People v. Morales

Filed 7/30/21
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A157644
v.
LUIS JAVIER MORALES, JR., (Contra Costa County
Super. Ct. No. 51709906)
Defendant and Appellant.
Defendant Luis Javier Morales, Jr. fired six shots in the direction
of a parked, occupied car, resulting in the death of his pregnant
acquaintance who stood in the street near the car. The jury convicted
Morales of two counts of first degree murder, one count of attempted
murder, one count of shooting at an occupied vehicle, and one count of
possession of a firearm by a felon. The jury also found true four
firearm use enhancements under Penal Code 1 section 12022.53,
subdivision (d) (section 12022.53(d)), and a multiple murder special
circumstance allegation (§ 190.2, subd. (a)(3)).
Morales contends: (1) the prosecutor committed prejudicial
misconduct in closing argument and his counsel was ineffective for
failing to object thereto; (2) the attempted murder conviction must be
Pursuant to California Rules of Court, rules 8.1105(b) and
*
8.1110, this opinion is certified for publication with the exception of
part B, D, and E of section II, post.
All further statutory references are to the Penal Code unless
1
otherwise stated.
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reversed because there was insufficient evidence to support a kill zone
jury instruction, and the instruction given was legally erroneous; and
(3) with respect to the firearm use enhancement found true on count 1,
Morales was deprived of due process by the court’s failure to instruct
that the requisite great bodily injury or death under section
12022.53(d) must be to a person other than an accomplice.
Morales also raises the following sentencing challenges: (1) the
court erred in imposing two terms of 25 years to life for first degree
murder (counts 1 and 2), along with a life without the possibility of
parole (LWOP) term for the multiple murder special circumstance
finding; (2) remand is required to allow the trial court to exercise its
discretion under section 12022.53, subdivision (h) (section 12022.53(h))
to strike the firearm use enhancements; and (3) the sentencing and
youthful offender parole provisions of sections 3051, 1170, subdivision
(d)(2)(A)(i) (section 1170(d)(2)), and 190.5, subdivision (b) violate equal
protection principles. We modify Morales’s sentence on counts 1 and 2
and the special circumstance finding to reflect two LWOP sentences,
and we reverse the true finding on the section 12022.53(d) firearm use
enhancement as to count one. We otherwise affirm the judgment.
I. BACKGROUND
Based on Morales’s act of firing six shots at the occupants of a
parked car and the resulting deaths of a young woman who stood near
the car and her unborn baby, Morales was charged with two counts of
murder with a multiple murder special circumstance allegation and
firearm use enhancements (§§ 187, subd. (a), 190.2, subd. (a)(3),
12022.53, subds. (b), (c) & (d)) (counts 1 and 2); attempted murder with
firearm use enhancements (§§ 664, 187, subd. (a), 12022.53, subds. (b),
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(c) & (d)) (count 3); shooting at an occupied vehicle with a firearm use
enhancement (§§ 246, 12022.53, subd. (d)) (count 4); and possession of a
firearm by a felon (§ 29800, subd. (a)(1)) (count 5). A jury found
Morales guilty as charged and made true findings for the special
circumstance allegation and the section 12022.53(d) firearm use
enhancements.
The trial court sentenced Morales to a term of LWOP on the
special circumstance allegation and to two consecutive terms of 25
years to life for each murder. The court imposed but stayed the four 25
years-to-life terms for the firearm use enhancements associated with
counts 1 through 4; a term of 7 years for attempted murder; a term of 1
year and eight months for shooting at an occupied vehicle; and a term
of eight months for the felon in possession of a firearm conviction.
Morales timely appealed.
A. The Prosecution’s Case
In September 2016, 18-year-old Ilaysia M. was seven months
pregnant with Deandre L.’s child. Deandre L. had ended the
relationship and had a new girlfriend, Maria M. Ilaysia M. was upset
over the end of the relationship, so, on September 5, Ilaysia M., her
cousin Maria U., and their friends, Joselin E. and Carla G., drove
around looking for Deandre L. and Maria M. to confront them. Maria
U. planned to fight Maria M.
The women saw Deandre L. and Maria M. at a bus stop near
Deandre L.’s house. Before the women could get out of their car,
however, Deandre L.’s friend, Gustavo D., picked the couple up in his
Cadillac. When Gustavo D. drove away, the women followed. They
spotted Gustavo D.’s car in a market parking lot. The women pulled
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into the parking lot and got out of the car; Maria U. went to Maria M.’s
door, hit the window, and told her to open the door. Maria U. and
Maria M. started fist fighting.
Elias Q., who was in the front passenger seat of Gustavo D.’s car,
got out, and, according to Joselin E., tried to hit or push Ilaysia M. At
trial, Elias Q. denied trying to hit or push Ilaysia M., but admitted that
he had pushed Maria U. “away.” Deandre L. also intervened and called
Ilaysia M. and her friends “bitches.” After the fight ended, Deandre L.
and Elias Q. told the women to come over to Deandre L.’s house, and
Joselin E. testified that Elias Q. made a gun gesture with his hand.
Ilaysia M. and her friends were angry and upset, and one of them
decided to call Morales, whom Joselin E. was casually dating, on
Joselin E.’s cell phone. The women told Morales about the fight,
including that Deandre L. had called them names and that Elias Q. had
tried to push Ilaysia M. They asked Morales to accompany them to
Deandre L.’s house, and they talked about wanting to fight.
The women then met Morales, who was with Luciano D. and
Deepak N., at the corner on Bush Avenue. One of the women asked the
men to “slide” over to Deandre L.’s house. “Slide” can imply something
violent. At Bush Avenue, defendant got out of his black Nissan and
went inside a nearby residence to go get something. Maria U. saw
defendant holding a black gun in the street at Bush Avenue and 21st
Street.
The two cars then went to Ilaysia M.’s grandmother’s house, and
the plan became to go to Deandre L.’s house. The word “slide” was used
again. Maria U. told police that Morales said he was “going to slide on”
Deandre L. Joselin E. told police that she saw Luciano D. with a gun
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that day before going to Deandre L.’s house. The women knew that
Morales had a gun and knew that Luciano D. had one on that occasion.
The women wanted Morales and his companions to bring their weapons
and go with them to Deandre L.’s house, where they were going to pick
a fight. The women drove to Deandre L.’s house, and the three men did
as well in Morales’s car.
When the women arrived at Deandre L.’s house, Gustavo D.’s
Cadillac was parked next to the sidewalk in front of Deandre L.’s
driveway, and Gustavo D. and Elias Q. were in the car. Elias Q.
testified that another person, Jason, was also in the Cadillac, and he
believed that Jason was in the car when the fight occurred earlier at
the market. Maria U. also said that Jason was in the Cadillac when
they arrived at Deandre L.’s house. Gustavo D., however, testified that
Jason was not in the Cadillac when the women arrived at Deandre L.’s
house. Gustavo D. sat in the driver’s seat and Elias Q. in the front
passenger seat of the Cadillac. Elias Q. said Jason was in the backseat.
The boys were smoking synthetic marijuana, and Deandre L. and
Maria U. had gone inside Lowe’s house.
Joselin E. stopped her car in the middle of the street facing the
opposite direction from Gustavo D.’s car. Maria U. asked Gustavo D. if
he “had a problem with” her, and, as she spoke, Ilaysia M. got out of the
car, “walk[ed] up to” Gustavo D., and asked where Deandre L. and
Maria M. had gone. By Gustavo D.’s account, all of the women were
aggressive and started “screaming” and demanding to see Maria M. He
testified it was clear they wanted to continue the confrontation.
At some point, Morales, Luciano D., and Deepak N. arrived in
Morales’s black Nissan. Gustavo D. and Joselin E. testified that
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Morales drove by in a black car after the women parked. Gustavo D.
testified that Morales parked his car 30 to 40 yards behind Gustavo
D.’s car, facing the same direction as the women’s car. Gustavo D. and
Elias Q. could only see Morales’s car by turning around or looking in
the rearview mirrors.
Ilaysia M. stood near the driver’s side window of Gustavo D.’s car
with her body facing him. As they spoke, Maria U.—who had returned
to Joselin E.’s car—saw Morales and Luciano D. get out of Morales’s
car. Maria U. testified that she saw Morales point his gun in the
direction of the Cadillac. She did not hear anything before Morales
shot. Gustavo D. also saw Morales shoot, and Gustavo D. and Maria U.
saw sparks from Morales’s gun as it fired. Joselin E., who sat in the
driver’s seat of her car, dropped down but saw one bullet come from the
front of her car across and pass on the side; the bullet came from the
direction of Morales’s car. A neighbor testified that she heard several
gunshots in quick succession. Elias Q. counted four or five shots. San
Pablo’s ShotSpotter system—a network of audio-recording devices
placed throughout the city that detect the sound of gunfire and
“geolocate” its origin—detected six gunshots at 7:56 p.m., at 17th Street
and Post Avenue.
At the sound of gunfire, Gustavo D. testified that he opened the
driver’s side door and fled from the car. He saw Morales shooting as he
fled. Elias Q. opened the door on the other side of the car and also “ran
for [his] life.” They both hopped the fence to Deandre L.’s backyard and
waited for the police to arrive. Elias Q. testified that Jason ran from
the car as well, but he did not see him again that day. As he jumped
over the fence, Gustavo D. heard the women screaming.
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The women panicked when they heard gunshots. Maria U. told
Ilaysia M. to get in the car, but it was too late. Ilaysia M. was face-
down on the ground. The women called 911. Morales fled the scene
immediately after the shooting.
Police responded to the scene within one minute of the ShotSpotter
notice. Paramedics also arrived and took Ilaysia M. to the hospital.
Both the baby and Ilaysia M. died. Ilaysia M. was hit by a single bullet
that caused significant organ and tissue damage, and she died as a
result of the gunshot. The baby died from lack of oxygen resulting from
maternal blood loss.
During evidence collection that night, Officer Biama found six
.40-caliber spent cartridges at the intersection of Post and 17th Street,
169.4 feet from Ilaysia M.’s body. All but one of the cartridges were
“partially crushed,” consistent with having been stepped on or driven
over. A ballistics expert determined that the six cartridges were from
the same gun. Officer Biama searched near Gustavo D.’s car and in
Deandre L.’s front yard, but did not locate any casings there. Police did
not discover evidence of gunfire in or on the Cadillac.
B. The Defense Case
Jesus Valencia lived near DeandreL.’s house in San Pablo and
heard two gunshots on the evening of September 5. “Very little” time
passed between the first and second shot. Valencia testified that the
two shots sounded differently, leading him to believe they came from
different guns.
On cross-examination, the prosecution’s ShotSpotter expert
testified that the system can have trouble registering sounds from
lower caliber guns, like .22 calibers.
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Deepak N. testified that, on the day of the shooting, he was with
Morales and Luciano D. They met Ilaysia M. and the other women at
Ilaysia M.’s grandmother’s house, but he did not recall meeting on
Bush Avenue. Deepak N. considered the women to be close friends.
The women told Morales, Luciano D., and Deepak N. about the fight at
the market. Ilaysia M. wanted to go to Deandre L.’s house to cause
problems, with Morales, Luciano D. and Deepak N. acting as their
“protection,” which Deepak N. understood to mean accompanying the
women and “[j]ust being there.” Ilaysia M. asked the men to come to
Deandre L.’s house “[o]nce or twice,” and Deepak N. testified that the
women wanted to go start a fight. However, Ilaysia M. told Morales,
“Don’t shoot,” and Deepak N. said that Morales did not want to go.
Nonetheless, the group went to Deandre L.’s house on 17th
Street. Deepak N. sat in the backseat and Luciano D. in the front
passenger seat of Morales’s car. Morales’s .40 caliber gun was on the
center console. Morales stopped in front of Post Avenue just before the
crosswalk. Their car was “a ways away” from the women’s car. The
men were sitting in Morales’s car when Deepak N. heard “a loud noise,
like a gunshot.” Morales had been looking in the rearview mirror.
About 30 seconds after the noise, Morales got out of the car and quickly
“fired some shots,” and they left the scene thereafter. Morales drove
fast, and, as he drove, checked to see how many rounds of ammunition
he had left in his gun. Morales got rid of the gun somewhere in Vallejo.
About two weeks later, the police came to Deepak N.’s house. He
jumped out of a second-story window and hid in his yard, but police
found and arrested him. Deepak N. conceded that he lied and told
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police that Morales had dropped him off before Morales and Luciano D.
“did all that shit.” Eventually, however, he told the truth.
II. DISCUSSION
We first address Morales’s challenges to his conviction and then
turn to his claims of sentencing error.
A. Prosecutorial Misconduct and Ineffective Assistance of
Counsel
Additional Background
The prosecutor made the following remarks at the end of his
closing argument:
“Finally, ladies and gentlemen, before I wrap up, we watch you.
We see you in the halls. We watch you coming in and stuff like that.
And my sense is you get along just fine. [¶] But if somebody is not
obeying the rules of the road, we got to know that.
“Here are the two ways sometimes this happens. Sometimes a
juror makes an instant decision and her Honor’s going to give you a
closing instruction that says, Don’t express strong opinions too quickly,
because that’s not usually productive in jury deliberations. [¶] But
sometimes somebody just says: Nope, I’m refusing to deliberate, made
up my mind. [¶] That’s illegal. Can’t do that. We got to know about
that, if somebody decides that. Right? [¶] And the other one is if
somebody just doesn’t want to follow the law as it’s stated, we got to
know about that too.
“Her Honor made this point a dozen times in voir dire, maybe
more, but it’s that we are not legislators here. Our job is to follow the
law. Right? [¶] The jury’s job is to follow the law. If somebody is not
doing that, somebody is refusing to deliberate or follow the law, you got
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to send out a note and let us know. I say that every time. Almost
never happens. All right.”
Analysis
Morales argues that the prosecutor committed misconduct in his
closing argument by: 1) stating that it was “illegal” for jurors to refuse
to deliberate; 2) stating that jurors must report the failure to deliberate
or follow the law after our Supreme Court discontinued use of a jury
instruction with similar language in People v. Engelman (2002)
28 Cal.4th 436 (Engelman); and 3) conveying that jurors had no power
to engage in nullification. Respondent disputes that prosecutorial
misconduct occurred and argues that Morales forfeited his claim by
failing to object below. We agree with respondent on the forfeiture
point because Morales did not object to the alleged misconduct. (People
v. Forrest (2017) 7 Cal.App.5th 1074, 1081–1082.)
Morales alternatively argues that his counsel was ineffective for
failing to object. In order to establish ineffective assistance, Morales
must show counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms, and a “reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different[,]” i.e., a probability sufficient
to undermine confidence in the outcome. (Strickland v. Washington
(1984) 466 U.S. 668, 687–688, 694 (Strickland).) A court deciding an
ineffective assistance claim need not approach the inquiry in a certain
order or even address both components of the inquiry if the defendant
makes an insufficient showing on one component. (Id. at p. 697.)
To establish that his trial counsel’s performance fell below an
objective standard of reasonableness, Morales must first show
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prosecutorial misconduct. To do so, Morales relies largely on
Engelman. In Engelman, our Supreme Court addressed the
constitutionality of a jury instruction that “inform[ed] jurors at the
outset of jury deliberations that ‘should . . . any juror refuse[ ] to
deliberate or express[ ] an intention to disregard the law or to decide
the case based on penalty or punishment, or any other improper basis,
it is the obligation of the other jurors to immediately advise the Court
of the situation.’ (CALJIC No. 17.41.1 (1998 new) (6th ed. 1996).)”
(Engelman, supra, 28 Cal.4th at p. 439.) The Supreme Court held that
giving the instruction did not violate the defendant’s federal or state
constitutional right to trial by jury or his state constitutional right to a
unanimous verdict. (Id. at pp. 439–440.) Nevertheless, the court
observed that the instruction had the potential to intrude into the
deliberative process and was unnecessary because other instructions
were adequate to guard against jury misconduct without focusing
unduly upon the deliberative process. (Id. at pp. 446–449.) “[C]aution”
thus led the court “to exercise its “supervisory power” to “direct that
CALJIC No. 17.41.1 not be given in trials conducted in the future.”
(Engelman, at pp. 440, 449.) The Supreme Court has affirmed
Engelman multiple times (People v. Rogers (2013) 57 Cal.4th 296, 340;
People v. Souza (2012) 54 Cal.4th 90, 121; People v. McKinnon (2011)
52 Cal.4th 610, 681 (McKinnon)), and it has rejected assertions of
constitutional error premised on comments from the court and
prosecution urging jurors to bring juror misconduct, including refusal
to deliberate, to the court’s attention. (People v. Barnwell (2007)
41 Cal.4th 1038, 1055.)
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Morales argues that the prosecutor’s comments here went
“further” than the instruction in Engelman, while respondent contends
that the comments were proper. Although a prosecutor’s remarks may
have less potential for intrusion on the deliberative process than a
formal instruction from the trial court (see People v. Barnwell, supra,41 Cal.4th at p. 1055), we reject respondent’s position and find the
prosecutor’s comments inappropriate in light of our Supreme Court’s
clear statement that telling a jury to report misconduct by fellow jurors
is unnecessary and risks intruding into the deliberative process.
(Engleman, supra, 28 Cal.4th at pp. 446–449.)
Nonetheless, because Morales’s claim fails for lack of prejudice,
we need not decide whether the prosecutor’s comments rose to the level
of misconduct (or, by extension, whether counsel’s failure to object fell
below an objective standard of reasonableness). Morales’s theory of
prejudice is that the prosecutor’s comments could have had a chilling
effect on minority views and could have prevented juror nullification.
But after closing arguments, the court instructed the jurors that they
had a duty to talk, deliberate, and follow the law; it further instructed
that each juror must decide the case for himself or herself after
discussing the evidence, and that no juror should change his or her
mind just because other jurors disagree. Morales speculates that the
prosecutor’s comments would have greater influence than the jury
instructions, but we presume the jury properly followed the
instructions. (See People v. Boyette (2002) 29 Cal.4th 381, 436 [alleged
prosecutorial misconduct not prejudicial when trial court properly
instructed on the law because jury presumed to have followed
instructions].) Morales points to no evidence of juror conflict, a refusal
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to deliberate, or any explicit or implicit expressions of an intent to
disregard the law. 2 (McKinnon, supra, 52 Cal.4th at p. 681 [upholding
the use of CALJIC No. 17.41.1 in a pre-2002 trial and also finding no
basis for reversal as defendant “points to nothing in the record of this
case that indicates any juror refused to deliberate or expressed an
intention to disregard the law or to decide the case on an improper
basis”].) And Morales cannot rely on the possibility of juror
nullification to show prejudice. (Strickland, supra, 466 U.S. at p. 695
[assessment of the likelihood of a result more favorable to the
defendant must exclude the possibility of “nullification”].) In sum,
Morales has not established prejudice from the prosecutor’s remarks.
B. Alleged Error From the Kill Zone Instruction
After Morales’s conviction, the Supreme Court clarified the
circumstances that allow for a kill zone instruction on an attempted
murder charge in People v. Canizales (2019) 7 Cal.5th 591 (Canizales).
Morales challenges his attempted murder conviction, arguing that
there was insufficient evidence to support a kill zone instruction and
that the instruction given was erroneous after Canizales.
The Kill Zone Theory of Attempted Murder
“To prove the crime of attempted murder, the prosecution must
establish ‘the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing.’ [Citation.]
When a single act is charged as an attempt on the lives of two or more
2 We note that no such indications occurred in this case. The jury
deliberated for approximately seven and a half hours over the course of
two days, asking a single question about whether the “purpose”
referred to in the lying-in-wait murder instruction specifically referred
to the defendant’s purpose to kill. The jury then reached a verdict.
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persons, the intent to kill element must be examined independently as
to each alleged attempted murder victim; an intent to kill cannot be
‘transferred’ from one attempted murder victim to another under the
transferred intent doctrine.” (Canizales, supra, 7 Cal.5th at p. 602.)
The kill zone theory, first expressly embraced by Supreme Court
in People v. Bland (2002) 28 Cal.4th 313, 329–330, provides a theory by
which a defendant can be found guilty of the attempted murder of
victims who were not the defendant’s “primary target.” “[A]lthough the
intent to kill a primary target does not transfer to a survivor, the fact
the person desires to kill a particular target does not preclude finding
that the person also, concurrently, intended to kill others within what
it termed the ‘kill zone’ ” for attempted murder. (Id. at p. 329.) This
theory is illustrated by the following hypothetical. “[C]onsider a
defendant who intends to kill A and, in order to ensure A’s death,
drives by a group consisting of A, B, and C, and attacks the group with
automatic weapon fire or an explosive device devastating enough to kill
everyone in the group. The defendant has intentionally created a ‘kill
zone’ to ensure the death of his primary victim, and the trier of fact
may reasonably infer from the method employed an intent to kill others
concurrent with the intent to kill the primary victim. When the
defendant escalated his mode of attack from a single bullet aimed at A’s
head to a hail of bullets or an explosive device, the factfinder can infer
that, whether or not the defendant succeeded in killing A, the
defendant concurrently intended to kill everyone in A’s immediate
vicinity to ensure A’s death.” (Id. at p. 330.)
In Canizales, the Supreme Court clarified the kill zone theory,
holding “that a jury may convict a defendant under the kill zone theory
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only when the jury finds that: (1) the circumstances of the defendant’s
attack on a primary target, including the type and extent of force the
defendant used, are such that the only reasonable inference is that the
defendant intended to create a zone of fatal harm—that is, an area in
which the defendant intended to kill everyone present to ensure the
primary target’s death—around the primary target; and (2) the alleged
attempted murder victim who was not the primary target was located
within that zone of harm.” (Canizales, supra, 7 Cal.5th at pp. 596–
597.) “In determining the defendant’s intent to create a zone of fatal
harm and the scope of any such zone, the jury should consider the
circumstances of the offense, such as the type of weapon used, the
number of shots fired (where a firearm is used), the distance between
the defendant and the alleged victims, and the proximity of the alleged
victims to the primary target. Evidence that a defendant who intends
to kill a primary target acted with only conscious disregard of the risk
of serious injury or death for those around a primary target does not
satisfy the kill zone theory.” (Id. at p. 607.)
The Supreme Court further observed, “[a]s past cases reveal,
there is a substantial potential that the kill zone theory may be
improperly applied, for instance, where a defendant acts with the
intent to kill a primary target but with only conscious disregard of the
risk that others may be seriously injured or killed.” (Canizales, supra,
7 Cal.5th at p. 597.) “[T]rial courts must be extremely careful in
determining when to permit the jury to rely upon the kill zone theory”
(ibid.), and “there will be relatively few cases in which the theory will
be applicable and an instruction appropriate” (id. at p. 608).
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In Canizales, five shots were fired at a man, who the jury could
have concluded was a primary target, and the man’s companion from
100 feet away at a block party on a public street. The shots were “going
everywhere” and killed an innocent bystander rather than the primary
target. (Canizales, supra, 7 Cal.5th at p. 611.) The court concluded,
“The evidence presented here showed that from a substantial distance
[the defendant] shot five bullets in the direction of a target who
immediately ran down a city street after the first shot was fired. This
evidence was insufficient to support instruction on the kill zone theory.”
(Ibid.)
The Attempted Murder Instruction Given
Morales was charged with attempted murder of “an occupant of a
1991 Blue Cadillac parked in front of 1707 17th Street in San Pablo.”
The jury instruction, which was based on CALCRIM No. 600, required
the prosecution to prove: “1. The defendant took at least one direct but
ineffective step toward killing another person; [¶] AND [¶] 2. The
defendant intended to kill that person.” The trial court also instructed
on a kill zone theory: “A person may intend to kill a specific victim or
victims and at the same time intend to kill everyone in a particular
zone of harm or ‘kill zone.’ [¶] In order to convict the defendant of the
attempted murder of the occupants of a blue Cadillac parked in front of
1707 17th Street in San Pablo, CA, the People must prove that the
defendant not only intended to kill the occupants of a blue Cadillac
parked in front of 1707 17th Street in San Pablo, CA but also either
intended to kill one of the occupants of a blue Cadillac parked in front
of 1707 17th Street in San Pablo, CA, or intended to kill everyone
within the kill zone. [¶] If you have a reasonable doubt whether the
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defendant intended to kill occupants of a blue Cadillac parked in front
of 1707 17th Street in San Pablo, CA or intended to kill occupants of a
blue Cadillac parked in front of 1707 17th Street in San Pablo, CA by
killing everyone in the kill zone, then you must find the defendant not
guilty of the attempted murder of the occupants of a blue Cadillac
parked in front of 1707 17th Street in San Pablo, CA.”
Analysis
Morales first argues that the evidence was insufficient to support
the kill zone instruction. The kill zone theory cannot be used unless (1)
the defendant has a primary target, (2) the defendant harbors the
intent to annihilate everyone within the kill zone in order to make sure
he or she kills the primary target, and (3) the alleged victim of the
attempted murder, “who was not the primary target,” was inside the
kill zone. (See Canizales, supra, 7 Cal.5th at pp. 597, 607, italics
added.) Preliminarily, we note that this case was not tried as a kill
zone case. The prosecutor alluded to the inside of the Cadillac when
attempting to explain the kill zone instruction briefly in his closing
argument, but he made no effort to identify nontargeted victims.
Rather, he argued that Morales specifically intended to kill Gustavo D.,
Elias Q., and Deandre L., and that Morales also intended to kill
whomever he could in the Cadillac, so he was responsible for attempted
murder of Gustavo D. and Elias Q. The kill zone jury instruction here
identified “the occupants” of the Cadillac as the primary targets. Only
one count of attempted murder was charged, and, according to the
prosecutor’s theory, there was no nontargeted victim. In the absence of
evidence of primary targets and a nontargeted victim of the attempted
17
murder charge, a kill zone theory would not apply. (Canizales, supra,
7 Cal.5th at p. 597.)
But even assuming the jury should not have been instructed on
the kill zone theory because the evidence was insufficient to support a
kill zone instruction, any error in giving the instruction was not
prejudicial under Chapman v. California (1967) 386 U.S. 18, 24
(Chapman). 3 (Canizales, supra, 7 Cal.5th at p. 614; People v.
Aledamat, supra, 8 Cal.5th 1, 13.) Error is harmless if the record
shows “beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” (Chapman, at p. 24.) In other
words, we must determine “ ‘whether it is clear beyond a reasonable
doubt that a rational jury would have rendered the same verdict absent
the error.’ ” (Canizales, at p. 615.) Reversal is required if there is “ ‘a
reasonable possibility’ ” that the error may have contributed to the
verdict. (Chapman, at p. 24.)
Morales contends that the instruction was prejudicial because it
equated the primary targets and the nontargeted victims, but the
instruction’s wording actually dispels a finding of prejudice. Under the
kill zone instruction, the jury was told, “In order to convict the
defendant of the attempted murder of the occupants of a blue Cadillac
3 We agree with the parties that Chapman’s harmless error
standard applies. As in Canizales, the jury was instructed adequately
on a specific intent to kill theory, but the kill zone instruction here was
similar to the instruction deemed inadequate in Canizales (see
Canizales, supra, 7 Cal.5th at p. 613), and, as discussed, post, the
prosecutor did not accurately explain a kill zone theory. Therefore, as
in Canizales, “there is a ‘ “reasonable likelihood” ’ that the jury
understood the kill zone theory in a legally impermissible manner.”
(Ibid.) When the jury is instructed on a legally inadequate theory,
Chapman applies. (People v. Aledamat (2019) 8 Cal.5th 1, 13.)
18
parked in front of 1707 17th Street in San Pablo, CA, the People must
prove that the defendant not only intended to kill the occupants of a
blue Cadillac parked in front of 1707 17th Street in San Pablo, CA but
also either intended to kill one of the occupants of a blue Cadillac
parked in front of 1707 17th Street in San Pablo, CA, or intended to kill
everyone within the kill zone.” (Italics added.) While awkwardly
worded, the instruction could not have prejudiced Morales because a
conviction thereunder expressly required the jury to find that Morales
intended to kill all occupants of the Cadillac. In People v. Tran (2018)
20 Cal.App.5th 561 (Tran), where a kill zone instruction erroneously
listed the same person as the primary target and the nontargeted
victim, the court rejected a similar assertion of prejudice. 4 While the
instruction “could very well have prejudiced the prosecution, insofar as
it effectively deprived it of the opportunity to obtain a conviction for
attempted murder based on the theory of concurrent intent . . . it could
not possibly have prejudiced [the defendant] because it expressly
required the jury to find he harbored the intent to kill [the person
alleged to be the primary target and victim] in order to convict him of
that offense.” (Id. at p. 565, italics removed.)
4 The instruction in Tran stated, “A person may intend to kill a
specific victim or victims and at the same time intend to kill everyone
in a particular zone of harm or kill zone. [¶] In order to convict the
defendant of the attempted murder of Roger James, the People must
prove that the defendant not only intended to kill Roger James but also
either intended to kill Roger James or intended to kill everyone within
the kill zone. If you have a reasonable doubt whether the defendant
intended to kill Roger James or intended to kill Roger James by killing
everyone in the kill zone, then you must find the defendant not guilty of
the attempted murder of Roger James.” (Tran, supra, 20 Cal.App.5th
at pp. 565.)
19
Further, in his brief comment in closing argument on the kill
zone instruction, the prosecutor did not actually articulate a kill zone
theory. He said, “Man, when the lawyers who set out to write this stuff
threw down their gauntlets, they made it stick on kill zone. It’s a little
bit hard to follow what’s in the CALCRIM instruction for kill zone. But
essentially it means this. If the defendant aimed down the street at
that Cadillac, which he did, and was hoping to kill whomever he can
kill in the Cadillac—Gustavo, Elias, hoping to kill Deandre. Deandre
wasn’t out of the house yet. But he was still hoping to kill those
people—and his goal was to kill whomever he could kill, he’s
responsible for attempted murder against Gustavo and Elias. [¶] His
intent to kill whomever he can kill in the Cadillac makes him guilty for
trying to kill them.” Aside from this comment, counsel said nothing
about the kill zone theory. Instead, he argued that this was an express
malice attempted murder case wherein Morales shot with the intent to
kill Gustavo D., Elias Q., and Deandre L. Given the prosecutor’s
argument and the fact that the kill zone instruction explicitly required
the jury to find that Morales “intended to kill the occupants of [the]
Cadillac,” any error here was harmless under Chapman.
C. The Section 12022.53(d) Firearm Use Enhancement for Count
1
Additional Background
For count 1, the murder of Ilaysia M., the information alleged
that Morales personally and intentionally discharged a firearm causing
great bodily injury and death to Ilaysia M. “within the meaning of [the
firearm enhancement set forth in] section 12022.53(d).”
20
The trial court gave a modified version of CALCRIM No. 3149,
the jury instruction applicable to a section 12022.53(d) enhancement,
as follows: “If you find the defendant guilty of the crimes charged in
Counts 1 through 4, or of attempting to commit those crimes, you must
then decide whether, for each crime, the People have proved the
additional allegation that the defendant personally and intentionally
discharged a firearm during that crime causing great bodily injury or
death. You must decide whether the People have proved this allegation
for each crime and return a separate finding for each crime.” “To prove
this allegation, the People must prove that: [¶] 1. The defendant
personally discharged a firearm during the commission or attempted
commission of that crime; [¶] 2. The defendant intended to discharge
the firearm; AND [¶] 3. The defendant’s act caused great bodily injury
to or the death of a person or fetus.” (Italics added.) Thus, the foregoing
italicized third element omitted the phrase “who was not an accomplice
to the crime.” 5 (CALCRIM. No. 3149.)
In connection with count 1, the jury found true that Morales
“personally and intentionally discharged a firearm, a handgun, which
caused great bodily injury and death to llaysia [M.]” within the
5 The unmodified version of CALCRIM No. 3149 also includes a
bracketed definition of “accomplice”: “[A person is an accomplice if he
or she is subject to prosecution for the identical crime charged against
the defendant. A person is subject to prosecution if he or she
committed the crime or if: [¶] 1. He or she knew of the criminal purpose
of the person who committed the crime; [¶] AND [¶] 2. He or she
intended to, and did in fact, (aid, facilitate, promote, encourage, or
instigate the commission of the crime/ [or] participate in a criminal
conspiracy to commit the crime).]
21
meaning of section 12022.53(d). As a result, the court imposed but
stayed a consecutive term of 25 years to life.
Analysis
Section 12022.53(d) authorizes a term enhancement of 25 years
to life when the defendant, “in the commission of a felony specified in
subdivision (a) . . . personally and intentionally discharges a firearm
and proximately causes great bodily injury . . . or death, to any person
other than an accomplice.” Morales argues that Ilaysia M. was an
accomplice (as an aider and abettor and/or coconspirator) to the crime
of disturbing the peace (§ 415, subd. (1) 6), and the court denied him due
process of law by modifying CALCRIM No. 3149 to eliminate the need
for the jury to determine whether Ilaysia M. was a “person other than
an accomplice” (§ 12022.53(d)). We review Morales’s claim of
instructional error de novo. (People v. Selivanov (2016) 5 Cal.App.5th
726, 751.)
Following People v. Flores (2005) 129 Cal.App.4th 174 (Flores), on
which Morales relies, we agree that the court erred when it omitted the
accomplice language from the jury instruction on the section
12022.53(d) enhancement for count 1. Flores addressed the question of
whether the jury should have been instructed on section 12022.53(d)’s
accomplice language when the enhancement attached to a charge of
murder of a man (Valdivia) committed during a battery on a rival gang
member (Morales) that Valdivia conspired with the defendant to
commit. (Id. at p. 182.) While Valdivia engaged in a fistfight with
6 Under subdivision (1) of section 415, it is illegal to “unlawfully
fight[ ] in a public place or challenge[ ] another person in a public place
to fight.”
22
Morales, the defendant shot at Morales but hit and killed Valdivia. (Id.
at pp. 178–179.) As here, the trial court failed to include the words
“other than an accomplice” in its jury instruction on this enhancement.
(Id. at pp. 178, 180–181.) The Attorney General conceded instructional
error on appeal, but argued the error was harmless because an
“accomplice” means one “chargeable with the same offense as the
defendant who is being tried” (see § 1111), and “one cannot be charged
as an accomplice to one’s own murder.” (Flores, supra, 129 Cal.App.4th
at p. 182.)
The appellate court rejected the Attorney General’s argument,
noting that if it were to accept the argument, section 12022.53(d)’s
accomplice exception would never apply to a count charging the
accomplice’s murder. (Id. at p. 182.) The court reasoned that the
Legislature could not have intended this result because, in enacting
section 12022.53(d), the Legislature “apparently decided that killing
one’s accomplice is less blameworthy (or at least less deserving of
punishment) than killing a nonaccomplice.” (Id. at p. 181.) The court
commented that, “[h]ad [Flores’s] shot hit only Morales or Morales and
some other person” (ibid.)—in other words, had Valdivia survived—
Valdivia “would surely have been charged as a coconspirator and an
aider and abettor of defendant’s crimes, i.e., an accomplice.” (Ibid.)
Thus, to address the inconsistency that would otherwise result, Flores
found that “when determining whether the accomplice exception
applies to [the murder of Valdivia] in the instant case, and to avoid
writing the exception out of the statute, the relevant question must be
whether Valdivia was an accomplice to the intended crime, the natural
and probable consequence of which was the intentional discharge of a
23
firearm resulting in his own death.” (Ibid.) The court concluded that a
jury could have found Valdivia was the defendant’s coconspirator.
(Ibid.) “Valdivia’s status as a coconspirator to commit a battery on
Morales would make him defendant’s accomplice to that crime, which
resulted in his own murder.” (Id. at p. 183.) Thus, the court found
prejudicial error resulted from the flawed jury instruction. (Ibid.)
Under Flores, the accomplice exception could have applied to
count 1’s section 12022.53(d) enhancement. Section 415 makes it a
crime to unlawfully fight in a public place or challenge another person
in a public place to fight (§ 415, subd. (1)), and there was sufficient
evidence for the jury to find that Morales (who was armed), Ilaysia M.,
and Ilaysia M.’s friends conspired to violate section 415, which resulted
in Ilaysia M.’s death. (Flores, supra, 129 Cal.App.4th at p. 183; see
People v. Vu (2006) 143 Cal.App.4th 1009, 1024 [criminal conspiracy
requires proof of: an agreement between two or more people; who have
the specific intent to agree or conspire to commit an offense; the specific
intent to commit that offense; and an overt act committed by one or
more of the parties to the agreement for the purpose of carrying out the
conspiracy’s object].)
Respondent does not argue that Flores was wrongly decided, and
instead attempts to distinguish this case by characterizing the intended
crime to be murder of the Cadillac’s occupants. We find this argument
unavailing because respondent does not acknowledge that the evidence
is sufficient for a reasonable juror to conclude that Morales and Ilaysia
M. conspired to violate section 415, and Flores involved an analogous
set of circumstances where the defendant shot at Morales during a
battery that he and Valdivia conspired to commit. (Flores, supra,
24
129 Cal.App.4th at pp. 182–183 [noting sufficient evidence from which
a jury could have found that Flores and Valdivia conspired to commit a
battery upon Morales, the natural and probable consequences of which
was the firearm discharge that killed co-conspirator Valdivia].) We
further reject respondent’s attempt to distinguish Flores on the basis
that the defendant there was convicted of conspiracy to commit battery.
The prosecution’s election not to charge Morales with a conspiracy to
violate section 415 in addition to the serious crimes charged is not
dispositive of the inquiry as to whether Ilaysia M. could have been an
accomplice to the crime she and Morales intended to commit—section
415—the natural and probable consequence of which, in these
circumstances, was the intentional discharge of a firearm resulting in
her death. Under Flores, this is the inquiry that is relevant and
required to avoid reading the accomplice exception out of section
12022.53(d) where the crime charged is murder and an alleged
accomplice is the murder victim. (Flores, at pp. 182–183.)
The failure to permit the jury to determine if Ilaysia M. was an
accomplice for purposes of the section 12022.53(d) enhancement on
count 1 is not harmless under Chapman, supra, 386 U.S. 18, or People
v. Watson (1956) 46 Cal.2d 818. (Flores, supra, 129 Cal.App.4th at
p. 183.) We thus strike the section 12022.53(d) enhancement on count
1. (Flores, at pp. 178, 183, 188.) 7 In striking this enhancement on
7 Morales incorrectly states that the remedy for the error in
Flores was to reduce the section 12022.53(d) enhancement to one
without an accomplice exception, such as section 12022.53, subdivision
(c). In fact, the Flores court struck the section 12022.53(d)
enhancement. (Flores, supra, 129 Cal.App.4th at pp. 178, 183, 188.)
Respondent does not contend that a section 12022.53, subdivision (c)
enhancement should be imposed if we find reversible error.
25
appeal, we observe that the trial court showed leniency to Morales by
staying the sentences on all the firearm-use enhancements. In light of
this purposeful show of leniency, it is unlikely that the trial court
would impose a firearm use enhancement on count 1 if the matter were
remanded, retried, and a properly instructed jury found the
enhancement true. (§ 12022.53, subd. (h) [trial court has discretion to
strike or dismiss an enhancement found true].) Therefore, in the
interest of judicial economy, we do not remand the matter for retrial on
the firearm use enhancement for count 1.
D. Sentencing Error on Counts 1 and 2
Defendant was charged with two counts of murder with a
multiple murder special circumstance allegation. The jury found the
special circumstance allegation true. The court imposed an LWOP
sentence for the special circumstance, and two consecutive terms of 25
years to life for counts 1 and 2. 8 We agree with the parties that this
sentence was unauthorized under section 190.2, subdivision (a)(3).
Section 190.2, subdivision (a)(3) provides for a sentence of death
or LWOP in a case in which the defendant has been convicted of first
degree murder and more than one offense of murder in the first or
second degree in the same proceeding. No matter how many murder
charges are tried together, only a single multiple murder special
circumstance may be alleged. (People v. Anderson (1987) 43 Cal.3d
1104, 1150, superseded by statute on another point as recognized in
People v. Letner and Toben (2010) 50 Cal.4th 99, 163, fn. 20.) However,
the special circumstance applies to each murder count for which the
8The trial court intended the terms to run consecutively, noting
there were different victims.
26
defendant was convicted, and where, as here, the prosecution does not
seek the death penalty, the LWOP sentence is applied to each count.
(People v. Garnica (1994) 29 Cal.App.4th 1558, 1563–1564.) There is no
statutory authority to impose an LWOP term for the special
circumstance itself, as the trial court did in this case. Therefore, we
will direct that the abstract of judgment be corrected to reflect a
sentence of LWOP for the murder counts but not the special
circumstance finding itself, and to eliminate the terms of 25 years to
life on the murder counts. 9
E. Remand Is Unnecessary under Section 12022.53(h)
Senate Bill No. 620, effective January 1, 2018, added the
following language to section 12022.53: “The court may, in the interest
of justice pursuant to Section 1385 and at the time of sentencing, strike
or dismiss an enhancement otherwise required to be imposed by this
section. The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.” (§ 12022.53,
subd. (h); Stats. 2017, ch. 682, § 2.) This new legislation granted trial
courts discretion to strike firearm use enhancements that they did not
previously possess. Morales contends that this case must be remanded
because the trial court did not understand that it had the discretion to
strike the firearm use enactments under this provision. We disagree.
9 Morales does not argue that we cannot correct the unauthorized
sentence on appeal. He instead asserts that remand is necessary so
that the trial court can exercise its sentencing discretion under section
12022.53, subdivision (h), and so that he may have an adequate
opportunity to make a record of information that will be relevant at
youthful offender parole hearing. As explained, post, Morales is not
entitled to remand on the grounds he claims, so we will order correction
of the unauthorized sentences.
27
Contrary to Morales’s claim, nothing in the record suggests that
the trial court was unaware of its discretion under section 12022.53,
subdivision (h). “[I]n light of the presumption on a silent record that
the trial court is aware of the applicable law, including statutory
discretion at sentencing, we cannot presume error where the record
does not establish on its face that the trial court misunderstood the
scope of that discretion.” (People v. Gutierrez (2009) 174 Cal.App.4th
515, 527.) Remand for resentencing is only appropriate where the
record affirmatively demonstrates the trial court misunderstood the
scope of its discretion. (People v. Sotomayor (1996) 47 Cal.App.4th 382,
391; People v. Furhman (1997) 16 Cal.4th 930, 944.) The trial court
sentenced Morales one year and five months after Senate Bill No. 620
became effective. Morales is correct that the materials and argument
at his sentencing hearing did not touch upon the court’s discretion
under section 12022.53, subdivision (h), but that merely shows a silent
record. Although the trial court stated that it lacked discretion
regarding Morales’s LWOP sentence in light of the special circumstance
finding, the court did not comment on its discretion to strike the
firearm use enhancements, and the court showed leniency by staying
the sentences for the firearm use enhancements. In the absence of any
affirmative representation by the trial court that it believed it could not
dismiss the firearm use enhancements, we presume the court
understood the scope of its discretion and did not commit error. 10
10The parties do not argue that the court erred in staying the
sentences on the firearm use enhancements.
28
F. Equal Protection
Morales raises equal protection challenges to statutes that allow:
(1) juvenile LWOP offenders to petition for recall and resentencing
after a certain period of incarceration (§ 1170, subd. (d)(2) (section
1170(d)(2)); (2) the trial court to exercise discretion to sentence
juveniles over the age of 16 but under the age of 18 who are convicted of
first degree murder with special circumstances to LWOP or 25 years to
life (§ 190.5, subd. (b) (section 190.5(b)); and (3) juvenile LWOP and
young adult non-LWOP offenders to be considered for youthful parole
hearings (§ 3051, subds. (b)(1)–(4), (h)). Because Morales’s offenses
occurred when he was 21, he will not benefit from these statutes. The
facial challenges that he raises to his exclusion may be raised for the
first time on appeal. (People v. Edwards (2019) 34 Cal.App.5th 183,
192 (Edwards).)
Governing Constitutional Principles
“The Fourteenth Amendment to the United States Constitution
and article I, section 7 of the California Constitution guarantee all
persons the equal protection of the laws.” (Edwards, supra,
34 Cal.App.5th at p. 195.) “The right to equal protection of the law is
violated when ‘the government . . . treat[s] a [similarly situated] group
of people unequally without some justification.’ ” (People v. Love (2020)
55 Cal.App.5th 273, 287.)
The principles by which we evaluate a claimed equal protection
violation are well established. Where there are no suspect classes or
fundamental rights at issue, we apply rational basis review. (People v.
Chatman (2018) 4 Cal.5th 277, 288–289 (Chatman).) Rational basis
review “sets a high bar before a law is deemed to lack even the minimal
29
rationality necessary for it to survive constitutional scrutiny. Coupled
with a rebuttable presumption that legislation is constitutional, this
high bar helps ensure that democratically enacted laws are not
invalidated merely based on a court’s cursory conclusion that a
statute’s tradeoffs seem unwise or unfair.” (Id. at p. 289.)
“In order to decide whether a statutory distinction is so devoid of
even minimal rationality that it is unconstitutional as a matter of equal
protection, we typically ask two questions. We first ask whether the
state adopted a classification affecting two or more groups that are
similarly situated in an unequal manner. [Citation.] If we deem the
groups at issue similarly situated in all material respects, we consider
whether the challenged classification ultimately bears a rational
relationship to a legitimate state purpose. [Citation.] A classification
in a statute is presumed rational until the challenger shows that no
rational basis for the unequal treatment is reasonably conceivable.
[Citation.] . . . [Citation.] Nor does the logic behind a potential
justification need to be persuasive or sensible—rather than simply
rational.” (Id. at p. 289.) “A law will be upheld as long as a court can
‘speculat[e]’ any rational reason for the resulting differential treatment,
regardless of whether the ‘speculation has “a foundation in the record,”
’ regardless of whether it can be ‘empirically substantiated,’ and
regardless of whether the Legislature ever ‘articulated’ that reason
when enacting the law.” (People v. Love, supra, 55 Cal.App.5th at
p. 287, quoting People v. Turnage (2012) 55 Cal.4th 62, 74.) As a result,
“[t]o mount a successful rational basis challenge, a party must ‘
“negative every conceivable basis” ’ that might support the disputed
30
statutory disparity.” (Johnson v. Department of Justice (2015)
60 Cal.4th 871, 881.)
Sections 1170(d)(2) and 190.5(b)
Morales contends that section 1170(d)(2) 11, which allows juvenile
LWOP offenders to petition for recall and resentencing after 15 years of
incarceration, violates his constitutional rights to equal protection of
the law because it does not apply to youthful adult LWOP offenders like
him, who were between the ages of 18 and 25 when they committed
their crimes. He makes a similar argument regarding section
190.5(b) 12. A different panel of this Division rejected an identical equal
protection challenge to section 1170(d)(2) in In re Jones (2019)
42 Cal.App.5th 477 (Jones), and we find Jones’s reasoning to be
persuasive and applicable to Morales’s challenges to sections 1170(d)(2)
and 190.5(b).
In Jones, the defendant was an LWOP offender who committed
his crimes when he was 19, and he claimed his inability to petition for
11This statute provides, subject to certain exceptions, that
“[w]hen a defendant who was under 18 years of age at the time of the
commission of the offense for which the defendant was sentenced to
imprisonment for life without the possibility of parole has been
incarcerated for at least 15 years, the defendant may submit to the
sentencing court a petition for recall and resentencing.” (§ 1170,
subd. (d)(2)(A)(i).)
12 This subdivision provides, “The penalty for a defendant found
guilty of murder in the first degree, in any case in which one or more
special circumstances enumerated in Section 190.2 or 190.25 has been
found to be true under Section 190.4, who was 16 years of age or older
and under the age of 18 years at the time of the commission of the
crime, 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).)
31
resentencing under section 1170(d)(2) violated his right to equal
protection. (Jones, supra, 42 Cal.App.5th at p. 480.) He argued that
the “ ‘underlying rationale’ ” of section 1170(d)(2) is that “ ‘young people
are different developmentally and neurologically’ from older offenders,”
and “young adults who are between 18 and 25 when they commit their
LWOP offenses are similarly situated to juvenile LWOP offenders
because they also have developing brains, lack maturity, and have
increased potential for rehabilitation.” (Id. at p. 481.) The court
observed that, while the Legislature may well have been concerned
about the developmental differences between youth and adults, the
statute was more specifically aimed at providing relief only for those
under 18 when they committed their crimes. (Ibid.) Jones held that,
“[b]ecause LWOP offenders who were between the ages of 18 and 25
when they committed their offenses are adult offenders they are not
similarly situated to juvenile offenders described in section 1170(d)(2).”
(Id. at p. 481.) Jones further held that the Legislature had a rational
basis for section 1170(d)(2)’s distinction between juvenile and adult
LWOP offenders. “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 1170(d)(2) to individuals who committed their crimes before
they were 18 years old.” (Id. at p. 483.) We see no reason to disagree
with Jones, and its rationale applies as well to section 190.5(b). We
thus reject Morales’s equal protection challenges to these statutes.
32
Section 3051
Under section 3051, a person convicted of a controlling offense 13
committed as a juvenile and sentenced to LWOP shall be eligible for a
youthful offender parole hearing, but a person sentenced to LWOP for a
controlling offense committed after the person turned 18 is not entitled
to such a hearing. (§ 3051, subds. (b)(4), (h).) Additionally, a person
convicted of a controlling offense committed between the ages of 18 to
25 (hereinafter, a youthful offender) who received a determinate
sentence, an indeterminate sentence of 25 years to life, or an
indeterminate life term of less than 25 years is eligible to petition for a
youthful offender parole hearing, but a youthful LWOP offender is not.
(§ 3051, subds. (b)(1)–(3), (h).) Morales asserts that section 3051
violates his right to equal protection because it denies parole hearings
to youthful LWOP offenders, but grants such hearings to juvenile
LWOP offenders and youthful non-LWOP offenders. We review these
claims de novo (California Grocers Assn. v. City of Los Angeles (2011)
52 Cal.4th 177, 208; People v. Ramos (1997) 15 Cal.4th 1133, 1154), and
we conclude they lack merit.
a. The Statute’s History and Purpose
The Legislature enacted section 3051 in response to decisions
from the United States and California Supreme Courts concerning
13 “ ‘Controlling offense’ means the offense or enhancement for
which any sentencing court imposed the longest term of imprisonment.”
(§ 3051, subd. (a)(2)(B).)
33
Eighth Amendment limitations on juvenile sentencing 14 that, in turn,
rested on developments in science and social science showing
fundamental differences between juvenile and adult minds and parts of
the brain involved in behavior control. (People v. Acosta (2021)
60 Cal.App.5th 769, 775–776 (Acosta).) “The Legislature passed
[section 3051] explicitly to bring juvenile sentencing into conformity
with Graham, Miller, and Caballero.” (People v. Franklin (2016)
63 Cal.4th 261, 277.) In enacting section 3051, the Legislature
explained that “youthfulness both lessens a juvenile’s moral culpability
and enhances the prospect that, as a youth matures into an adult and
neurological development occurs, these individuals can become
contributing members of society.” (Stats. 2013, ch. 312, § 1.) Section
3051’s stated purpose was “to establish a parole eligibility mechanism
that provides a person serving a sentence for crimes that he or she
committed as a juvenile the opportunity to obtain release when he or
she has shown that he or she has been rehabilitated and gained
maturity, in accordance with the decision of the California Supreme
Court . . . and the decisions of the United States Supreme Court.”
(Stats. 2013, ch. 312, § 1.) Courts have recognized that the statute’s
“legislative history suggests the Legislature was motivated by dual
concerns: that lengthy life sentences did not adequately account for,
first, the diminished culpability of youth, and second, youthful
14 Graham v. Florida (2010) 560 U.S. 48, 68 (Graham) [Eighth
Amendment prohibits imposing LWOP sentence on juvenile offender
for nonhomicide offenses]; Miller v. Alabama (2012) 567 U.S. 460, 465
(Miller) [mandatory LWOP sentences for juvenile homicide offenders
violate the Eighth Amendment]; People v. Caballero (2012) 55 Cal.4th
262, 268 (Caballero) [juvenile cannot be sentenced to functional
equivalent of LWOP for a nonhomicide offense].)
34
offenders’ greater potential for rehabilitation and maturation.” (In re
Williams (2020) 57 Cal.App.5th 427, 434.)
As originally enacted, section 3051 afforded parole eligibility
hearings only to juvenile offenders, and it excluded juvenile LWOP
offenders. (Acosta, supra, 60 Cal.App.5th at pp. 776.) Relying on
scientific evidence showing that areas of the brain that affect judgment
and decision-making do not develop until early-to mid-20s, the
Legislature has since amended section 3051, first to apply to offenders
23 and under (former § 3051, subd. (a)(1), added by Stats. 2015, ch. 471,
§ 1), then to offenders 25 and under (§ 3051, subd. (b); Stats. 2017,
ch. 675, § 1).
The Legislature also amended section 3051 to allow parole
hearings for juveniles—but not youthful offenders—sentenced to
LWOP. (§ 3051, subd. (b)(4); Stats. 2017, ch. 684, § 1.) The purpose of
this amendment was to “bring California into compliance with the
constitutional requirements of [Miller] and Montgomery [v. Louisiana
(2016) 577 U.S. ___, 136 S.Ct. 718],” which held that Miller's
prohibition on mandatory LWOP sentences for juveniles was
retroactive. (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 394
(2017–2018 Reg. Sess.) Mar. 21, 2017, p. 4.) Montgomery provided that
“[a] State may remedy a Miller violation by permitting juvenile
homicide offenders to be considered for parole, rather than by
resentencing them.” (Montgomery, at p. 212.) Thus, the amendment
adding section 3051, subdivision (b)(4) sought “to remedy the now
unconstitutional juvenile sentences of life without the possibility of
parole,” without the need for “a resentencing hearing, which is time-
consuming, expensive, and subject to extended appeals.” (Sen. Com. on
35
Public Safety, Analysis of Sen. Bill No. 394 (2017–2018 Reg. Sess.) Mar.
21, 2017, p. 3.)
b. Analysis
With this background in mind, we turn first to Morales’s claim
that section 3051 violates equal protection by treating juvenile and
youthful LWOP offenders differently. Even assuming these groups are
similarly situated, Morales’s claim fails because he has not
demonstrated that the Legislature lacked a rational basis for treating
these groups in an unequal manner. As noted, the Legislature enacted
subdivision (b)(4) of section 3051 to remedy unconstitutional juvenile
LWOP sentences after Miller and Montgomery. (Sen. Com. on Public
Safety, Analysis of Sen. Bill No. 394 (2017–2018 Reg. Sess.) Mar. 21,
2017, p. 3.) But in contrast to the decisions in Miller and Montgomery,
the United States and California Supreme Courts have not held that
LWOP sentences for youthful offenders violate the Eighth Amendment.
When it comes to criminal sentencing, the United States Supreme
Court has found the line drawn between juveniles and nonjuveniles to
be a rational one (Jones, supra, 42 Cal.App.5th at pp. 482–483), and
section 3051 impacts the length of sentence served. (People v.
Franklin, supra, 63 Cal.4th at pp. 277–280 [section 3051 “superseded”
defendant’s sentence, capping the number of years a prisoner may be
imprisoned before becoming eligible for parole, and thereby mooted the
defendant’s Eighth Amendment challenge after Miller].) In this
context, we agree with our colleagues in the Fourth District that, for
purposes of LWOP offenders, the line drawn at 18 is a rational one.
(Acosta, supra, 60 Cal.App.5th at pp. 779–780 [age provides a rational
basis for section 3051’s different treatment of youthful and juvenile
36
LWOP offenders]; People v. Jackson (2021) 61 Cal.App.5th 189, 199
[same] (Jackson); cf. Jones, supra, 42 Cal.App.5th at p. 482 [“While
young adults share many of the attributes of youth, they are by
definition further along in the process of maturation, and the law need
not be blind to the difference.”].)
Relying on Edwards, supra, 34 Cal.App.5th 183, Morales next
argues that, because youthful LWOP offenders convicted of murder
with a multiple-murder special circumstance finding may have
committed murder by lying in wait, whereas a youthful non-LWOP
offender may have committed the allegedly more culpable crime of
premeditated murder, there can be no rational basis for section 3051’s
differing treatment of youthful LWOP and youthful non-LWOP
offenders. Assuming that these groups of offenders are similarly
situated for purposes of section 3051, we disagree with Morales.
In Edwards, another panel of this Division held that section 3051
violated equal protection because a sentencing scheme cannot limit the
parole opportunity of persons sentenced under section 667.61, the “One
Strike” law, more harshly than it limits the parole opportunity of those
who commit intentional first degree murder. (Edwards, supra, 34
Cal.App.5th at p. 195.) Edwards found “no rational relationship
between the disparity of treatment [of one-strike offenders and first-
degree murderers] and a legitimate governmental purpose.” (Id. at
p. 197.) Edwards reached its conclusion because murder was a more
serious offense, yet murderers were afforded a youthful parole hearing.
(Id. at pp. 192, 194–197, 199.) Edwards reasoned, “[W]e cannot ignore
United States Supreme Court teaching that no crime deserves
categorically harsher punishment than intentional first degree
37
murder.” (Id. at p. 199; see Edwards, at p. 197 [“United States
Supreme Court case law has long distinguished between such murders
and other crimes against persons, reserving the most draconian
sentences for murderers alone”].) 15
In comparing first degree murder convictions and murder
convictions with a multiple murder special circumstance, such as his,
Morales ignores that the latter type of conviction requires the
defendant to have been convicted of one first degree murder and an
additional first or second degree murder in the same proceeding.
(§ 190.2, subd. (a)(3).) “The crime [of special circumstances multiple
murder] carries a mandatory sentence of LWOP or death (§ 190.2,
subd. (a)), which are the harshest penalties available under our penal
system and are reserved for crimes of the most heinous nature.” (In re
Williams, supra, 57 Cal.App.5th at p. 436.) Unlike in Edwards, then,
the severity of the crime and the offender’s culpability provide a
rational basis for the differing treatment. As explained in Acosta, there
is “a rational basis for distinguishing between a young adult LWOP
offender and a young adult offender serving a non-LWOP sentence: the
severity of the crime committed. ‘The Legislature has prescribed an
LWOP sentence for only a small number of crimes. These are the
crimes the Legislature deems so morally depraved and so injurious as
to warrant a sentence that carries no hope of release for the criminal
15 People v. Williams (2020) 47 Cal.App.5th 475, review granted
July 22, 2020, S262191, disagreed with Edwards, and our Supreme
Court will now decide the question of whether section 3051, subdivision
(h) violates equal protection by excluding youthful one-strike offenders
from youthful offender parole consideration, while affording youthful
offenders convicted of first degree murder such consideration.
38
and no threat of recidivism for society. In excluding LWOP inmates
from youth offender parole hearings, the Legislature reasonably could
have decided that youthful offenders who have committed such
crimes—even with diminished culpability and increased potential for
rehabilitation—are nonetheless still sufficiently culpable and
sufficiently dangerous to justify lifetime incarceration.’ ” (Acosta,
supra, 60 Cal.App.5th at p. 780; Jackson, supra, 61 Cal.App.5th at
pp. 199–200 [even assuming all murderers are similarly situated with
respect to section 3051’s desire to allow youthful offenders the chance
to show they have reformed, “the difference in the underlying crimes,
and the fact that special circumstance murder is punished more
harshly, provide a rational reason for distinguishing between the two
groups of first degree murderers.”].) Section 3051’s parole eligibility
dates, which tier off the offender’s sentence for his or her controlling
offense, also demonstrate that the Legislature was cognizant of and
considered the severity of the offense and culpability associated
therewith, even within the groups of eligible offenders. (See § 3051,
subd. (b)(1)–(4).)
In sum, given the deferential standard applicable to this equal
protection challenge, and given that LWOP sentences for youthful
offenders have not been declared to violate the Eighth Amendment, we
conclude that there is a rational basis for the Legislature’s decision to
treat youthful offenders sentenced to LWOP differently than youthful
first degree murderers not sentenced to LWOP based on public safety
concerns and the desire to punish those who commit special
circumstance multiple murder more harshly than those who commit
39
first degree murder without such aggravating circumstances. (Jackson,
supra, 61 Cal.App.5th at p. 200.)
In reaching this conclusion, we acknowledge that the United
States and California Supreme Courts have recognized that certain
traits lessen a juvenile offender’s culpability, and that such traits and a
juvenile’s capacity for reform are not “crime-specific.” (Miller, supra,567 U.S. at p. 473; Caballero, supra, 55 Cal.4th at pp. 267–268.) It is,
after all, possible that a youthful offender sentenced to LWOP would
mature and prove suitable for release at some point during his or her
incarceration, just as would a juvenile sentenced to LWOP. We
therefore share the reservations expressed by the Acosta court, and join
others in urging the Legislature to reconsider the exclusion of youthful
LWOP offenders from the opportunity provided by section 3051.
(Acosta, supra, 60 Cal.App.5th at p. 781; Jones, supra, 42 Cal.App.5th
at pp. 486–487 (conc. opn. of Pollak, J.); People v. Montelongo, (2021)
55 Cal.App.5th 1016, 1041 (conc. opn. of Segal, J.), review denied Jan.
27, 2021, S265597; see Montelongo, at p. 1041 (conc. stmt. of Liu, J.,
denying review).) In so doing, however, we must also acknowledge that
“[e]qual protection analysis does not entitle the judiciary to second-
guess the wisdom, fairness, or logic of the law.” (People v. Turnage
(2012) 55 Cal.4th 62, 74.)
III. DISPOSITION
The judgment is modified by striking the sentences of 25 years to
life on counts 1 and 2, and the term of life without the possibility of
parole imposed for the multiple-murder special circumstance finding.
The superior court is ordered to impose instead a term of life without
the possibility of parole on counts 1 and 2. For count 1, the jury’s true
40
finding under section 12022.53(d) is reversed, and the 25-years-to-life
enhancement imposed upon that finding is vacated. In all other
respects, the judgment is affirmed. The clerk of the superior court is
directed to prepare an amended abstract of judgment and forward it to
the Department of Corrections and Rehabilitation.
BROWN, J.
I CONCUR:
TUCHER, J.
People v. Morales (A157644)
41
POLLAK, P.J., Concurring and Dissenting.
I concur in the analysis and conclusions in the majority opinion
with respect to all issues except the constitutionality of excluding
youthful offenders (those between 18 and 25 years of age) sentenced to
life imprisonment without the possibility of parole (LWOP) from
eligibility for eventual parole consideration pursuant to the provisions
of Penal Code section 3051. 1
I acknowledge that the majority’s conclusion on this issue is in
accord with the decisions of other courts that have considered the issue
(People v. Jackson (2021) 61 Cal.App.5th 189 (Jackson); People v.
Acosta (2021) 60 Cal.App.5th 769 (Acosta); In re Williams (2020)
57 Cal.App.5th 427, disagreed with in part by People v. Miranda (2021)
62 Cal.App.5th 162; cf. People v. Wilkes (2020) 46 Cal.App.5th 1159[exclusion of Three Strike offenders from scope of section 3051 does not
violate equal protection]). Yet I note that many of those opinions, like
the majority here, encourage the Legislature to consider repealing the
exclusion. And see the concurring statement of Justice Liu in Jackson:
“at least 11 justices of the Court of Appeal [now 13] have called for
legislative reconsideration of section 3051. [Citations.] I again echo my
colleagues in ‘invit[ing] the Legislature to reconsider whether our
evolving knowledge of brain development suggests that unalterable
judgments about individuals based on what they did between age 18
and 25 may be unjustifiable.’ ” (61 Cal.App.5th at p. __ [2021
Cal.App.Lexis 152 at p. **22] (conc. stmt. of Liu, J.).) While I again join
in urging the Legislature to reconsider the matter, I respectfully
1 All statutory references are to the Penal Code.
1
contend that the exclusion is fundamentally irrational and denies
youthful offenders sentenced to LWOP equal protection of the law.
The principles governing equal protection analysis are correctly
stated in the majority opinion and need not be repeated at length. In
short, it must be determined whether the disfavored party is similarly
situated with those treated more favorably by the statue in question
and, if so, whether there is a rational basis for the difference in
treatment.
I do not question that the difference between the treatment of
minors convicted of LWOP offenses and youthful offenders sentenced to
LWOP does not violate equal protection principles. The justification for
treating minors more favorably than adults is so well rooted in our law
that I do not question it. However, in my view, equal protection
principles do not justify denying parole consideration under section
3051 to youthful offenders sentenced to LWOP while affording youthful
offenders sentenced to life imprisonment with the possibility of parole
the right to consideration under that statute.
The two groups of offenders are similarly situated for the purpose
of considering their treatment under section 3051 in that both have
been sentenced to life imprisonment. Both groups committed their life
crimes during the stage of their lives that has been recognized to
precede full neurological development of behavioral controls. Some
courts considering this issue have agreed or assumed that this
similarity satisfies the first prong of equal protection analysis. (Acosta,
supra, 60 Cal.App.5th at pp. 778–779.) 2 As to those that claim the
2The majority opinion in Williams agreed that “youth offenders
sentenced to LWOP and those sentenced to a parole-eligible life terms
2
groups are dissimilar because their sentences are different (see
Jackson, supra, 61 Cal.App.5th at p. 199), I agree with Justice Dato’s
reasoning in his concurrence in Jackson, rejecting the significance of
this distinction: “where a facial classification is challenged there will
always be differences between two groups, and to state that the
relevant groups are not ‘similarly situated’ is in many respects
announcing the conclusion before performing the analysis. As the
Supreme Court has explained, rejecting a constitutional challenge at
the outset by finding that two groups are not ‘similarly situated’ would
have the effect of ‘insulat[ing] the challenged . . . statute[] from any
meaningful equal protection review.’ ” (Id. at p. 201 (conc. opn. of Dato,
J.).) The majority here does not disagree that the two groups of
youthful offenders sentenced to life imprisonment are similarly
situated for this purpose. The question is whether there is a rational
basis for including one and excluding the other from the re-evaluation
afforded by section 3051.
In determining whether there is a rational basis for the
distinction drawn by section 3051, the purpose of the statute is critical.
Section 3051 is not a sentencing statute. Although whether the section
are similarly situated with respect to the Legislature’s second goal—
i.e., to account for youthful offenders’ potential for growth and
rehabilitation. Applying the legislative findings, one 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 are equally likely to demonstrate improved
judgment and decision-making as they reach emotional and cognitive
maturity.” (In re Williams, supra, 57 Cal.App.5th at p. 435.) However,
the court felt they were not “similarly situated with respect to the
Legislature’s first goal, which is to calibrate sentences in accordance
with youthful offenders’ diminished culpability.” (Ibid.)
3
applies may of course affect the length of a person’s imprisonment,
section 3051 is not designed to determine the sentence that is
appropriate for the crime the particular person has committed. Other
provisions, including sections 190 and 190.2, are designed to do that. In
contrast, section 3051 is intended to permit evaluation of whether, over
an extended period of incarceration, an individual who committed a
serious crime while still youthful has been rehabilitated and can be
released from custody without risk to the public.
As recited at length in prior opinions (Acosta, supra,
60 Cal.App.5th at pp. 776–777; Jackson, supra, 61 Cal.App.5th at
p. 194; In re Williams, supra, 57 Cal.App.5th at pp. 431–432; People v.
Montelongo (2020) 55 Cal.App.5th 1016, __ [2020 Cal.App. Lexis 956,
p. *40] (conc. stmt. of Liu, J.); In re Jones (2019) 42 Cal.App.5th 477,
486–487 (conc. opn. of Pollak, J.)), and acknowledged in the majority
opinion here (ante, pp. 34–35), the Legislature has recognized the body
of scientific knowledge showing that the areas of a person’s brain
affecting judgment and decision-making continue to develop at least
through the age of 25. 3 That is the reason for which section 3051 was
3 See also Arnett, Emerging Adulthood: The Winding Road from
the Late Teens Through the Twenties (2d ed. 2015) pages 266–270 (“[A]
wide variety of behavioral problems and psychological disorders reach
their peak during the emerging adult years. No other stage of life has
such high rates of so many different problems. The exuberance and the
problems coexist, making emerging adulthood an exceptionally complex
life stage, psychologically. . . . [¶] . . . [A]rrest rates rise sharply in the
late teens and then remain high in the early twenties before declining
steeply in the late twenties, the thirties, and beyond. . . . [¶] . . . The
late teens and early twenties are the nadir of what criminologists call
social control, meaning the roles, duties, relationships, and daily
obligations that promote socially responsible behavior and discourage
violations of social norms. Low social control allows for the expression
4
adopted and by successive amendments extended to apply first to
offenders up to 23 years of age and then to those up to age 25. What
then is the rational basis for categorically excluding offenders between
18 and 25 sentenced to LWOP from the scope of section 3051? 4
According to the majority in Jackson, “the difference in the
underlying crimes, and the fact that special circumstance murder is
punished more harshly, provide a rational reason for distinguishing
between the two groups of first degree murderers.” (Jackson, supra,
61 Cal.App.5th at p. 200.) Jackson, Acosta, and the majority here agree
that “the severity of the crime and the offender’s culpability provide a
rational basis for the differing treatment.” (Maj. opn., ante, p. 38.) But
this explanation is no explanation at all. We start with the fact that
LWOP is a harsher sentence than life with the possibility of parole,
presumably imposed because of the nature of the offense; the question
is why it is, or may be thought to be, rational to exclude persons on
whom such a sentence has been imposed from the scope of a measure
designed to evaluate whether a person who committed a serious offense
before attaining psychological maturity has, during a lengthy period of
incarceration, been rehabilitated. To say that the reason is because
of the other tendencies that inspire crime among young males, such as
aggressiveness and impulsiveness.”)
4 See Justice Liu’s concurring statement in People v. Montelongo,
supra, 55 Cal.App.5th at p. 1041 (“In light of the high court’s clear
statement that the mitigating attributes of youth are not ‘crime-
specific’ [citation] and our Legislature’s recognition that those
attributes are found in young adults up to age 25, it is questionable
whether there is a rational basis for section 3051’s exclusion of 18 to 25
year olds sentenced to life without parole.”)
5
such a person received a harsher sentence for a more aggravated
offense is entirely circular.
The reference in the opinions to greater “culpability” adds little.
Greater fault may justify a harsher sentence but it does not explain
why a youthful LWOP offender who has been rehabilitated should
remain imprisoned beyond the number of years after which a
rehabilitated non-LWOP youthful offender sentenced to life
imprisonment may be considered for parole. Moreover, those sentenced
to LWOP under section 190.2 are not necessarily more culpable than
those sentenced to life with the possibility of parole. Some of the
“special circumstances” listed in section 190.2 involve less culpability
than other premeditated murders for which no special circumstance
applies. For example, in People v. Montelongo, supra, 55 Cal.App.5th
1016, the defendant was convicted of felony murder for a killing that
occurred during the course of a robbery. As Justice Segal observed in
his concurring opinion, “under section 3051, a young adult sentenced to
an indeterminate prison term for premeditated first degree murder has
an opportunity for parole, whereas Montelongo, who may not have
intended to kill Brooks but was subject to a mandatory sentence of life
without the possibility of parole . . . does not.” (Id. at p. 1039 (conc. opn.
of Segal, J.).) In the present case, Morales was found to have committed
a multiple murder because the primary victim, who apparently was not
even the person he intended to kill, happened to be pregnant. While the
fact that in the eyes of the law two persons were killed may justify a
more severe sentence, the fact that the primary victim was pregnant
hardly increases the malignancy of his state of mind.
6
The exclusion of youthful LWOP offenders from the scope of
section 3051 is also rationalized on the ground that such persons may
be assumed to be “ ‘sufficiently dangerous to justify lifetime
incarceration.’ ” (E.g., Acosta, supra, 60 Cal.App.5th at p. 780, quoting
In re Williams, supra, 57 Cal.App.5th at p. 436.) Even assuming the
rationality of this explanation as to some of the special circumstances
(e.g., torture murder (§ 190.2, subd. (a)(18)) or murder prompted by
racial hatred (§ 190.2, subd. (a)(16))), it is completely irrational as to
others. Morales’s special circumstance, for example, was the
commission of a double murder, which applied only because his victim
was pregnant—hardly a sign of increased dangerousness. Moreover,
even as to the most egregious offenders, their exclusion on this basis is
essentially irrational because section 3051 provides a parole hearing to
determine whether after years of incarceration the offender has been
rehabilitated and no longer poses a danger to others. Those considered
by the parole board to remain a danger remain incarcerated. There is
no logic to denying parole consideration to one who may be found no
longer to pose a danger based on the rationale that continuing
dangerousness is implied by conviction for an offense committed years
ago, prior to psychological maturation.
Moreover, other factors increase the irrationality of excluding
LWOP youth offenders from the scope of section 3051. It is within the
exclusive discretion of the prosecuting attorney to determine whether
to charge a special circumstance that will deny the offender an
opportunity for eventual parole consideration. Differences in
temperament, philosophy, or politics among prosecutors lead to
inconsistency in making this critical decision. Racial or class bias may
7
also affect the determination of whether to charge a special
circumstance. (See Smith and Levinson, The Impact of Implicit Racial
Bias on the Exercise of Prosecutorial Discretion (2012) 35 Seattle U.
L.Rev. 795; Davis, Racial Fairness in the Criminal Justice System: The
Role of the Prosecutor (2007) 39 Colum. Hum. Rts. L.Rev. 202.) At
present, the trial court has no authority to strike the special
circumstance finding where appropriate, as it once had. The inevitable
differences between prosecuting authorities result in inconsistency
between those youthful offenders serving life sentences who are and
who are not entitled to eventual parole consideration, regardless of the
relative severity of their offenses and regardless of the extent to which
they have outgrown and overcome the deficiencies in temperament and
judgment that led to their offenses years in the past. While the
differences among prosecuting authorities may be unavoidable, there is
no necessity, nor any good reason, to perpetuate the resulting sentence
disparities in a statute designed to reevaluate past offenders under
common criteria for parole suitability.
Still more, the threat of pleading a special circumstance may be
used by prosecutors to induce a guilty plea, regardless of the severity of
the crime. And if a youthful offender refuses to plead and is convicted of
the crime and the special circumstance, that offender will be denied the
parole consideration to which he or she would have been entitled had
the plea agreement been accepted. But whether a defendant is willing
to forego the constitutional right to a jury trial is no measure of the
defendant’s culpability (indeed, there may be an inverse correlation) or
likelihood of reforming, yet in practice that decision determines
8
whether the youthful offender will ever be entitled to parole
consideration.
What is at stake is not any person’s right to parole, to which
some youthful offenders may never become entitled under the
demanding criteria for release on parole. What is in question is only the
right of a youthful offender such as Morales eventually to be evaluated
to determine whether over an extended period of imprisonment and the
development of cognitive and emotional maturity he has become worthy
of release at no risk to the public. In my view, denying him that right,
while affording it to other youthful offenders sentenced to life
imprisonment, is irrational and a denial of equal protection.
POLLAK, P. J.
9
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Rebecca C. Hardie
Counsel:
Shannon Case, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Katie L.
Stowe, Elizabeth W. Hereford, Deputy Attorneys General for Plaintiff and
Respondent.