. 69;
Contreras, supra, 4 Cal.5th at p. 366.) Granting youth offender
parole hearings to first degree murderers while denying them to
One Strike offenders, implies the opposite—that the first degree
19
murderer is more deserving of that opportunity than the One Strike
offender.
Second, the recidivism explanation for differentiating
between One Strikers and first degree murderers ignores the fact
that, although “ ‘violent rapists do recidivate, and the state has a
legitimate interest in severely punishing this crime,’ ” “murderers,
too, recidivate, and the state has an interest in severely punishing
the crime of murder.” (Edwards, supra, 34 Cal.App.5th at p. 199.)
As the Edwards court recognized, the equal protection inquiry is
not whether the concern for sex offender recidivism justifies the
denial of parole eligibility for sex offenders, but whether a theory
of recidivism can rationally justify the categorical exclusion of
One Strike offenders from parole hearings while first degree
murderers are entitled to such hearings when both classes of
offenders recidivate.
In Williams, the court failed to address this question. For
the Williams court, it was enough for it to “believe that the threat
of recidivism by violent sexual offenders . . . provides a rational
basis for the Legislature’s decision to exclude [O]ne [S]trikers from
the reach of section 3051.” (Williams, supra, 47 Cal.App.5th at
p. 493, review granted.) But this ignores a critical part of the
analysis. As Edwards observed, the task in an equal protection
analysis is to compare similarly situated groups to determine
whether a difference between them rationally supports unequal
treatment under the law. (Edwards, supra, 34 Cal.App.5th at
p. 199.) The threat that a class of offenders is likely to recidivate
may well justify denying youth offender parole hearings to
such likely recidivists. But where similarly situated classes of
offenders both recidivate, recidivism alone offers no rational basis
for unequal treatment.
20
Third, the theory that the threat of recidivism by One Strike
offenders justifies their exclusion from youth offender parole
hearings is inconsistent with the right of so-called “Two Strike”
sex offenders to such hearings.8 Under section 667.71—the
Two Strikes law—one is deemed a “habitual sexual offender” who
commits one or more enumerated sex offenses after having been
previously convicted of such an offense. (§ 667.71, subd. (a); see
generally Couzens & Bigelow, Sex Crimes: Cal. Law and Procedure
(The Rutter Group 2020) § 13:11.) Because such an offender
has, according to the Legislature, “an incurable predisposition
to commit violent sex crimes” (Stats. 1993, ch. 590, § 1, p. 3096),
the punishment for the second qualifying offense is imprisonment
for 25 years to life (§ 667.71, subd. (b)). Nevertheless, Two Strike
offenders, unlike One Strikers, are not categorically excluded from
the benefits of section 3051. As Woods argues, because habitual
sexual offenders convicted under the Two Strikes law may be
eligible for youth offender parole hearings while those who have no
prior convictions and are sentenced under the One Strike law are
excluded, the risk of recidivism rationale for excluding One Strikers
“falls apart.”9
8The equal protection implications of different treatment
under section 3051 between One Strike offenders and Two Strike
offenders was not raised in Woods’s petition or the People’s return.
Upon our request, the parties filed supplemental briefs on this
question, which we have received and considered.
9 We need not decide whether the different treatment
between One Strike offenders and Two Strike offenders constitutes
an equal protection violation; for present purposes it suffices for
us to conclude that giving the right to benefits under section 3051
for known habitual sex offenders while denying such benefits for
21
The Attorney General points out that habitual sex offenders
“in many cases may also be sentenced under the Three Strikes law”
(see People v. Murphy (2001) 25 Cal.4th 136, 157–158), and that the
prior offenses that trigger the application of the Two Strikes law are
also serious or violent felonies for purposes of the Three Strikes law.
Nevertheless, a person who qualifies as a habitual sex offender
under the Two Strikes law will not necessarily be sentenced under
the Three Strikes law. (See People v. Hammer (2003) 30 Cal.4th
756, 771 [where defendant could be sentenced under both the
Two Strikes law and the Three Strikes law, court remanded for
new sentencing hearing so that court could consider “ ‘whether
to dismiss the prior conviction for Three Strikes sentencing
purposes’ ”]; People v. Murphy, supra, at pp. 159–160 [where both
Two Strikes law and Three Strikes law applied, court may strike
prior conviction allegations under Three Strikes law]; accord, People
v. Snow (2003) 105 Cal.App.4th 271, 283.) Thus, even if, as the
Attorney General asserts, habitual sex offenders will “in many
cases” be sentenced under the Three Strikes law, some undoubtedly
will not; yet those habitual sex offenders who are sentenced under
the Two Strikes law only will still be eligible for youth offender
parole hearings under section 3051. The eligibility of some habitual
sex offenders for early parole consideration when One Strikers
are excluded from the same consideration further undermines
the recidivist rationale for the disparate treatment between One
Strikers and murderers.
Lastly, we note that providing early parole consideration to
youthful murders but denying it to youthful One Strike offenders,
potential recidivists negates a recidivism rationale for the latter’s
exclusion.
22
creates an incentive for the rapist to kill his victim. (See Contreras,
supra, 4 Cal.5th at p. 382; cf. Kennedy v. Louisiana, supra, 554 U.S.
at p. 445.) Surely, the legislature cannot have intended to create
such a perverse incentive.
In Miranda, supra, __ Cal.App.5th __ [2021 WL 1035458,
pp. *12−13], the Court of Appeal for the Fourth District,
Division Two recently agreed with Williams and declined to follow
Edwards. The Miranda court explained that a rational basis could
exist for treating similarly situated youth offenders differently
because “the Legislature could have thought that extending
section 3051 to [o]ne [s]trikers was too large an additional reform
for the current moment.” (Miranda, supra, at p. __ [2021 WL
1035458, p. *12].) The court added the “closely related” reason
that “the Legislature may have selectively extended section 3051’s
benefits to some but not all as a means of testing whether youth
offender parole hearings will benefit or harm society as a whole.”
(Miranda, supra, at p. __ [2021 WL 1035458, p. *13].)
The incrementalism or “testing” rationales, however, are not
sufficient by themselves to sustain laws against an equal protection
challenge. As the Miranda court indicated, a law that provides
“eligibility for youth offender parole hearings [based] on a
prisoner’s height or hair color” would not have a rational
basis and thereby violate equal protection principles. (Miranda,
supra, __ Cal.App.5th at p. __ [2021 WL 1035458, p. *13].) An
incremental approach or testing rationale that excludes prisoners
with red hair as an incremental step or test toward the possibility
of excluding prisoners with red or brown hair would fair no better
against a constitutional challenge. Thus, there must, as the
Miranda court acknowledged, still be a “rational basis for the
classification itself,” be it the prisoner’s height, hair color, or
23
criminal offense. (Ibid.) That ultimate rational basis, the Miranda
court concluded, is the rationale of reducing recidivism identified
in Williams. (Ibid.) Because we reject the recidivism rationale
of Williams for the reasons set forth above, we declined to follow
Miranda.
We therefore conclude that the exclusion of One Strike
offenders from eligibility for a youth offender parole hearing under
section 3051, subdivision (h) violates the constitutional right to
equal protection of the laws.
C. Eighth Amendment
Woods’s Eighth Amendment argument is based on the
theory that the line of cases prohibiting LWOP sentences and the
functional equivalent of LWOP sentences when the defendant was
a juvenile at the time he committed his crimes should apply to him
even though he was 19 years old when he committed his crimes.
(See, e.g., Graham, supra, 560 U.S. at p. 75; Caballero, supra,
55 Cal.4th at p. 268.) He acknowledges that courts have rejected
similar arguments. (See, e.g., People v. Montelongo (2020) 55
Cal.App.5th 1016, 1032; Edwards, supra, 34 Cal.App.5th at p. 190;
People v. Perez (2016) 3 Cal.App.5th 612, 617; People v. Abundio
(2013) 221 Cal.App.4th 1211, 1220-1221; People v. Argeta, supra,
210 Cal.App.4th at p. 1482.) He contends, however, that the
neuroscientific foundation for sentencing juveniles less harshly
than adults supports an extension of the principles established
in Graham and its progeny. “The juvenile brain,” he argues,
“does not magically transform into an adult brain when the clock
strikes midnight on the defendant’s 18th birthday.” Because we
conclude that Woods is entitled to a youth offender parole hearing
under section 3051, we do not decide whether the developing Eighth
24
Amendment jurisprudence concerning juveniles should be extended
to those who commit crimes when they are 19 years old.
In Franklin, our state Supreme Court considered whether
a term of 50 years to life—the functional equivalent of LWOP—
imposed on a defendant who was 16 years old when he committed
his crimes violated the Eighth Amendment. (Franklin, supra,
63 Cal.4th at p. 268.) The court held that the defendant’s Eighth
Amendment claim had been rendered moot by the enactment
of section 3051. (Franklin, supra, at p. 280.) That statute, the
court explained, “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.” (Id.
at p. 281.) “Such a sentence is neither LWOP nor its functional
equivalent.” (Id. at p. 280.)
As explained in part B of the Discussion, ante, the exclusion
of One Strike offenders violates the equal protection clause and
Woods is therefore entitled to a youth offender parole hearing in
his 25th year of incarceration. As a result, his sentence, like the
juvenile’s sentence in Franklin, is neither LWOP nor its functional
equivalent. Therefore, even if, arguendo, we were inclined
to extend the principles established in Graham and Caballero
to 19-year-olds such as Woods, his claim that his sentence was
unconstitutional is mooted by the applicability of section 3051.
Accordingly, we do not address the question whether, in the absence
of the availability of a youth offender parole hearing, Woods’s
sentence violates the Eighth Amendment.
After the parties filed their briefs in this case, we requested
the parties file supplemental briefs discussing the impact, if any, on
the issues in this case of the enactment of Assembly Bill No. 3234
(2019–2020 Reg. Sess.), amending section 3055. This amendment
25
provides for parole suitability hearings for inmates who are
50 years of age or older and have been incarcerated for at least
20 consecutive years. (Stats. 2020, ch. 334, § 2.) Both sides agree
that this amendment does not impact Woods’s equal protection
argument, but disagree as to its effect on his Eighth Amendment
argument. Because we agree with Woods’s equal protection
argument and conclude that Woods is entitled to a youth offender
parole hearing under section 3051 during his 25th year of
incarceration—which will occur before he reaches the age of 50—
and that his Eighth Amendment argument is therefore moot, we
do not address whether the amendments to section 3055 impact the
issues in this case.
26
DISPOSITION
The petition for writ of habeas corpus is granted. Woods
is therefore entitled to a youth offender parole hearing during his
25th year of incarceration pursuant to section 3051 and without
regard to section 3051, subdivision (h). The matter is remanded
to the superior court in order for it to determine whether Woods
has been provided with an adequate opportunity to make a record
of information that will be relevant to the parole board (see
Franklin, supra, 63 Cal.4th at p. 284; In re Cook (2019) 7 Cal.5th
439, 458–459) and, if not, to provide that opportunity.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
I concur:
CHANEY, J.
27
BENDIX, J., Dissenting.
“How much rape is there? There is general agreement that
all official or publicly ascertained rates are underestimates, but
no one yet knows how much higher the true rate is.” 1
Petitioner Andre Lamont Woods, then 19 years old, raped
and molested a female bus driver at knifepoint several times
while kidnapping her and forcing her into a more secluded
location. The trial court sentenced Woods to 25 years to life
under the “One Strike” law (Pen. Code,2 § 667.61), plus a term of
57 years to life. Woods raises two constitutional challenges to his
sentence: Section 3051’s exclusion of One Strike sex offenders
from earlier parole consideration violates his equal protection
rights; and committing him to prison until he is 89 years old
violates the Eighth Amendment’s prohibition against cruel
and unusual punishment.3 The majority concludes that
section 3051’s exclusion of One Strike sex offenders violates
equal protection and thus, the majority does not reach Woods’
Eighth Amendment challenge.4
1 Gordon and Riger, The Female Fear (1989) 37.
2 Undesignated statutory citations are to the Penal Code.
3 Section 3051 grants certain eligible offenders a youthful
offender parole hearing at a time earlier than the indeterminate
term sentence would permit. (People v. Franklin (2016) 63
Cal.4th 261, 277–276.) Section 3051 excludes persons sentenced
under section 667.61. (People v. Moseley (2021) 59 Cal.App.5th
1160 (Moseley), petn. for review pending, petn. filed Feb. 25,
2021, S267309.)
4 Woods concedes that his Eighth Amendment challenge
contravenes appellate precedent including People v. Edwards
There is a split of authority on whether section 3051’s
exclusion of One Strike offenders violates equal protection. 5 I
agree with the majority opinion authored by Division Two of our
District in Moseley, concluding that exclusion of One Strike sex
offenders from earlier parole consideration does not deprive them
of equal protection of the law. (Moseley, supra, 59 Cal.App.5th
at p. 1162, petn. for review pending.) Division Two held that
excluding sex offenders from youth offender parole consideration
was rationally related to a legitimate penal interest because of
“significant public safety concerns,” “including recidivism” by
convicted sex offenders. (Id. at p. 1170.) I also agree with our
colleagues in Division Two of the Fourth District in People v.
Miranda (Mar. 18, 2021, E071542) ___ Cal.App.5th ___ [2021
Cal.App.Lexis 234] (Miranda), when they concluded, “[T]he
Legislature appears to have excluded from early parole eligibility
(2019) 34 Cal.App.5th 183, 186, 190 (Edwards): “Woods
recognizes that his argument has been rejected by other courts
[citations], but contends that those cases were incorrectly decided
or must be reconsidered in light of the advancement in research
into brain science . . . .” As Division Seven of our District recently
reasoned, we are bound by authority from the United States
Supreme Court and our high court rejecting that a bright line
at 18 years of age is arbitrary. (People v. Montelongo (2020)
55 Cal.App.5th 1016, 1032, review den. Jan. 27, 2021, S265597
[noting “recent scientific and legal developments” criticizing such
a bright line as arbitrary but noting it is up to the United States
Supreme Court, the California Supreme Court, the Legislature,
or the voters by initiative to change the law].)
5 Compare Edwards, supra, 34 Cal.App.5th at page 198
with People v. Williams (2020) 47 Cal.App.5th 475, review
granted July 22, 2020, S262191, and Moseley, supra, 59
Cal.App.5th 1160, petition for review pending, petition filed
February 25, 2021, S267309.
2
those whom it saw as exceptionally likely to reoffend.” (Id. at
p. ___ [2021 Cal.App.Lexis, p. *34].)
Certainly, social science has influenced legislative acts and
appellate jurisprudence as reflected in section 3051 itself and in
the very appellate debate before us. Social science has produced
statistics about recidivism by sex offenders that arguably would
support both sides in this debate.
Surveyed rates of recidivism vary widely,6 largely based on
6 See, e.g., Langevin et al., Lifetime Sex Offender
Recidivism: A 25-year Follow-Up Study (2004) 46 Canadian J.
Criminology & Crim. Just. 531 (Langevin) [documenting that
approximately three in five offenders “reoffended, using sex
reoffence charges or convictions or court appearances as criteria,
but this proportion increased to more than four in five when all
offences and undetected sex crimes were included in the
analysis,” and concluding “[t]he typical known criminal career
spanned almost two decades, indicating that sex offence
recidivism remained a problem over a significant part of the
offenders’ adult lives,” italics omitted]; cf. O’Hear, Managing the
Risk of Violent Recidivism: Lessons From Legal Responses to
Sexual Offenses (2020) 100 B.U.L.Rev. 133, 145, footnote 61
(O’Hear) [referencing a 2005 study of 30 states of rearrests within
five years of release from prison for sexual assault offenders:
5.6 percent for sexual assault; 51.4 percent for public order
offenses; 17.9 percent for property offenses; and 13 percent for
drug offenses].
See also Bench and Allen, Assessing Sex Offender
Recidivism Using Multiple Measures: A Longitudinal Analysis
(2013) 93 Prison J. 411, 425 (Bench & Allen) [“Although more
than 35 years of research indicates that the incidence of sex
offender recidivism is not only low, but much lower than many
other criminal offenses . . . . Nonetheless, it is important for
public safety to continue efforts to identify the small group of sex
offenders who will become chronic recidivists.”]. But see Baker,
3
differing methodologies.7 There is scholarship documenting that
juvenile sex offenders present a lower risk of recidivism than
adult sex offenders.8 There is also scholarship maintaining the
“essentially identical” correspondence between rapes committed
by juvenile offenders and the rapes they commit as adults: “They
selected similar victims in regard to their relative ages, sex, and
social relationship,” and “[t]hey committed similar acts with the
same degree of aggression or violence.”9 As noted above, social
science literature also discusses the potential understating of
recidivism rates by sex offenders because of the underreporting of
Once a Rapist? Motivational Evidence and Relevancy in Rape
Law (1997) Harv. L.Rev. 563, 578 (Baker: Once a Rapist)
[rejecting the theory that “rapists are more likely than other
criminals to repeat their acts” and reporting that based on a 1989
Bureau of Justice study, “[o]nly homicide had a lower recidivism
rate than rape”].
7 For example, they differ in the population sampled, what
kind of treatment was available to the sampled population while
in prison and after release from prison, the sex offender’s age
at the time of release from prison, and whether arrest reports,
convictions, or other events were counted in measuring
recidivism. (See Bench & Allen, supra, at pp. 412–415, and
Prentky et al., Recidivism Rates Among Child Molesters and
Rapists: A Methodological Analysis (Jan. 1997) Law and Human
Behavior, Vol. 21, No. 6 [analyzing, inter alia, different
methodologies in measuring recidivist rates and the resulting
variance in those rates].)
8 See, e.g., O’Hear, at page 147, footnote 71.
9 Groth, Men Who Rape: The Psychology of the Offender
(1979) 183.
4
sex offenses like rape.10
It is possible that differences in the nature of some rape and
murder crimes may also express themselves in rates of
recidivism. Rapes of female adults, although always intimate,
can be impersonal. The perpetrator may not even know his
victim. Social science literature explains that these instances of
rapes may be grounded in a desire for control and power rather
than a desire to harm a particular victim.11 Compare such a rape
to a premeditated first degree murder, where the murderer
deliberately targets a specific victim. Such a murderer may
never recidivate because the murderer’s motivation would be
based on that specific victim. It is thus not surprising that at
least one study reports that rape has a higher rate of recidivism
than murder.12
I acknowledge that these statistical differences produced by
varying methodologies may present a challenge to determining
which data are more reliable or persuasive, particularly to
someone like this dissenter with no expertise in statistics. Given
this debate in Academe, however, it would not be constitutionally
irrational for the Legislature to find support in this social science
10 Langevin, supra, at page 535; Baker, What Rape Is and
What It Ought Not to Be (1999) 39 Jurimetrics J. 233, 234–235
(Baker: What Rape Is); Baker: Once a Rapist, supra, at
pages 579–580.
11 Baker: What Rape Is, supra, at pages 239–240.
12 See footnote 6, ante. I acknowledge the exceptions to my
hypothesis. Certainly, there are murders where the perpetrator
targets the victim, but may also recidivate, for example, in gang
retaliation settings.
5
literature for excluding sex offenders from earlier parole
consideration in the interests of public safety.13
The majority rejects the “recidivism rationale” in part
because recidivist sex offenders sentenced under section 667.71,
the so-called “Two Strikes” law (§ 667.71), are eligible for
the benefits of section 3051, whereas One Strikers, who may
have committed only one sex crime, are not. (Maj. opn. ante,
at pp. 20–22.) Respectfully, I disagree. Those statutes are not
the same, and it is arguably reasonable that the Legislature
might have exempted defendants sentenced under one statute,
but not the other, from earlier parole consideration under
section 3051.
The Two Strikes law imposes a sentence of 25 years to life
when a defendant convicted of a sex offense enumerated in the
statute has previously been convicted of an enumerated offense.
(§ 667.71, subds. (a)–(c).) The same may, in most cases, be
achieved through the One Strike law, which similarly imposes
a 25-to-life sentence on those who commit an enumerated
sex offense and have suffered a previous conviction for an
enumerated offense. (See § 667.61, subds. (a), (c), (d)(1).) The
One Strike law goes further, however, by encompassing not only
recidivist offenders, but also those who have not suffered a
13 As our high court recognized in People v. Turnage (2012)
55 Cal.4th 62, “[t]his standard of rationality does not depend
upon whether lawmakers ever actually articulated the purpose
they sought to achieve. Nor must the underlying rationale be
empirically substantiated. [Citation.] While the realities of the
subject matter cannot be completely ignored [citation], a court
may engage in ‘ “rational speculation” ’ as to the justifications for
the legislative choice [citation]. It is immaterial for rational basis
review ‘whether or not’ any such speculation has ‘a foundation in
the record.’ ” (Id. at pp. 74–75.)
6
previous conviction but whose current offense is a particularly
heinous sex crime, for example, involving kidnapping, torture,
great bodily injury, use of weapons, use of controlled substances,
or multiple victims. (Id., subds. (d)(2)–(3), (6), (e)(3)–(4), (6).)
It would not be irrational for the Legislature, concerned
with the potential for sex offenders in particular to recidivate,
to focus on those offenders who have committed the most
heinous sex offenses, and exempt them from the benefits of
section 3051.14 At the same time, the Legislature reasonably
could be less concerned with those convicted of less heinous sex
crimes, and therefore allow for the possibility that those offenders
might remain eligible for the benefits of section 3051.
Whether sex offenders would be eligible for early parole
consideration under section 3051 largely would depend on
decisions by the prosecutors and the trial court. As the Attorney
General points out and the majority acknowledges, anyone
subject to sentencing under the Two Strikes law would also be
subject to sentencing under the “Three Strikes” law (§§ 667,
subds. (b)–(i) & 1170.12). Defendants sentenced under the
Three Strikes law are, like One Strikers, ineligible for the
benefits of section 3051. (§ 3051, subd. (h).) Therefore a trial
court may foreclose a Two Striker from section 3051 eligibility
by also imposing a Three Strikes sentence. Similarly, where the
14 As the Miranda court observed after noting that those
sentenced under the Three Strikes and One Strike laws are
excluded from earlier parole consideration under section 3051,
“[b]y excluding youth offenders convicted under either of these
laws, the Legislature appears to have drawn a line at recidivism
risk. We cannot say that line was arbitrary or irrational.”
(Miranda, supra, ___ Cal.App.5th at p. ___ [2021 Cal.App.Lexis
234, p. *35].)
7
substantive provisions of sections 667.61 and 667.71 overlap, a
prosecutor could foreclose section 3051 eligibility by charging a
recidivist sex offender under the One Strike law’s recidivism
provisions rather than the Two Strikes law.
Of course, it is possible in a given case, that a Two Striker
has committed crimes as heinous as those of a One Striker,
or that someone convicted as a One Striker on the basis of
recidivism is no different than someone convicted on that basis
under the Two Strikes law. As our Supreme Court has stated,
however, “ ‘[w]hen conducting rational basis review, we must
accept any gross generalizations and rough accommodations that
the Legislature seems to have made.’ [Citation.] ‘A classification
is not arbitrary or irrational simply because there is an
“imperfect fit between means and ends” ’ [citation], or ‘because it
may be “to some extent both underinclusive and overinclusive” ’
[citation].” (Johnson v. Department of Justice (2015) 60 Cal.4th
871, 887.)
For all these reasons, I would hold that the exclusion of
One Strike sex offenders from earlier parole consideration under
section 3051 does not deprive Woods of equal protection of the
law.
BENDIX, J.
8