People v. Heard ( 2022 )

Filed 9/20/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079237
Plaintiff and Respondent,
v. (Super. Ct. No. SCD193832)
FRANK ELI HEARD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Reversed and remanded with instructions.
Eric R. Larson under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Steve Oetting Assistant Attorney General, Melissa Mandel
and Nora S. Weyl, Deputy Attorneys General for Plaintiff and Respondent.
INTRODUCTION
Frank Eli Heard is serving a sentence of 23 years plus 80 years to life
for two counts of attempted willful, deliberate and premeditated murder for a
drive-by shooting he committed at age 15, and one count of voluntary
manslaughter for a homicide he committed just after he turned 16. After 15
years of incarceration, he petitioned the trial court to recall his sentence and
resentence him to a lesser sentence under Penal Code1 section 1170, former
subdivision (d)(2) (now subdivision (d)(1)). Under this provision, a juvenile
offender who “was sentenced to imprisonment for life without the possibility
of parole” and has been incarcerated for at least 15 years “may submit to the
sentencing court a petition for recall and resentencing.” (§ 1170, former
subd. (d)(2)(A)(i), now subd. (d)(1)(A).) The trial court denied Heard’s
petition, finding him ineligible for relief because he was not sentenced to an
explicitly designated term of life without the possibility of parole.2
Heard appeals, presenting two issues of first impression. First, he
asserts the resentencing provision should be interpreted to apply not only to
juvenile offenders sentenced to explicitly designated terms of life without
parole, but also to a juvenile offender, like him, who have been sentenced to
multiple terms that are the functional equivalent of life without parole.
Second and alternatively, Heard asserts a contrary interpretation of the
resentencing provision would violate his constitutional right to equal
protection of the laws. We reject his first contention. Instead, we interpret
section 1170, subdivision (d)(1)(A), to limit eligibility to petition for recall and
resentencing to juvenile offenders sentenced to explicitly designated life
without parole terms. But we conclude denying juvenile offenders, who were
sentenced to the functional equivalent of life without parole, the opportunity
1 Further unspecified statutory references are to the Penal Code.
2 For brevity, we subsequently refer to life without the possibility of
parole as “life without parole.”
2
to petition for resentencing violates the guarantee of equal protection. We
therefore reverse the trial court’s order and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Heard’s Convictions and Sentence3
In January 2005, when Heard was 15 years old, he and three fellow
members of the West Coast Crips gang were riding in a car when the front
passenger shot at a group of rival Blood gang members on the street. In the
volley of bullets, two persons were injured, but not killed. Heard admitted to
the police he was in possession of a gun at the time of the shooting. When the
gun was recovered, it had Heard’s fingerprints on it and was determined to
have fired shell casings recovered from the crime scene. The evening of the
shooting, Heard bragged to a friend that he “got a slob,” which is a derogatory
term for a Blood. In a videotape of a party, made a few days before the
3 Our summary of the underlying factual and procedural background is
taken in part from two prior decisions of this court. (People v. Heard (Feb. 24,
2009, D052492) [nonpub. opn.]; In re Heard (2014) 223 Cal.App.4th 115,
review granted April 30, 2014, S216772, matter transferred Aug. 17, 2016,
judg. vacated and cause remanded Sept. 12, 2016, D063181.) Although
People v. Heard is an unpublished opinion, and our published opinion in In re
Heard was subsequently vacated, we may appropriately rely on them for
information about the background of this case. Both opinions were submitted
to the trial court as exhibits to Heard’s recall and resentencing petition, and
on January 13, 2022, this court granted Heard’s unopposed request for
judicial notice of both opinions as well as the docket in case number D063181
pursuant to California Rules of Court, rule 8.252(a), and Evidence Code
sections 452, subdivision (d), and 459. (See, e.g., Pacific Gas & Electric Co. v.
City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10
[observing it was appropriate for the appellate court to cite an unpublished
decision “to explain the factual background of the case and not as legal
authority”]; accord, Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 443,
fn. 2.)
3
shooting, Heard was holding what appeared to be the same gun used in the
shooting and performing a rap song that glorified a prior killing of Bloods.
In July 2005, less than two weeks after Heard turned 16, witnesses saw
him and others walk up to a young man standing on a street corner. After
exchanging words with the man, Heard pulled out a handgun and shot him in
the head, killing him. It was later determined that Heard believed the victim
was on the street corner selling drugs in his gang’s territory.4
Heard was charged with two counts of attempted willful, deliberate and
premeditated murder (§§ 664, 187, subd. (a); counts 1 and 2), and one count of
murder (§ 187, subd. (a); count 3). Each offense was alleged to have been
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and
with the personal use of a firearm (§ 12022.53, subds. (c), (d), & (e)(1)). Count
3 was severed and Heard went to a jury trial on counts 1 and 2. The jury
found him guilty of both counts of attempted murder as charged and found
true the firearm use and gang allegations. Heard then entered a plea
agreement on count 3, in which he pled guilty to the lesser included offense of
voluntary manslaughter (§ 192, subd. (a)) and admitted a gang enhancement
allegation (§ 186.22, subd. (b)(1)), as well as a firearm enhancement
(§ 12022.5, subd. (a)).
Heard’s sentencing hearing took place in January 2008. In a
sentencing memorandum filed before the hearing, Heard argued the
imposition of a life sentence would be cruel and unusual punishment in
violation of the Eighth Amendment. He urged the court to consider his youth
and capacity to mature and change, limited intelligence, and that he was
4 Our description of this homicide is taken from the probation report,
which was included in the clerk’s transcript for this appeal.
4
introduced to criminal street gangs as a toddler, when making its sentencing
decision. At the sentencing hearing, Heard’s trial counsel continued to
maintain that it would be unconstitutional to sentence Heard to prison for
life.
The trial court disagreed. It found there was “no constitutional
infirmity for the imposing of a life sentence for an attempted premeditated
murder,” and that the Legislature had approved prosecuting juveniles as
adults in response to an increase in acts of gang violence by juvenile gang
members. The court stated Heard was the “poster child for the legislative
intervention with regard to gangs.” It concluded there was “no constitutional
infirmity in the application of either a life sentence as to the counts or . . . life
sentences as to the enhancements.” The court then sentenced Heard to a
total prison term of 23 years plus 80 years to life.5
Heard appealed his attempted murder convictions, and this court
affirmed the judgment in 2009. (People v. Heard, supra, D052492, review
denied May 20, 2009, S171378.) Heard filed a petition for a writ of habeas
corpus with the superior court, claiming his prison sentence was excessive
because he would not be eligible for parole during his lifetime. The superior
court denied the petition. Heard then filed a petition for a writ of habeas
corpus with this court in 2012, raising again the argument that his sentence
5 On counts 1 and 2, Heard was sentenced to 15 years to life on each
attempted premeditated murder and a consecutive 25 years to life for the
firearm under section 12022.53, subdivision (d), on each offense. The total
term on both counts was 80 years to life. On count 3, Heard was sentenced to
nine years for the voluntary manslaughter, plus four years for the firearm
under section 12022.5, subdivision (a), another 10 years for the gang
enhancement under section 186.22, for a total determinate term of 23 years.
The court elected to run the sentences for counts 1, 2, and 3 consecutively.
5
was excessive. As we later discuss in further detail, in January 2014, we
granted the petition and remanded the case for resentencing. (In re Heard,
supra, D063181.) In the intervening years since Heard was sentenced in
2008, a sea change in juvenile sentencing law had occurred, beginning with
the United States Supreme Court’s decision in Roper v. Simmons (2005) 543
U.S. 551 (Roper). We discuss those changes in juvenile sentencing law next,
before returning to the procedural history of Heard’s case.
II.
Changes in Juvenile Sentencing Law
A. Decisional Law
Beginning with Roper in 2005, the United States Supreme Court held
the Eighth Amendment categorically bars imposition of the death penalty on
offenders who were under 18 when their crimes were committed. (Roper,
supra, 543 U.S. at pp. 578–579.) In a series of decisions that followed, the
United States Supreme Court and California Supreme Court placed further
limits on the punishment that may constitutionally be imposed on juvenile
offenders. These decisions arose in large part from advances in research on
adolescent brain development, and the related, growing recognition that
juveniles “have diminished culpability and greater prospects for reform” and
are therefore “constitutionally different from adults for purposes of
sentencing.” (Miller v. Alabama (2012) 567 U.S. 460, 471 (Miller), discussing
Roper, supra, 543 U.S. 551 and Graham v. Florida (2010) 560 U.S. 48(Graham).)
Five years after Roper, the United States Supreme Court held in
Graham the Eighth Amendment categorically bars the imposition of a
sentence of life without parole on a juvenile offender who did not commit
homicide. (Graham, supra, 560 U.S. at p. 82.) The Graham court observed:
6
“As compared to adults, 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.] These
salient characteristics mean that ‘[i]t is difficult even for expert psychologists
to differentiate between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption.’ [Citation.] Accordingly, ‘juvenile
offenders cannot with reliability be classified among the worst offenders.’ ”
(Id. at p. 68.)
The Graham court further observed that life without parole is “ ‘the
second most severe penalty permitted by law’ ” and it is “an especially harsh
punishment for a juvenile [offender],” who “will on average serve more years
and a greater percentage of his life in prison than an adult offender.”
(Graham, supra, 560 U.S. at pp. 69, 70.) It “likened a life without parole
sentence for nonhomicide [juvenile] offenders to the death penalty itself,
given their youth and the prospect that, as the years progress, juveniles can
reform their deficiencies and become contributing members of society.”
(People v. Caballero (2012) 55 Cal.4th 262, 266 (Cabellero), citing Graham, at
pp. 69−70.) To avoid violating the Eighth Amendment, the high court held
that states “need not guarantee the [nonhomicide] offender eventual release”
but must provide “some realistic opportunity to obtain release.” (Graham, at
p. 82.)
In Miller, the United States Supreme Court extended Graham’s
reasoning to homicide cases and held the Eighth Amendment forbids
sentencing schemes that make life without parole the mandatory punishment
for a juvenile convicted of homicide. (Miller, supra, 567 U.S. at p. 489.) The
7
Court reaffirmed that “the distinctive attributes of youth diminish the
penological justifications for imposing the harshest sentences on juvenile
offenders, even when they commit terrible crimes.” (Id. at p. 472.) It
explained that “mandatory penalty schemes . . . remov[e] youth from the
balance” and “prohibit a sentencing authority from assessing whether the
law’s harshest term of imprisonment proportionately punishes a juvenile
offender. That contravenes Graham’s (and also Roper’s) foundational
principle: that imposition of a State’s most severe penalties on juvenile
offenders cannot proceed as though they were not children.” (Id. at p. 474.)
The Miller court did not extend Graham’s categorical ban to homicide
cases and foreclose life without parole terms for juvenile homicide offenders,
but it held the sentencing court must have discretion to impose a lesser
sentence. (Miller, supra, 567 U.S. at p. 480.) The Court outlined mitigating
factors relating to youth that must be considered by the sentencing court
before committing a juvenile to prison for life without parole,6 and cautioned
6 These factors are: “(1) ‘a juvenile offender’s “chronological age and its
hallmark features—among them, immaturity, impetuosity, and failure to
appreciate risks and consequences” ’; (2) ‘ “the family and home environment
that surrounds [the juvenile]—and from which he cannot usually extricate
himself—no matter how brutal or dysfunctional” ’; (3) ‘ “the circumstances of
the homicide offense, including the extent of [the juvenile defendant’s]
participation in the conduct and the way familial and peer pressures may
have affected him” ’; (4) ‘whether the offender “might have been charged and
convicted of a lesser offense if not for incompetencies associated with youth—
for example, his inability to deal with police officers or prosecutors (including
on a plea agreement) or his incapacity to assist his own attorneys” ’; and (5)
‘ “the possibility of rehabilitation.” ’ ” (In re Kirchner (2017) 2 Cal.5th 1040,
1054 (Kirchner).)
8
that the “appropriate occasions for sentencing juveniles to this harshest
possible penalty will be uncommon.”7 (Id. at pp. 477–479.)
In Caballero, the California Supreme Court held that an aggregate 110-
year-to-life sentence imposed on a juvenile convicted of nonhomicide offenses
contravenes Graham’s mandate against cruel and unusual punishment under
the Eighth Amendment. (Caballero, supra, 55 Cal.4th at pp. 265, 268–269.)
In so holding, our high court rejected the People’s claim that “a cumulative
sentence for distinct crimes does not present a cognizable Eighth Amendment
claim” because each individual sentence included the possibility of parole
within the juvenile offender’s lifetime. (Id. at p. 267.) The juvenile offender
in Caballero was convicted of three counts of attempted murder, committed
for the benefit of a criminal street gang and with the personal use of a
firearm. (Id. at p. 265.) The Court observed the juvenile “will become parole
eligible over 100 years from now.” (Id. at p. 268 [explaining that under
section 3046, subdivision (b), the defendant would be required to serve a
minimum of 110 years before becoming parole eligible].) The Court called
this a “term-of-years sentence that amounts to the functional equivalent of a
life without parole sentence.” (Caballero, at p. 268.) It then concluded that
under Graham, “sentencing a juvenile offender for a nonhomicide offense to a
term of years with a parole eligibility date that falls outside the juvenile
7 In Montgomery v. Louisiana (2016) 577 U.S. 190, 212 (Montgomery),
the Court held the holding of Miller was retroactive because it announced a
substantive rule of constitutional law. The Montgomery court also held that
states could remedy Miller error⎯that is, sentencing a juvenile to life
without parole without considering the youth-related mitigating factors
outlined in Miller (see footnote 6, ante)⎯by giving juvenile homicide
offenders parole hearings, rather than resentencing them. (Montgomery, at
p. 212.)
9
offender’s natural life expectancy constitutes cruel and unusual punishment
in violation of the Eighth Amendment.” (Caballero, at p. 268.)
B. Statutory Law
As decisional law on the punishment of juvenile offenders was
developing, the Legislature enacted two provisions that are relevant to this
case.
1. Senate Bill No. 9 (2011–2012 Reg. Sess.) (Senate Bill 9) Adds
Former Subdivision (d)(2), Now Subdivision (d)(1), to Section
1170
Effective January 1, 2013, Senate Bill 9 added former subdivision (d)(2)
to section 1170. (See Stats. 2012, ch. 828, § 1.) Senate Bill 9 “was introduced
in the Legislature after Graham, but before Miller” and “was inspired by
concerns regarding sentences of life without parole for juvenile offenders.”
(Kirchner, supra, 2 Cal.5th at p. 1049.) It created “a procedural mechanism
for resentencing of defendants who were under the age of 18 at the time of
the commission of their offenses and who were given [life without parole]
sentences.” (People v. Willover (2016) 248 Cal.App.4th 302, 310.) Under this
provision, “[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, former subd. (d)(2)(A)(i), now
subd. (d)(1)(A).)
In the petition, “the defendant must describe his or her remorse, relate
his or her work toward rehabilitation, and state that a qualifying
circumstance is true.” (Kirchner, supra, 2 Cal.5th at pp. 1049–1050.) The
qualifying circumstances are (1) the defendant “was convicted pursuant to
felony murder or aiding and abetting murder provisions of law”; (2) the
10
defendant does not have juvenile felony adjudications for assault or other
violent felonies prior to the offense that resulted in the sentence being
considered for recall; (3) the defendant committed the offense with at least
one adult codefendant; or (4) the defendant has performed acts that tend to
indicate rehabilitation or the potential for rehabilitation. (§ 1170, former
subd. (d)(2)(B)(i)–(iv), now subd. (d)(1)(A)–(D).) “If the court finds by a
preponderance of the evidence that one or more of the qualifying
circumstances in the petition are true, the court must recall the defendant’s
sentence and hold a hearing to resentence the defendant.” (Kirchner, at
p. 1050.)
At the resentencing hearing, the court is permitted to consider factors
enumerated in the statute, along with “ ‘any other criteria that the court
deems relevant to its decision.’ ” (Kirchner, supra, 2 Cal.5th at p. 1050.)
“Upon conducting this assessment, ‘[t]he court shall have the discretion to
resentence the defendant in the same manner as if the defendant had not
previously been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.’ ” (Ibid.) If the sentence is not recalled or
the defendant is resentenced to imprisonment for life without the possibility
of parole, the defendant may submit another petition for recall and
resentencing after 20 and 24 years of incarceration. (§ 1170, former subd.
(d)(2)(H), now subd. (d)(10).)
In Kirchner, the California Supreme Court held this statutory
resentencing procedure is not adequate to cure Miller error. (Kirchner,
supra, 2 Cal.5th at pp. 1043, 1052–1056.) The Court explained the procedure
was “originally . . . developed prior to the decision in Miller, . . . was not
designed to provide a remedy for this type of error, and . . . is not well suited
to serve this purpose.” (Id. at p. 1052.) It further explained the procedure
11
“provides only a selective and qualified remedy, the application of which is
ultimately premised on an inquiry that may, but does not necessarily, overlap
with the one demanded under Miller.” (Id. at pp. 1054–1055.)
Since its original enactment, former subdivision (d)(2) of section 1170
has been modified, but the modifications are relatively minor. Relevant to
this appeal, the provision that specifies which defendants are eligible to file a
petition for recall and resentencing (§ 1170, former subd. (d)(2)(A)(i), now
subd. (d)(1)(A)) has not been changed. Effective January 1, 2022, subdivision
(d)(2) of section 1170 was redesignated as subdivision (d)(1) of section 1170.
(Stats. 2021, ch. 731, § 1.3.)
2. Senate Bill No. 260 (2013-2014 Reg. Sess.) (Senate Bill 260)
Effective January 1, 2014, Senate Bill 260 added sections 3051, 3046,
subdivision (c), and 4801, subdivision (c), to the Penal Code. (Stats. 2013,
ch. 312, §§ 3, 4 & 5; see People v. Franklin (2016) 63 Cal.4th 261, 276–277
(Franklin) [discussing this history].) Senate Bill 260 was passed “explicitly to
bring juvenile sentencing into conformity with Graham, Miller, and
Caballero.” (Franklin, at p. 277.)
“At the heart of [Senate Bill 260] was the addition of section 3051,
which requires the Board [of Parole Hearings (Board)] to conduct a ‘youth
offender parole hearing’ during the 15th, 20th, or 25th year of a juvenile
offender’s incarceration. [Citation.] The date of the hearing depends on the
offender’s ‘ “[c]ontrolling offense,” ’ which is defined as ‘the offense or
enhancement for which any sentencing court imposed the longest term of
imprisonment.’ ” (Franklin, supra, 63 Cal.4th at p. 277.) As originally
enacted, section 3051 created a schedule of youth offender parole hearings for
juvenile offenders sentenced to a determinate term, a life term of less than 25
12
years to life, or a life term of 25 years to life.8 (Stats. 2013, ch. 312, § 4;
§ 3051, subd. (b)(1)‒(3).)
In Franklin, the California Supreme Court considered the effect of
Senate Bill 260 on a juvenile’s claim of Miller error. The defendant in
Franklin was 16 years old when he shot and killed another teenager.
(Franklin, supra, 63 Cal.4th at p. 269.) He was convicted of first degree
murder with a corresponding firearm enhancement, for which he received
two consecutive 25-year-to-life terms. (Id. at p. 271.) Our high court held
“just as Graham applies to sentences that are the ‘functional equivalent of a
life without parole sentence’ [citation], so too does Miller apply to such
functionally equivalent sentences.” (Id. at p. 276.) The Court went on to
find, however, that Senate Bill 260 mooted the defendant’s Eighth
Amendment challenge to his sentence under Miller. It explained that
although the defendant remained bound by his original sentence, by
operation of Senate Bill 260, the defendant “is now serving a life sentence
that includes a meaningful opportunity for release during his 25th year of
incarceration. Such a sentence is neither [life without parole] nor its
functional equivalent. Because [the defendant] is not serving [a life without
parole] sentence or its functional equivalent, no Miller claim arises here.”
(Franklin, at pp. 279–280.)
8 Section 3051 originally excluded juvenile offenders sentenced to life
without parole from receiving youth offender parole hearings. (See Franklin,
supra, 63 Cal.4th at p. 278.) After the California Supreme Court held in
Kirchner, supra, 2 Cal.5th 1040 that section 1170, former subdivision (d)(2),
was inadequate to cure Miller error, the Legislature amended section 3051 to
provide youth offender parole hearings to juvenile offenders sentenced to life
without parole. (See § 3051, subd. (b)(4), added by Stats. 2017, ch. 684, § 1.5.)
13
At the same time, our high court recognized the defendant’s sentencing
hearing may have resulted in a record that was “incomplete or missing
mitigation information [relating to his youth]” because such information was
not considered relevant at the time he was sentenced. (Franklin, supra, 63
Cal.4th at pp. 282–283.) Accordingly, it remanded the matter for the trial
court to determine “whether [the defendant] was afforded sufficient
opportunity to make a record of information relevant to his eventual youth
offender parole hearing,” and, if not, to hold a hearing at which the parties
could present evidence bearing on “youth-related factors” for later
consideration by the Board. (Id. at p. 284.) This hearing is now commonly
referred to as a Franklin proceeding. (See In re Cook (2019) 7 Cal.5th 439,
450.)
Against this backdrop of changes in juvenile sentencing law, we return
to Heard’s petition for writ of habeas corpus.
III.
Heard’s Petition for Writ of Habeas Corpus
As noted, in December 2012, Heard filed a petition for writ of habeas
corpus with this court in which he argued his sentence was excessive under
the Eighth Amendment. In January 2014, we granted the petition and
remanded the case for resentencing. (In re Heard, supra, D063181.) Relying
on Graham, Miller, and Caballero, we held Heard’s sentence was “a de facto
life [without parole] sentence,” the majority of which was attributable to
nonhomicide offenses, and it therefore violated the Eighth Amendment.
(Ibid.) Lacking the benefit of Montgomery and Franklin, we rejected the
People’s contention that Heard’s eligibility for a parole hearing under section
3051 negated the need for resentencing.
14
The People petitioned for review with the California Supreme Court.
In April 2014, the Court granted the petition and deferred action pending the
resolution of two other cases (In re Alatriste, S214652, and In re Bonilla,
S214960). In May 2016, while Heard’s case was still pending, the California
Supreme Court decided Franklin, supra, 63 Cal.4th 261. In August, our high
court transferred Heard’s case to this court with directions to vacate our
January 2014 disposition and to issue an order to show cause to the secretary
of the California Department of Corrections and Rehabilitation (Department
of Corrections), returnable to the superior court, why Heard was not entitled
to make a record of “ ‘mitigating evidence tied to his youth.’ ([Franklin,
supra, 63 Cal.4th at pp. 268–269, 283–284].)” In September 2016, we vacated
our opinion in case number D063181 and issued an order to show cause as
directed.9
Heard received his Franklin proceeding in August 2017. After
reviewing documents submitted by Heard and the People, the trial court
determined it had not received all relevant mitigating evidence at the
sentencing hearing.10 The court ordered the parties’ documents to be filed
with the court under seal and submitted to the Department of Corrections.
9 Because this opinion was vacated, it has no effect as law of the case.
(See Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13
Cal.App.5th 757, 773.)
10 On our own motion, we take judicial notice of the trial court’s order,
which appears on the docket in case number D063181 and is part of our file
in that case. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a); see Forbes v.
County of San Bernardino (2002) 101 Cal.App.4th 48, 50–51.)
15
IV.
Heard’s Petition for Recall and Resentencing
In March 2021, Heard filed in the trial court a petition for recall and
resentencing under section 1170, former subdivision (d)(2)(A). He asserted he
was eligible to petition for resentencing because his sentence was a de facto
life without parole sentence. He claimed he also met the other statutory
criteria for resentencing, including that he had been incarcerated for over 15
years, was 15 years old when he committed the attempted murders, and his
co-defendant was an adult at the time of these offenses.11 Citing exhibits
attached to his petition, he also asserted that he was no longer an active gang
member, had completed multiple self-help and educational programs in
prison, and was working as a mentor to younger inmates.
On June 28, 2021, in a written order, the trial court denied Heard’s
petition on the ground that he was statutorily ineligible to petition for
resentencing. The court reasoned that resentencing under section 1170,
former subdivision (d)(2)(A)(i), was specifically made available only to those
defendants “sentenced to imprisonment for LWOP” (i.e., life without parole),
and Heard “was not sentenced to imprisonment for LWOP.” Heard appealed
the trial court’s order.12
11 Wade Thomas Mills III, an adult, was in the car with Heard during the
drive-by-shooting. He was found in possession of a gun at the time of the
shooting, and his gun was also determined to have fired shell cases recovered
from the crime scene. He was charged and tried with Heard on the
attempted murders in counts 1 and 2, but the jury deadlocked as to Mills on
both charges, and the court declared a mistrial as to Mills’s case.
12 The People do not dispute that the trial court’s order is an appealable
order. (See § 1237, subd. (b) [postconviction orders implicating a defendant’s
“substantial rights” are appealable]; Gray v. Superior Court (2016) 247
16
DISCUSSION
Heard challenges the trial court’s determination that he is ineligible to
petition for recall and resentencing on two grounds that present matters of
first impression. First, he contends section 1170, subdivision (d)(1),13 should
be interpreted to apply to juvenile offenders sentenced to the functional
equivalent of life without parole. Second, he contends that a contrary
interpretation of section 1170, subdivision (d)(1), would violate his
constitutional right to equal protection of the laws. Here, we reject Heard’s
interpretation of section 1170, subdivision (d)(1), but we agree with him that
denying juvenile offenders sentenced to the functional equivalent of life
without parole the opportunity to petition for resentencing under this
provision violates the constitutional guarantee of equal protection of the laws.
I.
Section 1170, Subdivision (d)(1), Limits Eligibility to Petition for
Resentencing to Juvenile Offenders Sentenced to Actual Life Without Parole
Heard’s first contention presents an issue of statutory interpretation
that we consider de novo. (See People v. Prunty (2015) 62 Cal.4th 59, 71.)
“[O]ur fundamental task . . . is to determine the Legislature’s intent so as to
effectuate the law’s purpose.” (People v. Murphy (2001) 25 Cal.4th 136, 142.)
Cal.App.4th 1159, 1164 [“It is plain that a defendant’s ‘substantial rights’
include personal liberty interests.”].)
13 As we have mentioned, former subdivision (d)(2) of section 1170 was
recently redesignated as subdivision (d)(1) of section 1170. (Stats. 2021,
ch. 731, § 1.3.) This change took effect on January 1, 2022, while this appeal
was pending. (See ibid.) Although the parties’ appellate briefs refer to this
provision by its former designation, we will generally refer to the provision
(and the parties’ arguments about the provision) using its current
designation.
17
“Statutory construction begins with the plain, commonsense meaning of the
words in the statute, ‘ “because it is generally the most reliable indicator of
legislative intent and purpose.” ’ ” (People v. Manzo (2012) 53 Cal.4th 880,
885.) A statute is not to be read in isolation, but construed in context and
“ ‘with reference to the whole system of law of which it is a part so that all
may be harmonized and have effect.’ ” (Landrum v. Superior Court (1981) 30
Cal.3d 1, 14.) “ ‘If there is no ambiguity or uncertainty in the language, the
Legislature is presumed to have meant what it said, and we need not resort
to legislative history to determine the statute’s true meaning.’ ” (People v.
Skiles (2011) 51 Cal.4th 1178, 1185.)
In ruling that Heard was ineligible to petition for recall and
resentencing, the trial court relied on section 1170, subdivision (d)(1)(A),
which states: “When 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.” (Italics added.)
The question is whether this provision, and in particular the italicized
text, refers only to defendants sentenced to an explicitly designated term of
life without parole, or whether it includes defendants sentenced to multiple
terms that in the aggregate constitute the functional equivalent of life
without parole. Two aspects of the statutory text suggest eligibility to
petition for resentencing is limited to defendants sentenced to an explicitly
designated term of life without parole.
First, the phrase “life without the possibility of parole” denotes a
specific sentence and is used elsewhere in the Penal Code to specify that
punishment as distinct from other punishments. For example, section 190.5,
18
subdivision (b), 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.” (Italics added.) Similarly, section 3051,
subdivision (b), which makes the timing of youth offender parole hearings
contingent on the offender’s longest term of imprisonment (§ 3051, subd.
(a)(2)(B)), has separate provisions that create different parole hearing
eligibility dates depending on whether the offender’s longest term of
imprisonment is “a determinate sentence” (§ 3051, subd. (b)(1)), “a life term of
less than 25 years to life” (§ 3051, subd. (b)(2)), “a life term of 25 years to life”
(§ 3051, subd. (b)(3)), or “life without the possibility of parole” (§ 3051, subd.
(b)(4), italics added).
Second, section 1170, subdivision (d)(1)(A), uses the singular when
referring to “the offense for which the defendant was sentenced to
imprisonment for life without the possibility of parole.” (§ 1170, subd.
(d)(1)(A), italics added.) For a single offense to result in a life without parole
sentence, the sentence must be one of an explicitly designated life without
parole. The functional equivalent of life without parole results only when a
defendant receives multiple sentences for multiple offenses, or an offense plus
one or more enhancements, that add up to a lifelong prison commitment with
no realistic opportunity for release. (See, e.g., Caballero, supra, 55 Cal.4th at
pp. 265, 268–269 [sentence of 110 years to life for three counts of attempted
murder plus corresponding firearm enhancements was the functional
equivalent of life without parole]; People v. Contreras (2018) 4 Cal.5th 349,
19
356–357, 369 (Contreras) [two juveniles sentenced to aggregate terms of 50
years to life and 58 years to life imposed for multiple kidnapping offenses and
multiple sexual offenses; held, these sentences were the functional equivalent
of life without parole].) The use of the singular when referring to “the offense
for which the defendant was sentenced” suggests the Legislature meant an
explicitly designated life without parole sentence. (§ 1170, subd. (d)(1)(A).)
Accordingly, the text of the statute does not support Heard’s
interpretation of it. And even if we were to find ambiguity in the statute’s
text, its legislative history also fails to assist Heard. As Kirchner explained,
Senate Bill 9 “was inspired by concerns regarding sentences of life without
parole for juvenile offenders.” (Kirchner, supra, 2 Cal.5th at p. 1049, citing
Assem. Com. on Appropriations, Analysis of Sen. Bill 9, as amended Aug. 15,
2011, pp. 3–5.) Although case law has since made clear these concerns apply
to offenders sentenced to an explicitly designated life without parole term as
well as terms that are functionally equivalent to life without parole, this case
law was still nascent when Senate Bill 9 was introduced. Virtually every
legislative committee analysis of Senate Bill 9 observed that section 190.5,
subdivision (b), permitted juvenile offenders to be sentenced to life without
parole for special circumstances murder; other sentencing provisions were
not discussed. (See, e.g., Sen. Com. on Public Safety, Analysis of Sen. Bill 9,
as introduced Dec. 6, 2010, p. 3; Sen. Rules Com., Off. of Sen. Floor Analyses,
3d reading analysis of Sen. Bill 9, as introduced, pp. 2‒3; Assem. Com. on
Public Safety, Analysis of Sen. Bill 9, as amended May 27, 2011, pp. 5–6, 9;
Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of
Sen. Bill 9, as amended July 2, 2012, p. 2.) Thus, contemporaneous analyses
of Senate Bill 9 tend to show the Legislature, in enacting the resentencing
20
provision, was focused only on creating a remedy for juveniles sentenced to
an explicitly designated life without parole term.
The interplay between the relief afforded by Senate Bill 9 and the relief
afforded by Senate Bill 260 provides further support for the conclusion that
Senate Bill 9 was intended for juvenile offenders sentenced to an explicitly
designated life without parole term. As we have discussed, Senate Bill 260,
which created section 3051, was explicitly passed “to bring juvenile
sentencing into conformity with Graham, Miller, and Caballero.” (Franklin,
supra, 63 Cal.4th at p. 277.) And yet as originally enacted, section 3051
provided youth offender parole hearings only to juveniles whose lengthiest
sentence was (1) a determinate sentence, (2) “a life term of less than 25 years
to life,” or (3) “a life term of 25 years to life.” (See § 3051, subd. (b)(1)‒(3),
added by Stats. 2013, ch. 312, § 4.) It was only after the California Supreme
Court held in Kirchner, supra, 2 Cal.5th 1040 that section 1170, former
subdivision (d)(2), now subdivision (d)(1), was inadequate to cure Miller error,
that the Legislature amended section 3051 to provide youth offender parole
hearings to juvenile offenders sentenced to “life without the possibility of
parole.” (See § 3051, subd. (b)(4), added by Stats. 2017, ch. 684, § 1.5.) This
history, too, demonstrates the resentencing provision was intended for
juvenile offenders sentenced to explicitly designated life without parole
terms, with section 3051 initially serving as a complementary provision that
provided relief only to other juvenile offenders.
All of these considerations lead to the conclusion that eligibility under
section 1170, subdivision (d)(1)(A), to petition for recall and resentencing is
limited to juvenile offenders sentenced to an explicitly designated life without
parole term. Heard offers two reasons why we should construe the statute
differently. First, he contends we should “view[ ]” the statute against the
21
“legal landscape” pertaining to juvenile sentencing—a landscape that
includes Miller, Franklin, and Kirchner. He essentially asks us to read
section 1170, subdivision (d)(1), as though it embodied the principles
articulated in these decisions even though it was introduced after them. We
are not free to construe a statute so liberally that we change its intended
meaning. “[W]e may not ‘ “ ‘ “rewrite a statute to make it express an
intention not expressed therein” ’ ” ’ or one that may be derived from its
legislative history.” (People v. Hobbs (2007) 152 Cal.App.4th 1, 5.) “We do
not sit as a ‘super Legislature.’ ” (People v. Flores (2014) 227 Cal.App.4th
1070, 1074.)
Second, Heard contends we should construe section 1170, subdivision
(d)(1), so as to avoid an absurd result. The absurd result being that a
juvenile sentenced to terms amounting to de facto life without parole is not
eligible to petition for resentencing, when a juvenile sentenced to actual life
without parole is eligible to petition for resentencing. We disagree this
circumstance warrants invoking the absurdity exception of statutory
construction. Under the absurdity doctrine, “[a] court is not required to
follow the plain meaning of a statute when to do so would frustrate the
manifest purpose of the legislation as a whole or otherwise lead to absurd
results. [Citations.] However, the absurdity exception requires much more
than showing that troubling consequences may potentially result if the
statute’s plain meaning were followed or that a different approach would
have been wiser or better. . . . Moreover, our courts have wisely cautioned
that the absurdity exception to the plain meaning rule ‘should be used most
sparingly by the judiciary and only in extreme cases else we violate the
separation of powers principle of government.’ ” (Switzer v. Wood (2019) 35
Cal.App.5th 116, 129.) It is not unusual for resentencing provisions to
22
exclude categories of offenders. (See People v. Gonzalez (2021) 65
Cal.App.5th 420, 434 [identifying examples of such provisions].) Interpreting
section 1170, subdivision (d)(1)(A), to limit eligibility for resentencing to
juveniles sentenced to an explicitly designated life without parole term is not
a consequence so extreme that it qualifies as absurd. (Cf. People v. Morris
(1988) 46 Cal.3d 1, 15 [applying the absurdity doctrine to avoid construing
section 190.4 to require that the robbery underlying a felony murder must be
separately charged as an independent substantive offense, lest the statute of
limitations applicable to the robbery operate as a bar to the felony murder,
which has no statute of limitations], disapproved on other grounds by In re
Sassounian (1995) 9 Cal.4th 535, 543‒545.)
For all of these reasons, we conclude section 1170, subdivision (d)(1)(A),
limits eligibility to petition for recall and resentencing to juvenile offenders
sentenced to an explicitly designated life without parole term. The trial
court’s interpretation of the statute was correct, and it did not err in denying
Heard’s petition for recall and resentencing on this ground.
II.
Denying Juvenile Offenders Like Heard Who Were Sentenced to the
Functional Equivalent of Life Without Parole the Opportunity to Petition for
Resentencing Violates the Constitutional Guarantee of Equal Protection
Heard contends that if section 1170, subdivision (d)(1), is not
interpreted to apply to defendants sentenced to the functional equivalent of
life without parole, then it violates his constitutional right to equal protection
of the laws. On this, we agree.
The People argue that Heard forfeited the opportunity to raise his
equal protection challenge on appeal because he failed to assert it in the trial
court. It is true that an equal protection claim “may be forfeited if it is raised
23
for the first time on appeal.” (People v. Dunley (2016) 247 Cal.App.4th 1438,
1447.) But “application of the forfeiture rule is not automatic.” (In re S.B.
(2004) 32 Cal.4th 1287, 1293.) “[A]ppellate courts have discretion to address
constitutional issues raised on appeal” where, as here, “the issue presented is
‘a pure question of law’ turning on undisputed facts.” (In re Spencer S. (2009)
176 Cal.App.4th 1315, 1323; see In re Sheena K. (2007) 40 Cal.4th 875, 888
[defendant’s challenge to a probation condition as constitutionally vague and
overbroad presented a pure question of law that could be considered for the
first time on review]; People v. Blanco (1992) 10 Cal.App.4th 1167, 1172–1173
[whether to address the constitutionality of a statute for the first time on
appeal is a discretionary determination for the reviewing court].) One factor
that supports overlooking a forfeiture is when the belatedly raised issue “may
return as a habeas corpus petition” (In re Spencer S., at p. 1323), which could
occur here (see In re Jones (2019) 42 Cal.App.5th 477, 480 [habeas petition
challenging denial of resentencing under section 1170, former subdivision
(d)(2)]). We also observe that section 1170, subdivision (d)(10), allows the
filing of successive resentencing petitions, so Heard could conceivably raise
his equal protection challenge in a later petition if we do not consider it now.
So we will exercise our discretion to consider the merits of Heard’s equal
protection claim.
A. Heard Is Similarly Situated With the Juvenile Offenders Eligible to
Seek Resentencing Under Section 1170, Subdivision (d)(1)
“The Fourteenth Amendment to the United States Constitution and
article I, section 7, subdivision (a) of the California Constitution both prohibit
the denial of equal protection of the laws. ‘The equal protection guarantees of
[both Constitutions] are substantially equivalent and analyzed in a similar
fashion.’ ” (People v. Cruz (2012) 207 Cal.App.4th 664, 674.) “The concept of
equal protection recognizes that persons who are similarly situated with
24
respect to a law’s legitimate purposes must be treated equally.” (People v.
Brown (2012) 54 Cal.4th 314, 328.)
When we are presented with an equal protection claim, we begin by
considering whether the class of persons allegedly subjected to unequal
treatment is similarly situated with the class of persons benefited by the
challenged law. “ ‘ “The first prerequisite to a meritorious claim under the
equal protection clause is a showing that the state has adopted a
classification that affects two or more similarly situated groups in an unequal
manner.” [Citations.] This initial inquiry is not whether persons are
similarly situated for all purposes, but “whether they are similarly situated
for purposes of the law challenged.” ’ ” (People v. Morales (2016) 63 Cal.4th
399, 408 (Morales).) Indeed, “[t]here is always some difference between the
two groups which a law treats in an unequal manner since an equal
protection claim necessarily asserts that the law in some way distinguishes
between the two groups.” (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)
Heard protests the fact that juvenile offenders sentenced to an
explicitly designated life without parole term can seek resentencing while
juvenile offenders sentenced to the functional equivalent of such a sentence
cannot. As we have already explained, section 1170, subdivision (d)(1)(A),
establishes the threshold eligibility requirements to petition for recall and
resentencing. Its only criteria are (1) the defendant “was under 18 years of
age at the time of the commission of the offense”; (2) for this offense, the
defendant “was sentenced to imprisonment for life without the possibility of
parole”; and (3) the defendant “has been incarcerated for at least 15 years.”
(§ 1170, subd. (d)(1)(A).) If the defendant meets these requirements, he “may
submit to the sentencing court a petition for recall and resentencing.” (Ibid.)
Heard meets the first and third criteria; in this regard, he is identically
25
situated with those who are eligible to petition for resentencing. The only
difference between him and the defendants to whom this provision applies is
that he was sentenced to 23 years plus 80 years to life, rather than life
without parole.
Heard argues his sentence constitutes a de facto life without parole
sentence and he is thus similarly situated with juveniles sentenced to an
explicit term of life without parole. He acknowledges that due to the
enactment of section 3051, he will now receive a youth offender parole
hearing in his 25th year of incarceration, but points out that following the
2018 amendment of section 3051, juveniles sentenced to an explicit term of
life without parole are also entitled to a youth offender parole hearing in
their 25th year of incarceration. (Stats. 2017, ch. 684 § 1.5; see § 3051, subd.
(b)(3), (4).)
The People disagree that Heard’s sentence qualifies as a de facto life
without parole sentence. Citing Franklin, supra, 63 Cal.4th at page 286, they
contend section 3051 has “ ‘reformed’ ” Heard’s sentence so that it is no longer
the functional equivalent of life without parole. The People additionally
argue that “irrespective of section 3051,” Heard is not similarly situated with
juvenile offenders sentenced to an explicit term of life without parole. The
difference, they claim, is in the crimes committed by each group of offenders.
Here, we conclude Heard is similarly situated for purposes of section
1170, subdivision (d)(1)(A), with those juvenile offenders who are eligible to
petition for resentencing. First, we disagree that Heard’s eligibility for a
youth offender parole hearing under section 3051 undermines the conclusion
that his sentence constitutes a de facto life without parole sentence, such that
he is not similarly situated with the juvenile offenders to whom the
resentencing provision applies. As another court has explained, the statutory
26
resentencing provision “uses the phrase ‘was sentenced’ and refers to the
past.” (See People v. Lopez (2016) 4 Cal.App.5th 649, 653–654, italics added
(Lopez) [holding that two juveniles, whose life without parole sentences were
modified to life with parole in response to a habeas petition, asserting Eighth
Amendment error remained eligible to seek resentencing under section 1170,
former subdivision (d)(2)(A)(i), because they were originally sentenced to life
without parole].) At the time Heard was sentenced, section 3051 had not yet
been enacted, and he was required to serve his determinate term plus the full
minimum period of confinement of each of his life sentences before becoming
parole eligible. (§§ 669, subd. (a), 3046, subd. (b).) Put another way, Heard
would have to serve 103 years before becoming parole eligible. Such a
sentence constitutes a de facto life without parole sentence. (See Caballero,
supra, 55 Cal.4th at p. 268 [offender who would not become parole eligible for
more than 100 years was sentenced to the functional equivalent of life
without parole].)
It is true, as the People contend, that Franklin held that because the
defendant had become eligible for a youth offender parole hearing in his 25th
year of incarceration, he was no longer serving a life without parole sentence
or its functional equivalent. (Franklin, supra, 63 Cal.4th at pp. 279–280.) As
our high court explained, this was the result of the retroactive operation of
section 3051. (Franklin, at pp. 278–279.) The Court further explained,
however, that section 3051 did not alter the defendant’s original sentence,
which continued to remain binding. (Franklin, at pp. 279–280.) Applying the
same reasoning here, although the retroactive operation of section 3051
means Heard will receive a youth offender parole hearing in his 25th year of
incarceration, his original sentence remains binding. Section 1170,
subdivision (d)(1), is a statutory resentencing opportunity, not a cure for
27
Miller error. (Kirchner, supra, 2 Cal.5th at p. 1056.) Although under
Franklin, Heard’s sentence as it currently operates is no longer the functional
equivalent of life without parole, this does not change the fact that the
sentence was a de facto life without parole sentence at the time it was
imposed. Because section 1170, subdivision (d)(1)(A), refers to the “offense
for which the defendant was sentenced to imprisonment for life without the
possibility of parole” (italics added), and Heard was sentenced to the
functional equivalent of a life without parole sentence, he is similarly
situated with the juvenile offenders whose sentences make them eligible to
seek resentencing.
As for the People’s claim that the crimes committed by the juvenile
offenders eligible to petition for resentencing are different from the crimes
committed by those who cannot seek resentencing, we do not find this
distinction is relevant. The People rely on People v. Sanchez (2020) 48
Cal.App.5th 914, 920 (Sanchez), which involved an equal protection challenge
to former section 1170.95.14 At that time, former section 1170.95 provided
that “[a] person convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court that
sentenced the petitioner to have the petitioner’s murder conviction vacated
and to be resentenced on any remaining counts” if certain specified conditions
were met. (See Sanchez, at p. 918; former § 1170.95, subd. (a), added by
Stats. 2018, ch. 1015, § 4.) The defendant in Sanchez was convicted of
voluntary manslaughter based on an incident in which he and fellow gang
members yelled at a rival gang member and the defendant’s fellow gang
14 Former section 1170.95 has since been amended and renumbered as
section 1172.6. (Stats. 2021, ch. 551, § 2 [amended, effective Jan. 1, 2022];
Stats. 2022, ch. 58, § 10 [amended and renumbered, effective June 30, 2022].)
28
members assaulted the rival, causing him to smash his head on the
pavement. (Sanchez, at p. 916.) He argued that former section 1170.95
violated equal protection by granting relief to defendants convicted of felony
murder or murder under a natural and probable consequences theory, but not
to defendants convicted of voluntary manslaughter. (Sanchez, at p. 917.)
The appellate court disagreed. It explained that former section 1170.95
was enacted in conjunction with legislation that “amend[ed] sections 188 and
189 to restrict the scope of first-degree felony murder and to eliminate
murder liability based on the natural and probable consequences doctrine,”
and “create[d] a procedure for offenders previously convicted of felony murder
or murder under a natural and probable consequences theory to obtain the
benefits of these changes retrospectively.” (Sanchez, supra, 48 Cal.App.5th at
p. 917.) The court found the defendant was not similarly situated with those
the law was intended to benefit, because he “was ‘convicted of voluntary
manslaughter, a different crime from murder, which carries a different
punishment’ ” and because “[i]n general, ‘offenders who commit different
crimes are not similarly situated.’ ” (Id. at p. 920.)
The People’s reliance on Sanchez is misplaced. The equal protection
inquiry focuses on whether two groups of people are similarly situated “ ‘ “for
purposes of the law challenged.” ’ ” (Morales, supra, 63 Cal.4th at p. 408,
italics added.) Unlike former section 1170.95, the resentencing provision
currently codified at section 1170, subdivision (d)(1), was not enacted in
conjunction with legislation that narrowed the scope of theories available to
support particular homicide offenses, and its purpose was not to create a
procedure for vacating convictions. In stark contrast to former section
1170.95, section 1170, subdivision (d)(1), does not make the defendant’s
conviction of a particular offense a requirement for seeking resentencing.
29
(See § 1170, subd. (d)(1)(A).) In short, Sanchez involved a different
ameliorative law with a different purpose and different requirements than
the provision at issue in this case. The Sanchez court’s reasons for finding
the defendant convicted of voluntary manslaughter insufficiently similar to
the defendants eligible for relief under former section 1170.95 simply do not
apply here.
We conclude that for purposes of section 1170, subdivision (d)(1)(A),
Heard is similarly situated with those defendants who are eligible to petition
for resentencing.
B. The Resentencing Provision’s Differential Treatment of Juvenile
Offenders Sentenced to Life Without Parole and Juvenile Offenders
Sentenced to the Functional Equivalent of Life Without Parole Fails
Rational Basis Scrutiny
Next, we must consider whether the disparate treatment of the two
categories of juvenile offenders is constitutionally justified. Both sides
contend we should answer this question by applying the rational basis test.
We agree. “Where a class of criminal defendants is similarly situated to
another class of defendants who are sentenced differently, courts look to
determine whether there is a rational basis for the difference.” (People v.
Edwards (2019) 34 Cal.App.5th 183, 195.) “ ‘This standard of rationality does
not depend upon whether lawmakers ever actually articulated the purpose
they sought to achieve.’ ” (Johnson v. Department of Justice (2015) 60 Cal.4th
871, 881.) “ ‘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.” ’ [Citation.] To mount a successful rational basis challenge, a party
must ‘ “negative every conceivable basis” ’ that might support the disputed
30
statutory disparity.” (Ibid.) “If a plausible basis exists for the disparity,
courts may not second guess its ‘ “wisdom, fairness, or logic.” ’ ” (Ibid.)
Heard contends there is no rational basis for making juvenile offenders
sentenced to explicit terms of life without parole eligible for resentencing
under section 1170, subdivision (d)(1), while denying the same opportunity to
juvenile offenders sentenced to terms that amount to the functional
equivalent of life without parole. We agree. The resentencing provision has
been called “a legislative ‘act of lenity’ designed to permit defendants to
secure a ‘modification downward’ of their sentences.” (People v. Gibson (2016)
2 Cal.App.5th 315, 327.) Though apparently initially conceived as a means
for reducing the sentence of a juvenile offender sentenced to life without
parole to one that provided an opportunity for parole,15 section 3051,
15 When a recall petition filed under the authority of section 1170,
subdivision (d)(1), is granted, the sentencing court has “the discretion . . . to
resentence the defendant in the same manner as if the defendant had not
previously been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.” (§ 1170, subd. (d)(7).) Such provisions
have been held to give the resentencing court “jurisdiction to modify every
aspect of the sentence, and not just the portion subjected to the recall.
[Citations.] In this situation, . . . the resentencing court may consider ‘any
pertinent circumstances which have arisen since the prior sentence was
imposed.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893 [discussing recall of
sentence under section 1170, former subdivision (d)]; see Dix v. Superior
Court (1991) 53 Cal.3d 442, 458 [observing that section 1170, former
subdivision (d) allowed the trial court, on its own motion, within 120 days of
the date of commitment, to “ ‘recall the sentence and commitment [previously
ordered] and resentence the defendant in the same manner as if the
defendant had not been sentenced previously’ ”].) In Lopez, supra, 4
Cal.App.5th at pages 652 to 653, two juveniles initially sentenced to life
without parole were each placed on five years of probation after the trial
court granted their petitions for resentencing. As this example reveals, the
benefit provided by section 1170, subdivision (d)(1), can extend beyond
resentencing the offender to a term that includes the possibility of parole.
31
subdivision (b)(4), now largely fulfills that purpose. (See § 3051, subd. (b)(4).)
Even so, the resentencing provision remains operative and available to
offenders sentenced to explicit life without parole terms.
We can conceive of no legitimate reason for making juvenile offenders
sentenced to explicit life without parole terms eligible to seek resentencing
but not juvenile offenders sentenced to the equivalent of a life without parole
sentence. Both groups, subject to limited exceptions, are now eligible for
youth offender parole hearings.16 Heard will receive his youth offender
parole hearing after 25 years of incarceration; so will a juvenile offender
sentenced to an explicit term of life without parole. (§ 3051, subd. (b)(3), (4).)
And yet only the latter group is permitted to petition for resentencing.
The People’s sole justification for the differential treatment is that the
Legislature “could have reasonably concluded that the punishment of [life
without parole] imposed on those under age 18 could be excessive and this
was an appropriate means of reform by allowing for reconsideration of such a
sentence.” But as Heard points out, the same concern applies equally to
juveniles sentenced to the functional equivalent of life without parole.
Nor can the differential treatment be justified by differences in the
relative culpability of each group. The United States Supreme Court, in
addressing the justifications for juvenile punishment, has recognized that a
criminal sentence must relate to the culpability of the offender. (See
Graham, supra, 560 U.S. at p. 71.) Resentencing under section 1170,
16 The Legislature has excluded from relief under section 3051 juvenile
offenders sentenced under the Three Strikes Law or the “One Strike” sex
offender law. (See § 3051, subd. (h) [stating section 3051 “shall not apply to
cases in which sentencing occurs pursuant to Section 1170.12, subdivisions
(b) to (i), inclusive, of Section 667, or Section 667.61”].)
32
subdivision (d)(1), is available to juvenile offenders convicted of first degree
murder whose cases involve a special circumstances finding. (See § 190.5,
subd. (b).) Special circumstances murders are considered “the most heinous
acts” proscribed by law. (In re Nunez (2009) 173 Cal.App.4th 709, 728.) They
are “more severe and more deserving of lifetime punishment than nonspecial
circumstance first degree murder.” (In re Williams (2020) 57 Cal.App.5th
427, 436.) By contrast, “ ‘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.’ ” (Contreras, supra, 4
Cal.5th at p. 382, quoting Graham, at p. 69.) Section 1170, subdivision (d)(1),
thus has the incongruous effect of extending sentencing leniency exclusively
to the category of offenders generally regarded as the least deserving of it.
(See Contreras, at p. 382 [observing that section 3051, by making juveniles
convicted of special circumstances murder eligible for youth offender parole
hearings while denying youth offender parole hearings to juvenile One Strike
sex offenders, has the “anomalous” effect of “treat[ing] a nonhomicide offense
more harshly than special circumstance murder”].) The gravity of the crimes
committed by the two groups of juvenile offenders thus fails to explain their
differential treatment.
We have also considered whether the Legislature might have viewed a
juvenile offender whose multiple offenses cause him to receive a lengthy
term-of-years sentence as more culpable, and more deserving of severe
punishment, than an offender who commits a single, albeit more serious
offense. However, even if one accepts this as a logical premise, it fails when
one considers how section 1170, subdivision (d)(1), operates. Although
33
section 1170, subdivision (d)(1), makes a juvenile offender sentenced to an
explicit life without parole term eligible to petition for resentencing, nothing
in the provision precludes a juvenile who receives that same sentence plus
additional terms imposed for additional offenses or enhancements from
petitioning for resentencing. The number of offenses theoretically committed
by each group of offenders also fails to justify their disparate treatment.
In sum, we are unable to identify a rational basis for making juveniles
sentenced to an explicitly designated life without parole term, but not
juveniles sentenced to the functional equivalent of life without parole, eligible
to petition for resentencing under section 1170, subdivision (d)(1). As a
consequence, denying Heard the opportunity to petition for resentencing
under this provision violates his right to equal protection of the laws.17
We will therefore reverse the trial court’s order denying Heard’s
petition for recall and resentencing on the ground that his sentence rendered
him ineligible to petition for resentencing. Because the trial court denied
Heard’s petition on this ground, it did not consider the merits of the petition.
17 Heard’s equal protection claim appears to embrace the position—a
position the People do not address—that the canon of constitutional
avoidance requires us to construe section 1170, subdivision (d)(1)(A), to avoid
this equal protection violation. To the extent Heard advances this argument,
we reject it. The canon of constitutional avoidance applies when a statute
“ ‘ “is susceptible of two constructions, one of which will render it
constitutional and the other unconstitutional in whole or in
part[.]” ’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1373.) It “is a tool for
choosing between competing plausible interpretations of a statutory text”
(Clark v. Suarez Martinez (2005) 543 U.S. 371, 381), “not a method of
adjudicating constitutional questions by other means” (ibid.). As we have
concluded, section 1170, subdivision (d)(1)(A), cannot plausibly be interpreted
to apply to juvenile offenders who were not sentenced to an explicitly
designated life without parole term. For this reason, the canon of
constitutional avoidance does not apply.
34
(See § 1170, subd. (d)(5) [requiring the court to determine whether, “by a
preponderance of the evidence that one or more of the statements specified in
subparagraphs (A) to (D), inclusive, of paragraph (2) is true”].) Upon remand,
the court must consider the merits of the petition and proceed in accordance
with section 1170, subdivision (d)(1)’s directives. We express no opinion on
the outcome of that proceeding.
DISPOSITION
The June 28, 2021 order denying Heard’s petition for recall of sentence
and resentencing is reversed. The matter is remanded to the trial court for
further proceedings in accordance with this opinion.
DO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
35